# Appendix — Demjanjuk v. Petrovsky

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1986
- **Citation:** 475 U.S. 1016

## Text

FILE

No.

¥ GERK

Dapene Dutt, US.

RD °°

REG 20 1985

101, UR.

In the Supreme Court of the United States

October Term, 1985

JOHN DEMJANJUK,
Petitioner,

VS.

JOSEPH PETROVSKY, et al.,
Respondents.

APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI
To the United States Court of Appeals
For the Sixth Circuit

Mark J. O’Connor, Counsel of Record
510 Brisbane Building
Buffalo, New York 14230
(716) 854-2839
JOHN J. GILL
948 Engineers Building

Cleveland, Ohio 44114
(216) 241-5040

Davin C. EISLER

330 Engineers Building
Cleveland, Ohio 44114
(216) 771-8400

Counsel for Petitioner

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647

TABLE OF CONTENTS

Judgment Entry and Opinion of the United States
Court of Appeals for the Sixth Circuit (October
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Memorandum Opinion and Order of the United States
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Judgment Entry of the United States District Court
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Memorandum Opinion and Order of the United States
District Court (April 15, 1985) ...........2......... ... A38

Opinion and Order of the United States District Court
(February 21, 1985) .................... pebincciecaieanbaanedbsalieapnaiie A96

Order of the United States District Court (December
6, 1984 and December 11, 1984) 000... eee eee eee A120

Complaint of the United States (November 18, 1983) ....A131
Declaration of Jeffrey H. Smith (November 17, 1983)

Convention on Extradition Between the Government
of the United States of America and the Govern-
ment of the State of Israel - 14 U.S.T. 1717 (En-

tered into Force December 5, 1963) 0.0.0... Al42
Nazis and Nazi Collaborators (Punishment) Law, 5710-
SE ccincccatirvninnsitiinuititiensnsstiakiiansttimnadeinliea on-eeeeedt 154

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APPENDIX

JUDGMENT ENTRY AND OPINION OF THE
UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT

(Filed October 31, 1985)
No. 85-3435

UNITED STATES COURT OF APPEALS
For THE SIxtH CIRCUIT

JOHN DEMJANJUK,
Petitioner-Appellant,
v.

JOSEPH PETROVSKY, et al.,
Respondents-Appellees.

On APPEAL from the United States District Court
for the Northern District of Ohio

Decided and Filed October 31, 1985

Before: Livety, Chief Judge; KerrH and Merarrt, Cir-
cuit Judges.

LiveLy, Chief Judge. This international extradition
case is before the court on appeal from the denial of a pe-
tition for a writ of habeas corpus.

a

The petitioner, John Demjanjuk, is a native of the
Ukraine, one of the republics of the Soviet Union. Dem-
janjuk was admitted to the United States in 1952 under
the Displaced Persons Act of 1948 and became a naturalized

A2

United States citizen in 1958. He has resided in the Cleve-
land, Ohio area since his arrival in this country.

In 1981 the United States District Court for the North-
ern District of Ohio revoked Demjanjuk’s certificate of
naturalization and vacated the order admitting him to
United States citizenship. See United States v. Demjanjuk,
518 F.Supp. 1362 (N.D. Ohio 1981), aff'd per curiam, 680
F.2d 32 (1982), cert. denied, 459 U.S. 1036 (1982). Chief
Judge Battisti of the district court entered extensive
findings of fact from which he concluded that the certifi-
cate and order “were illegally procured and were procured
by willful misrepresentation of material facts under 8
U.S.C. § 1451(a).” 518 F.Supp. at 1386.

The district court found that Demjanjuk was con-
scripted into the Soviet Army in 1940 and was captured
by the Germans in 1942. After short stays in several
German POW camps and a probable tour at the Traw-
niki SS training camp in Poland, Demjanjuk became a
guard at the Treblinka concentration camp, also in Poland,
late in 1942. In his various applications for immigration
to the United States the petitioner misstated his place of
residence during the period 1937-1948 and did not reveal
that he had worked for the SS at Treblinka or served
in a German military unit later in the war. In the de-
naturalization proceedings Demjanjuk admitted that his
statements concerning residence were false and that he
had in fact served in a German military unit. He stead-
fastly denied that he had been at Trawniki or Treblinka,
though documentary evidence placed him at Trawniki and
five Treblinka survivors and one former German guard
at the camp identified Demjanjuk as a Ukranian guard
who was known as “Ivan or Iwan Grozny,” that is, “Ivan
the Terrible.”

A3

Following the denaturalization order the government
began deportation proceedings against Demjanjuk. While
these proceedings were underway the State of Israel
filed with the United States Department of State a re-
quest for the extradition of Demjanjuk. The United States
Attorney for the Northern District of Ohio, acting on
behalf of the State of Israel, filed a complaint in the dis-
trict court seeking the arrest of Demjanjuk and a hear-
ing on the extradition request. Following a hearing the
district court entered an order certifying to the Secretary
of State that Demjanjuk was subject to extradition at
the request of the State of Israel pursuant to a treaty on
extradition between the United States and Israel signed
December 10, 1962, effective December 5, 1963. Bond
previously granted Demjanjuk was revoked and he was
committed to the custody of the Attorney General of the
United States pending the issuance of a warrant of sur-
render by the Secretary of State.

I.
A.

There is no direct appeal from an order certifying ex-
tradition, and the only method of review is by collateral
habeas corpus proceedings. Collins v. Miller, 252 USS.
364, 369 (1920); Caplan v. Vokes, 649 F.2d 1336, 1340 (9th
Cir. 1981). The scope of review in habeas corpus following
an extradition order is quite narrow. After differentiat-
ing between the requirements of probable cause and proof
beyond a reasonable doubt, Justice Holmes delineated the
scope of review as follows in Fernandez v. Phillips, 268
U.S. 311, 312 (1925):

The foregoing are general principles relating to
extradition, but there are further limits to habeas

a i

A4

corpus. That writ as has been said very often cannot
take the place of a writ of error. It is not a means
for rehearing what the magistrate already has decided.
The alleged fugitive from justice has had his hearing
and habeas corpus is available only to inquire whether
the magistrate had jurisdiction, whether the offence
charged is within the treaty and, by a somewhat lib-
eral extension, whether there was any evidence war-
ranting the finding that there was reasonable ground
to believe the accused guilty. Benson v. McMahon,
127 U.S. 457. Re Luis Oteiza y Cortes, 136 U.S. 330.
Bryant v. United States, 167 U.S. 104, 105. Elias v.
Ramirez, 215 U.S. 398, 406.

Though Demjanjuk acknowledges these limitations on the
scope of appeal, he presents a somewhat confusing melange
of arguments. We will attempt to deal with them sep-
arately.

B.

Before reaching the more technical arguments related
to jurisdiction of the district court and the question of
whether the crimes charged were within the treaty pro-
visions, we deal with the sufficiency of the evidence. As
noted, there was sworn testimony by affidavits from six
witnesses who were at Treblinka in 1942 and 1943 who
identified Demjanjuk. These witnesses stated that Dem-
janjuk was a guard who herded prisoners into the gas
chambers and then actually operated the mechanism which
filled the chambers with gas. In addition, several of the
witnesses testified that they saw Demjanjuk beat and
maim prisoners, some of whom died. Justice Holmes
wrote in Fernandez that our task is to determine “whether
there was any evidence warranting the finding that there

A5

was reasonable ground to believe the accused guilty.” Id.
(emphasis added). Surely the evidence in this case satis-
fied this lenient standard.

This court does not sit to rehear the district court’s
findings. Escobedo v. United States, 623 F.2d 1098, 1101
(5th Cir. 1980). The evidence which the district court
relied upon was properly authenticated by an official of
the U.S. Department of State as required by 18 U.S.C.
§ 3190. If properly authenticated, evidence may be re-
ceived in an extradition case which could not have been
received at a preliminary examination under state law.
Collins v. Leisel, 259 U.S. 309, 313 (1922). Thus it is
immaterial that Demjanjuk had no opportunity to cross
examine the affiants. The only evidentiary function of
the extradition court is to determine whether there is
sufficient evidence to justify holding a person for trial
in another place. We are satisfied that the district court
relied upon admissible evidence in making its determina-
tion in this case.

As noted earlier, Demjanjuk was identified by docu-
mentary evidence as having been at the SS training camp,
Trawniki. Exhibits 5 and 6 were the front and back of
a German document which identified “Iwan Demjanjuk”
as a guard in an SS unit. The heading showed that it
was issued at Trawniki. On appeal Demjanjuk argues
strenuously that the Trawniki documents were forged and
that the government perpetrated a fraud upon the court
by introducing them. This same argument was made in
the denaturalization proceedings. The district court dis-
cussed this issue at some length in its opinion in those
proceedings, and rejected Demjanjuk’s contentions. 518
F.Supp. at 1365-69. This issue was also addressed by the
district court in denying post-judgment motions for relief.

A6

In making these arguments as to the authenticity of
the Trawniki documents, Demjanjuk overlooks one very
important fact. The district court in the extradition pro-
ceedings made a specific finding that the other evidence
identifying Demjanjuk as the guard “Ivan” at Treblinka
was sufficient to support the extradition order without
reference to the Trawniki document. Thus, even if this
documentary evidence had been rejected, the eyewitness
evidence alone was found sufficient. Since the district
court did not rely on the “Trawniki card,” its validity
is not before the court. Of course, if we found any sup-
port in the record for the claim that the government
deliberately offered a forged document as evidence, we
would examine the entire proceedings for other evidence
of fraud. However, the record before us lends no support
to this very serious charge, and we reject it. Witnesses
fully qualified to testify on the subject stated their opin-
ions that the Trawniki decuments were authentic.

C.

One other issue raised by Demjanjuk requires con-
sideration. On appeal Demjanjuk argues that Judge
Battisti, having presided at the denaturalization proceed-
ings, should have recused himself from the extradition
hearing. In making this contention Demjanjuk relies on
28 U.S.C. § 455(a) which requires a judge to disqualify
himself “in any proceeding in which his impartiality might
reasonably be questioned.” The argument is that Judge
Battisti, having found that Demjanjuk committed acts
which required his denaturalization, might reasonably be
considered biased against the same party in a subsequent
extradition action. The problem with this argument is
that in order to be disqualifying, a judge’s alleged bias

A7

must emanate from some “extrajudicial source” rather
than from participation in judicial proceedings. United
States v. Grinnell Corp., 384 U.S, 563, 583 (1966).

Recusal is not required of a judge assigned to consider
a habeas corpus action following conv'ction at a trial over
which the judge presided. In fact Rule 4(a) of the rules
applicable to actions seeking habeas relief from a federal
conviction pursuant to 28 U.S.C. § 2255 requires the peti-
tion to be presented to the judge who presided over the
petitioner’s trial or sentencing. While the present action
was brought under a different habeas corpus statute, 28
U.S.C. § 2241, the reasons for the rule apply equally to
both. Judicial economy is served by requiring a judge
familiar with the case to consider collateral attacks on
the judgment. In the absence of some evidence of actual
bias or prejudice from some source other than his prior
judicial contact with a related case, § 455(a) does not
require a judge to disqualify himself in extradition pro-
ceedings. David v. Attorney General, 699 F.2d 411, 416
(7th Cir.), cert. denied, 464 U.S. 832 (1983). We find
no evidence of actual bias in this case.

Under a local rule of the Northern District of Ohio
Demjanjuk’s habeas corpus action was assigned to Chief
Judge Battisti. The district court entered a memorandum
and order in which it dealt with each of the habeas corpus
claims and concluded that Demjanjuk was not being held
in violation of the Constitution, treaties or laws of the
United States. The effect of the certification to the Secre-
tary of State was stayed and Demjanjuk appealed to this
court.

A8

IT.
A.

The pertinent portions of the treaty (Convention on
Extradition) between the United States and Israel (here-
after the Treaty) found in the first three articles and the
thirteenth article, are set forth:

Article I

Each Contracting Party agrees, under the condi-
tions and circumstances established by the present
Convention, reciprocally to deliver up persons found
in its territory who have been charged with or con-
victed of any of the offenses mentioned in Article
II of the present Convention committed within the
territorial jurisdiction of the other, or outside thereof
under the conditions specified in Article III of the
present Convention.

Article IT

Persons shall be delivered up according to the pro-
visions of the present Convention for prosecution when
they have been charged with, or to undergo sentence
when they have been convicted of, any of the fol-
lowing offenses:

1. Murder.
2. Manslaughter.

3. Malicious wounding; inflicting grievous bodily
harm.

A9

Article ITI

When the offense has been committed outside the
territorial jurisdiction of the requesting Party, extradi-
tion need not be granted unless the laws of the re-
quested Party provide for the punishment of such an
offense committed in similar circumstances.

The words “territorial jurisdiction” as used in this
Article and in Article I of the present Convention
mean: territory, including territorial waters, and
the airspace thereover belonging to or under the con-
trol of one of the Contracting Parties, and vessels
and aircraft belonging to one of the Contracting Parties
or to a citizen or corporation thereof when such vessel
is on the high seas or such aircraft is over the high
seas.

Article XIII

A person extradited under the present Convention
shall not be detained, tried or punished in the territory
of the requesting Party for any offense other than
that for which extradiction has been granted nor be
extradited by that Party to a third State unless:

(Exceptions not applicable).

The Israeli warrant on which the extradition request
was based was issued pursuant to a request which charged
Demanjuk with having “murdered tens of thousands of
Jews and non-Jews” while operating the gas chambers to
exterminate prisoners at Treblinka. It further asserts
that the acts charged were committed “with the intention
of destroying the Jewish people and to commit crimes
against humanity.” The complaint in the district court

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equated this charge with the crimes of “murder and
malicious wounding [and] inflicting grievous bodily harm,”
listed in the Treaty. The warrant was issued pursuant
to a 1950 Israeli statute, the Nazis and Nazi Collaborators
(Punishment) Law. This statute made certain acts, in-
cluding “crimes against the Jewish people,” “crimes against

humanity”

and “war crimes committed during the Nazi

period” punishable under Israeli law. The statute defines
these crimes as follows:

“crime against the Jewish people” means any of the
following acts, committed with intent to destroy the
Jewish people in whole or in part:

1,
2.
3.

7.

killing Jews;
causing serious bodily or mental harm tu Jews;

placing Jews in living conditions calculated to
bring about their physical destruction;

imposing measures intended to prevent births
among Jews;

forcibly transferring Jewish children to an-
other national or religious group;

destroying or desecrating Jewish religious or
cultural assets or values;

inciting to hatred of Jews;

“crime against humanity” means any of the following

acts:

murder, extermination, enslavement, starvation or
deportation and other inhumane acts committed
against any civilian population, and persecution
on national, racial, religious or political grounds;

All

“war crime” means any of the following acts:

murder, ill-treatment or deportation to forced lab-
our or for any other purpose, of civilian population
of or in occupied territory; murder or ill-treat-
ment of prisoners of war or persons on the seas;
killing of hostages; plunder of public or private
property; wanton destruction of cities, towns or
villages; and devastation not justified by military
necessity.

B.

Demjanjuk contends that the district court had no
jurisdiction to consider the request for extradition. He
advances several discrete arguments in support of this
position. As he did in the district court, Demjanjuk main-
tains that the crime he is charged with is not included in the
listing of offenses in the treaty. It is his position that
“murdering thousands of Jews and non-Jews” is not cov-
ered by the treaty designation of “murder.” It is a funda-
mental requirement for international extradition that the
crime for which extradition is sought be one provided for
by the treaty between the requesting and the requested
nation. 18 U.S.C. § 3184; Fernandez v. Phillips, 268 U.S.
at 312. We have no difficulty concluding that “murder”
includes the mass murder of Jews. This is a logical reading
of the treaty language and is the interpretation given the
treaty by the Department of State. That interpretation
is entitled to considerable deference, as this court noted
in Argento v. Horn, 241 F.2d 258, 263 (6th Cir. 1957):

A construction of a treaty by the political department
of the government, while not conclusive upon a court
called upon to construe such a treaty in a matter in-
volving personal rights, is nevertheless of much weight.
[Quoting Charlton v. Kelly, 229 U.S. 447, 468 (1913).]

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Demjanjuk also argues that the district court had no
jurisdiction because there is a requirement of “double
criminality” in international extradition cases. The Re-
statement of the Foreign Relations Law of the United
States, Tentative Draft No. 5 (1984) (hereafter “Restate-
ment”), provides in § 487:

(1) No person may be extradited pursuant to
§ 486 [The Basic Rule]

(c) If the offense with which he is charged
or of which he has been convicted is not punish-
able as a serious crime both in the requesting and
in the requested state.

The Supreme Court stated in Collins v. Loisel, 25 U.S. 309,
311 (1922), “It is true that an offense is extraditable only
if the acts charged are criminal by the laws of both coun-
tries.” See also Brauch v. Raiche, 618 F.2d 843, 847 (1st
Cir. 1980) (“The requirement that the acts alleged be
criminal in both jurisdictions is central to extradition
sO

We believe the double criminality requirement was
met in this case. As the Court stated in Collins v. Loisel:

The law does not require that the name by which
the crime is described in the two countries shall be
the same; nor that the scope of the liability shall be
coextensive, or, in other respects, the same in the
two countries. It is enough if the particular act
charged is criminal in both jurisdictions.

259 U.S. at 312 (Emphasis added). If the acts upon which
the charges of the requesting country are based are also
proscribed by a law of the requested nation, the require-

MW tae oT

ered

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ment of double criminality is satisfied. Murder is a crime
in every state of the United States. The fact that there
is no separate offense of mass murder or murder of tens
of thousands of Jews in this country is beside the point.
The act of unlawfully killing one or more persons with
the requisite malice is punishable as murder. That is
the test. The acts charged are criminal both in Israel and
throughout the United States, including Ohio. Dem-
janjuk’s argument that to interpret murder to include
murder of Jews would amount to judicial amendment of
the Treaty is absurd and offensive.

IV.
A.

A separate jurisdictional argument concerns the ter-
ritorial reach of the statutory law of Israel. Demjanjuk
relies on two facts to question the power of the State of
Israel to proceed against him. He is not a citizen or resi-
dent of Israel and the crimes with which he is charged
allegedly were committed in Poland. He also points out
that the acts which are the basis of the Israeli arrest war-
rant allegedly took place in 1942 or 1943, before the State
of Israel came into existence. Thus, Demjanjuk maintains
that the district court had no jurisdiction because Israel
did not charge him with extraditable offenses.

The scope of this nation’s international extradition
power and the function of the federal courts in the extra-
dition process are set forth in 18 U.S.C. § 3184:

§ 3184. Fugitives from foreign country to United
States

Whenever there is a treaty or convention for
extradition between the United States and any foreign

Al4

government, any justice or judge of the United States,
or any magistrate authorized so to do by a court of
the United States, or any judge of a court of record
of general jurisdiction of any State, may, upon com-
plaint made under oath, charging any person found
within his jurisdiction, with having committed within
the jurisdiction of any such foreign government any
of the crimes provided for by such treaty or conven-
tion, issue his warrant for the apprehension of the
person so charged, that he may be brought before such
justice, judge, or magistrate, to the end that the evi-
dence of criminality may be heard and considered.
If, on such hearing, he deems the evidence sufficient
to sustain the charge under the provisions of the proper
treaty or convention, he shall certify the same, to-
gether with a copy of all the testimony taken before
him, to the Secretary of State, that a warrant may
issue upon the requisition of the proper authorities
of such foreign government, for the surrender of such
person, according to the stipulations of the treaty or
convention; and he shall issue his warrant for the
commitment of the person so charged to the proper
jail, there to remain until such surrender shall be
made.

Section 3184 clearly provides that the extradition com-
plaint must charge the person sought to be extradited with
having committed crimes “within the jurisdiction of any
such foreign government,” that is, the requesting state.
This same condition is reflected in § 486(a) of the Restate-
ment, which requires the requested state to comply with
the request to arrest anc ‘eliver a person sought “on
charges of having committed a serious crime within the
jurisdiction of the requesting state.” The question is
whether the murder of Jews in a Nazi extermination camp

Ce a een

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in Poland during the 1939-1945 war can be considered,
for purposes of extradition, crimes within the jurisdiction
of the State of Israel.

B.

We look first at the Treaty. Article III provides that
when an offense has been committed outside the terri-
torial jurisdiction of the requesting party, “extradition
need not be granted unless the laws of the requested party
provide for the punishment of such an offense committed
in similar circumstances.” Demjanjuk maintains that the
“need not” language of Article III prohibits extradition
in this case because the laws of the United States do not
provide punishment for war crimes or crimes against hu-
manity. He places principal reliance on Valentine v.
United States ex rel. Neidecker, 299 U.S. 5 (1936). In
Valentine the treaty provided in part, “Neither of the
coniracting parties shall be bound to deliver up its own
citizens or subjects under the stipulations of this conven-
tion.” Id. at 7. The Supreme Court concluded that this
language did not grant discretion to the government to
extradite citizens of the United States. Demjanjuk argues
that the “need not . .. unless” language in the Treaty
presently before us similarly precludes an exercise of
discretion to extradite for any offense for which the laws
of the United States provide no punishment under similar
circumstances.

Similar arguments were made by the petitioners in
In re Assarsson, 635 F.2d 1237 (7th Cir. 1980), cert. denied,
451 U.S. 938 (1981), and In re Assarsson, 687 F.2d 1157
(8th Cir. 1982). ‘These cases involved two brothers who
were charged in Sweden with several crimes, including a
scheme to defraud an insurance company by causing a

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warehouse in Copenhagen, Denmark to be burned. The
extradition treaty between the United States and Sweden
contained language identical to that in Article III of the
United States-Israeli treaty. The Seventh Circuit con-
strued “need not . . . unless” to mean that the decision
whether to extradite is discretionary where laws of the
requested party do not provide punishment of the de-
scribed offense under similar circumstances. The court
effectively distinguished Valentine as dealing with an
unusual treaty which when read in its entirety was logi-
cally found to prohibit the extradition of U.S. citizens
rather than to grant discretion. 635 F.2d at 1245. The
Eighth Circuit adopted the same construction in upholding
the denial of habeas corpus relief to the second brother.
687 F.2d at 1163-64.

Valentine construed the treaty to grant no discretion
because it was silent on this question whereas many other
treaties explicitly granted discretion, “[T]he fact that
our Government had favored extradition treaties without
excepting citizens puts the omission of the qualifying grant
of discretionary power in a strong light.” 299 U.S. at 13.
No comparison with other existing treaties requires this
strict reading of the Treaty in the present case.

We agree with the two courts which have construed
the language which is common to the treaties with Sweden
and Israel. In our view the treaty language makes two
things clear: (1) the parties recognize the right to request
extradition for extraterritorial crimes, and (2) the re-
quested party has the discretion to deny extradition if
its laws do not provide for punishment of offenses com-
mitted under similar circumstances. This provision does
not affect the authority of a court to certify extraditability;
it merely distinguishes between cases where the requested

oo

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party is required to honor a request and those where it
has discretion to deny a request. That the specific offense
charged is not a crime in the United States does not nec-
essarily rule out extradition.

The Israeli statute under which Demjanjuk was charged
deals with “crimes against the Jewish people,’ “crimes
against humanity” and “war crimes” committed during
the Nazi years. It is clear from the language defining the
crimes, and other references to acts directed at persecuted
persons and committed in places of confinement, that
Israel intended to punish under this law those involved
in carrying out Hitler’s “final solution.” This was made
explicit in the prosecution of Adolph Eichmann in 1961.
Attorney General v. Eichmann, 36 I.L.R. 277 (Sup. Ct.
Israel 1962), reprinted in 2 Friedman, The Law of War at
1657-1687 (1972). Such a claim of extraterritorial juris-
diction over criminal offenses is not unique to Israel. For
example, statutes of the United States provide for punish-
ment in domestic district courts for murder or manslaugh-
ter committed within the maritime jurisdiction (18 U.S.C.
§ 1111) and murder or manslaughter of internationally
protected persons wherever they are killed (18 U.S.C.
§ 1116(c)). We conclude that the reference in 18 U.S.C.
§ 3184 to crimes committed within the jurisdiction of the
requesting government does not refer solely to territorial
jurisdiction. Rather, it refers to the authority of a nation
to apply its laws to particular conduct. In international
law this is referred to as “jurisdiction to prescribe.” Re-
statement § 401(1).

Cc.

The law of the United States includes international
law. The Paquete Habana, 175 US. 667, 712 (1900). Inter-

Al8

national law recognizes a “universal jurisdiction” over
certain offenses. Section 404 of the Restatement defines
universal jurisdiction:

§ 404: Universal Jurisdiction to Define and Punish
Selected Offenses

A state may exercise jurisdiction to define and
punish certain offenses recognized by the community
of nations as of universal concern, such as piracy,
slave trade, attacks on or hijacking of aircraft, geno-
cide, war crimes, and perhaps terrorism, even where
none of the bases of jurisdiction indicated in § 402
is present.

This “universality principle” is based on the assumption
that some crimes are so universally condemned that the
perpetrators are the enemies of all people. Therefore, any
nation which has custody of the perpetrators may punish
them according to its law applicable to such offenses. This
principle is a departure from the general rule that “the
character of an act as lawful or unlawful must be de-
termined wholly by the law of the country where the act
is done.” American Banana Co, v. United Fruit Co., 213
U.S. 347, 356 (1909).

The wartime allies created the Internationa] Military
Tribunal which tried major Nazi officials at Nuremberg
and courts within the four occupation zones of post-war
Germany which tried lesser Nazis. All were tried for
committing war crimes, and it is generally agreed that
the establishment of these tribunals and their proceedings
were based on universal jurisdiction. E.g. Sponsler, The
Universality Principle of Jurisdiction and the Threatened
Trials of American Airmen, 15 Loy.L.Rev. 43, 48-51 (1968-
69).

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Demjanjuk argues that the post-war trials were all
based on the military defeat of Germany and that with
the disestablishment of the special tribunals there are no
courts with jurisdiction over alleged war crimes. This
argument overlooks the fact that the post-war tribunals
were not military courts, though their presence in Germany
was made possible by the military defeat of that country.
These tribunals did not operate within the limits of tra-
ditional military courts. They claimed and exercised a
much broader jurisdiction which necessarily derived from
the universality principle. Whatever doubts existed prior
to 1945 have been erased by the general recognition since
that time that there is a jurisdiction over some types of
crimes which extends beyond the territorial limits of any
nation.

Turning again to the Restatement, § 443 appears to
apply to the present case:

§ 443. Jurisdiction to Adjudicate in Aid of Universal
and Other Non-Territorial Crimes.

A state’s courts may exercise jurisdiction to en-
force the state’s criminal laws which punish universal
crimes (§ 404) or other non-territorial offenses within
the state’s jurisdiction to prescribe (§§ 402-403).

Israel is seeking to enforce its criminal law for the punish-
ment of Nazis and Nazi collaborators for crimes universally
recognized and condemned by the community of nations.
The fact that Demjanjuk is charged with committing these
acts in Poland does not deprive Israel of authority to bring
him to trial.

Further, the fact that the State of Israel was not in
existence when Demjanjuk allegedly committed the of-

A20

fenses is no bar to Israel’s exercising jurisdiction under
the universality principle. When proceeding on that ju-
risdictional premise, neither the nationality of the accused
or the victim (s), nor the location of the crime is significant.
The underlying assumption is that the crimes are offenses
against the law of nations or against humanity and that
the prosecuting nation is acting for all nations, This being
so, Israel or any other nation, regardless of its status in
1942 or 1943, may undertake to vindicate the interest of
all nations by seeking to punish the perpetrators of such
crimes.

D.

We conclude that the jurisdictional challenges to the
district court’s order must fail. The crime of murder is
clearly included in the offenses for which extradition is
to be granted under the treaty. Murder is a crime both
in Israel and in the United States and is included in the
specifications of the Nazis and Nazi Collaborators (Punish-
ment) Law; the requirement of “double criminality” is
met; and, the State of Israel has jurisdiction to punish for
war crimes and crimes against humanity committed out-
side of its geographic boundaries.

Though it was not explicitly argued, we have consid-
ered whether recognition of the power of Israeli courts to
punish for war crimes committed outside of its national
territory violates any right of Demjanjuk under the Con-
stitution of the United States. Demjanjuk had notice
before he applied for residence or citizenship in the United
States that this country, by participating in post-war
trials of German and Japanese war criminals, recognized
the universality principle. Israel has chosen to proceed
under that principle, and we do not supervise the conduct

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A2l

of another judicial system. To do so “would directly con-
flict with the principle of comity upon which extradition
is based.” Jhirad v. Fernandina, 536 F.2d 478, 485 (2d
Cir.), cert. denied, 429 U.S. 833 (1976). In the absence
of any showing that Demjanjuk will be subjected to pro-
cedures “antipathetic to a federal court’s sense of decency,”
Gallina v. Fraser, 278 F.2d 77, 79 (2d Cir.), cert. denied,
364 U.S. 851 (1960), this court will not inquire into the
procedures which will apply after he is surrendered to
Israel. There is absolutely no showing in this record that
Israel will follow procedures which would shock this
court’s “sense of decency,” United States ex rel. Bloomfield
v, Gengler, 507 F.2d 925, 928 (2d Cir. 1974).

V.

The remaining inquiry relates to how the “principle of
specialty” applies to this case. This principle requires
that the requesting country not prosecute for crimes listed
in the treaty but for which extradition was not granted.
Shapiro v. Ferrandina, 478 F.2d 894, 905 (2d Cir.), cert.
dismissed, 414 U.S. 884 (1973). It is also a condition found
in Article XIII of the Treaty, which provides that a person
extradicted thereunder shall not be tried or punished by
the requesting party “for any offense other than that for
which extradition has been granted.”

The district court clearly certified that Demjanjuk
was subject to extradition solely on the charge of murder.
Though some of the acts which Demjanjuk is charged
with may also constitute other offenses listed in the treaty,
he may be tried in Israel only on that charge. However,
the particular acts of murder for which he may be tried
depend upon Israeli law. Israel may try him under the
provisions of the Nazis and Nazi Collaborators (Punish-

A22

ment) Law for “crimes against the Jewish people” (“kill-
ing Jews,” a species of murder), “crimes against humanity”
(“murder . . . committed against any civilian population” )
and “war crimes” (“murder ... of civilian population of or
in occupied territory”). The principle of specialty does
not impose any limitation on the particulars of the charge
so long as it encompasses only the offense for which ex-
tradition was granted.

We have discussed the principle of specialty because
it was argued by Demjanjuk and we have attempted to
deal with every issue raised. However, we feel constrained
to note that there is a serious question whether Demjanjuk
has standing to assert the principle of specialty. The right
to insist on application of the principle of specialty belongs
to the requested state, not to the individual whose extradi-
tion is requested. Berenguer v. Vance, 473 F.Supp. 1195,
1197 (D.D.C. 1979). See also Shapiro v. Ferrandina, 478
F.2d at 906, where the court recognizes this rule of inter-
national law while proceeding in a habeas appeal to remedy
the failure of the magistrate to separate extraditable and
non-extraditable offenses.

CONCLUSION

The district court did not err in denying Demjanjuk’s
petition for a writ of habeas corpus. Under established
principles of international law the request by the State
of Israe] for extradition of Demjanjuk was within the
provisions of the Treaty. The district court also correctly
determined that it had jurisdiction of the matter and that
the evidence presented was sufficient to sustain the charge
as required by 18 U.S.C. § 3184. The district court prop-
erly certified to the Secretary of State that Demjanjuk is
subject to extradition to Israe!.

—

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A23

Neither the district court nor this court is empowered
to order the extradition of any person. Extradition is an
act of the Executive Branch. “The ultimate decision to
extradite is a matter within the exclusive prerogative of
the Executive in the exercise of its powers to conduct for-
eign affairs.” Escabedo v. United States, 623 F.2d at 1105
(citations omitted). A decision to attach conditions to an
order of extradition is within the discretion of the Secre-
tary of State, not the courts.

The judgment of the district court is affirmed.

A24

MEMORANDUM AND OPINION OF THE
UNITED STATES DISTRICT COURT

(Filed May 17, 1985)
No. C85-1226

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

JOHN DEMJANJUK,
Petitioner,

VS.

JOSEPH PETROVSKY, Warden, et al., Federal Prison
Medical Facility Springfield, Mo.
Respondents.

MEMORANDUM OPINION AND ORDER
BattistI, C.J.

This matter is before the Court today on John Dem-
janjuk’s Petition for Writ of Habeas Corpus (filed April 25,
1985) challenging the April 15, 1985 certificate of extra-
ditability.’

1. John Demjanjuk’s counsel filed a Petition for a Writ of
Habeas Corpus by a Prisoner in Federal Custody in the Northern
District of Ohio on April 25, 1985. The petition was assigned
to the Honorable Thomas D. Lambros under the rendom as-
signment system which is the standard operating procedure in
this District. L. Civ. R. 7.07. Judge Lambros transferred the
petition to this Court as a “related matter”, pursuant to Local
Civil Rule 7.09(3).

Rule 7.09(3) provides that:

Subsequent proceedings in civil cases and in criminal cases
(including petitions under 28 U.S.C. Section 2255) shall be
assigned to the judge who heard the originai case.

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A25

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In October of 1983, the State of Israel requested the
extradition of John Demjanjuk from the United States to
stand trial in Israel for murder and other offenses alleged
under the Nazis and Nazi Collaborators (Punishment)
Law, sections 1-4, pursuant to an Arrest Warrant, issued
by Judge A.M. Simcha of the Magistrates Court, Jerusa-
lem, Israel on October 18, 1983. The request was based
upon the Convention on Extradition between the Govern-
ment of the United States of America and the Government
of the State of Israel. T.ILAS. 5476, 14 US.T. 1717
(entered into force December 5, 1963) [hereinafter the
“Treaty”]. Acting on behalf of Israel, the United States
government filed a Complaint in the Northern District of
Ohio seeking the extradition of John Demjanjuk to Israel,
on November 18, 1983. The extradition matter was as-
signed to this Court, as a matter related to the denatural-
ization proceedings against John Demjanjuk over which
this Court presided. United States v. Demjanjuk, 518
F. Supp. 1362 (N.D. Ohio 1981), aff'd 680 F.2d 32 (6th
Cir. 1982) cert. denied, 459 U.S. 1036 (1982), pursuant to
Local Civil Rule 7.09(4)(c) (N.D. Ohio).?

2. This extradition case originally was assigned to this
judge consistent with standard district court procedure, as stated
in the Local C vil Rules of this district. At the time the gov-
ernment filed its Complaint, this Court had Demjanjuk’s First
Motion to Vacate Judgment in the denaturalization proceeding
under advisement. Local Civil Rule (N.D. Ohio) 7.09(4)(c)
(Assignment of Cases other than by Lot) provides, in relevant
part:

(4) Cases related to cases already assigned to a judge

shall be assigned or transferred to said judge. Related cases

are defined as follows:

* * *

(c) Civil cases are deemed related when a filed case (i)

relates to property involved in an earlier numbered pend-

ing suit, (ii) involves the same issue or issues of fact or
(Continued on following page)

/

A26

After the Court received extensive briefing by both
the parties and the amicus curiae, the International Human
Rights Group, the extradition hearing required by 18
U.S.C. § 3184 was held in two parts. On December 17,
1984, the question of whether a United States civilian
court has subject matter jurisdiction in an extradition pro-
ceeding where the crimes alleged occurred during war-
time, as well as several preliminary issues, was addressed.
Matter of Demjanjuk, 603 F. Supp. 1463, 1465 (N.D. Ohio
1984). On February 21, 1985, this Court found that it
did have subject matter jurisdiction to hear and decide
the extradition matter. Matter of Demjanjuk, 603 F. Supp.
1468, 1469 (N.D. Ohio 1985). On March 12, 1985, the
hearing on all other issues was held.

On April 15, 1985, this Court issued an opinion which
addresses the numerous issues of facts and law presented
by the extradition request and certifies to the Secretary
of State that John Demjanjuk is extraditable to the State
of Israel. The certification states that the John Demjanjuk
brought before the Court is the one named in the Israeli
Extradition Request and that competent and sufficient
evidence has been presented to sustain charges of “mur-
der”, which are extraditable offenses pursuant to the
Treaty. Order of April 15, 1985 at 51-52.

Petitioner John Demjanjuk argues that he is unlaw-
fully imprisoned because the extradition court has acted

Footnote continued—

grows out of the same transaction or subject matter as a
pending civil suit,... (emphasis added.)

Since the extradition case involves some of the same parties
and arose out of some of the same events as the denaturalization
proceedings, it was assigned to this judge.

In November of 1983, Demjanjuk’s First Motion to Vacate
was denied. United States v. Demjanjuk, 103 F.R.D. 1 (N.D.
Ohio 1983).

A27

“in violation of the Constitution, laws and treaties of the
United States”. Petition for a Writ of Habeas Corpus by
a Prisoner in Federal Custody at 2 (filed April 25, 1985)
[Hereinafter “(Habeas Petition”]. Petitioner argues that:
jurisdiction over the extradition proceedings was taken
contrary to the Constitution and, thus, the evidence of
identity and probable cause was improperly before the
is outside the terms of the Treaty”, id. at iii, and peti-
tioner is not properly charged, as required by 18 U.S.C.
§ 3184, id. at iii.

II. RECUSAL

Petitioner John Demjanjuk’s attorneys have orally
requested that this Court recuse itself from hearing the
petition for writ of habeas corpus. They argue that it
would be improper or inappropriate for this Court to,
in effect, review itself by examining the validity of the
April 15, 1985 certification of extraditability. In addi-
tion, they contend that there would be an appearance of
bias and impropriety for this Court to rule on the peti-
tion for writ of habeas corpus. Presumably, they base
their argument on 28 U.S.C. § 455(a) which provides:

Any justice, judge, or magistrate of the United States
shall disqualify himself in any proceeding in which
his impartiality might reasonably be questioned.

Petitioner’s request is denied.

First, petitioner’s argument has been expressly re-
jected by at least one circuit court in the context of a
petition for a writ of habeas corpus attacking extradition
proceedings. In David v. Attorney General of United
States, 699 F.2d 411 (7th Cir. 1983), David appealed the
district court’s denial of his petition for writ of habeas

A28

corpus. Judge Foreman, of the Eastern District of Illinois,
had certified David as extraditable under the French-
American Extradition Treaty on charges of willful homi-
cide and attempted willful homicide. Subsequently, Judge
Foreman denied David’s habeas petition. In affirming the
the district court’s denial of the writ of habeas corpus,
the Seventh Circuit found, inter alia, that Judge Foreman
had not violated 28 U.S.C. §455(a) by considering the
habeas petition. The Seventh Circuit stated that a judge is
not required to recuse himself from hearing a habeas pe-
tition which attacks an extradition hearing over which he
presided. The Seventh Circuit found support for its de-
cision in the procedures employed in actions brought
under 28 U.S.C. § 2255* and in cases where a district judge
is reversed, or has an order vacated, and the case is re-
manded to the judge for further proceedings. Id. at 416.

Second, while this case involves a petition brought
pursuant to 28 U.S.C. § 2241 and the Rules Governing
§ 2255 Proceedings for United States District Court do
not govern, Rule 4(a) of the § 2255 Rules and judicial
precedent in cases involving § 2255 petitions for habeas
corpus provide persuasive evidence that there is no im-
propriety in this Court’s accepting jurisdiction in this
case. Rule 4(a) provides:

Reference to judge; dismissal or order to answer.

The original motion shall be presented promptly to
the judge of the district court who presided at the
movant’s trial and sentenced him, or, if the judge
who imposed sentence was not the trial judge, then
it shall go to the judge who was in charge of that
part of the proceedings being attacked by the movant.
If the appropriate judge is unavailable to consider the

3. See infra at 5-6 [A28-A29].

A29

motion, it shall be presented to another judge of the
district in accordance with the procedure of the court
for the assignment of its business.

There are numerous cases where a trial judge in a criminal
matter has decided a § 2255 proceeding in accordance with
Rule 4 and has had his refusal to recuse himself upheld.
Accord, e.g., Burris v. United States, 430 F.2d 399 (7th
Cir. 1970), cert. denied, 401 U.S. 921 (1970); Lucero v.
United States, 425 F.2d 173 (9th Cir. 1970); Dukes v.
United States, 407 F.2d 863 (9th Cir. 1969); Briscoe v.
United States, 129 U.S. App. D.C. 146, 391 F.2d 984 (1968) ;
Mirra v. United States, 379 F.2d 782 (2nd Cir. 1967), cert.
denied, 389 U.S. 1022; United States v. Smith, 337 F.2d 49
(4th Cir. 1964), cert. denied, 381 U.S. 916, Simmons v.
United States, 302 F.2d 71 (3d Cir. 1962); Martin v. United
States, 273 F.2d 775, 777 (10th Cir. 1960), cert. denied, 365
U.S. 853 (1961); Carvell v. United States, 173 F.2d 348
(4th Cir. 1949); see also Machibroda v. United States, 368
U.S. 487 (1962). But see Halliday v. United States, 380
F.2d 270 (1st Cir. 1967). These courts have reasoned that
the trial judge’s familiarity with the facts and circum-
stances surrounding the original trial makes it desirable
for him to deal with the § 2255 petitions. Burris, 430 F.2d
at 402.

Section 2255 was inserted in the judicial code to avoid
the unseemly practice of having attacks upon the regu-
larity of trials made before a coordinate judge. Carvell,
173 F.2d at 348; Smith, 337 F.2d at 52 (quoting Parker,
“Limiting the Abuse of Habeas Corpus”, 8 F.R.D. 171,
172-73 (1949)). Section 2255 was designed to eliminate
the intolerable situation in which another district judge
would consider evidence outside the original trial record
and be forced to weigh the testimony of the original trial

A30

judge against the word of a convicted felon.* United States
v, Edwards, 152 F. Supp. 179, 182 (D.D.C. 1957).

Such factors are equally applicable in § 2241 habeas
corpus proceedings initiated to attack a certificate of ex-
traditability. This Court is familiar with the facts and
circumstances surrounding the consideration of Israel’s
extradition request and related judicial proceedings. The
likelihood of being misled by false allegations as to what
occurred is slight. Furthermore, if this Court determines
the merit of Demjanjuk’s habeas petition, this District will
avoid the unseemly spectacle of one district judge weigh-
ing the determination of a fellow district court judge
against legal arguments and factual allegations made by
an alleged felon.

Third, the Local Civil Rules for the Northern District
of Ohio provide that cases “related” to cases already as-
signed to a judge should be assigned to that judge. Local
Civil Rule 7.09. Judge Thomas Lambros determined that
Demjanjuk’s habeas petition is related to Case No, 83-
Misc. 349 (the extradition proceeding) and thus, that Local
Rule 7.09(3) “mandates the assignment of this action to
the judge who heard the original case.” Order of April
25, 1985. Pursuant to the Local Rules of this District, the
habeas petition is properly before this Court.

It is appropriate and reasonable for this Court to
decide the habeas petition, in part because expeditious
action is possible because of the Court’s prior experience
in this matter. See Matter of Demjanjuk, 584 F. Supp.
1321 (N.D. Ohio 1984) (motion for recusal in extradition

4. Prior to the adoption of § 2255, since evidence outside
of the record was heard at the habeas corpus petition hearing, the
trial judge at times became a witness, by deposition or otherwise,
at that hearing.

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A31

proceedings denied; “with nothing more, this Court’s rul-
ings or action in previous related cases will not “support
a motion for recusal.”). It is in the interests of justice
and friendly foreign relations to complete judicial ex-
amination of this extradition matter seasonably. With
the filing of this Order, the matter will now be ripe for
review by the Sixth Circuit Court of Appeals. 28 U.S.C.
§ 2253.

III. WRITS OF HABEAS CORPUS IN
EXTRADITION CASES

The decision of a judge or magistrate in an extradition
case is not itself appealable. Collins v. Miller, 252 U.S. 364
(1920); Shapiro v. Ferrandina, 478 F.2d 804, 901 (2d Cir.
1973); Jimenez v. Aristeguieta, 290 F.2d 105 (5th Cir.
1961). Rather, the alleged felon may only attack the
extraditability decision collaterally, through a writ of
habeas corpus. Fernandez v. Phillips, 268 U.S. 310 (1924);
Shapiro, 478 F.2d at 901.

An extradition proceeding is in the nature of a pre-
liminary hearing, Merino v. United States Marshal, 326
F.2d 5, 12 (C.D. Cal. 1963); the government need only
establish that competent and adequate evidence shows
that the accused has committed the offenses charged pur-
suant to Treaty, 18 U.S.C. § 3184. It is not the purpose
of an extradition hearing to determine the accused’s guilt.
Collins v. Loisel, 259 U.S. 309, 316 (1922). Rather, after
the alleged felon has a hearing, where he is given the op-
portunity to establish why he is nonextraditable in the
requested country, he still can have his day in court,
when he can prove his innocence in a trial in the courts
of the requesting country. Habeas corpus proceedings can-
not take the place of a direct appeal, Fernandez, 478 F.2d

A32

at 312, and are not a means for rehearing what the § 3184
judge has already decided, id.

Thus, the scope of review of an extradition decision
through habeas corpus proceedings is very limited.

Habeas corpus is available only to inquire whether
the magistrate had jurisdiction, whether the offence
charged is within the treaty and, by a somewhat
liberal extension, whether there was any evidence
warranting the finding that there was reasonable
ground to believe the accused guilty.

Fernandez, 268 U.S. at 312; Accord, Charlton v. Kelly,
229 U.S. 447 (1913); Grin v. Shine, 187 U.S. 180 (1902);
Prushinowski v. Samples, 734 F.2d 1016, 1018 (4th Cir.
1984); Shapiro, 478 F.2d at 901; Jiminez v. Aristeguieta,
311 F.2d 547, 555 (Sth Cir. 1962).

IV. NO ORDER TO SHOW CAUSE NECESSARY

Title 18 U.S.C. § 2243 provides that a court entertain-
ing an application for a writ of habeas corpus

shall forthwith award the writ or issue an order di-
recting the respondent to show cause why the writ
should not be granted, unless it appears from the ap-
plication that the applicant or person detained is not
entitled thereto.

Under this provision, a district court has a duty to screen
out a habeas petition which should be dismissed for lack
of merit on its face. Allen v. Perini, 424 F.2d 134, 141
(6th Cir. 1970). Accord, Aubut v. State of Maine, 431
F.2d 688, 689 (1st Cir. 1970) (a habeas petition “should
set out substantive facts that will enable the court to see
a real possibility of constitutional error”.)

es

A33

In the instant case, it appears from the application for
a writ of habeas corpus that John Demjanjuk is not entitled
thereto. When the application is considered in conjunc-
tion with the motions, the files and the records in the ex-
tradition case and the Order of April 15, 1985, it appears
conclusively that Demjanjuk is entitled to no relief. Thus,
there is no need for consideration of a return on the writ.
18 U.S.C. § 2243. In this case, the allegations do not in-
volve factual matters outside the extradition proceedings’
records or beyond the knowledge of this Court. Requir-
ing a return from the Government would not contribute
to the resolution of issues or the achievement of justice.
Accord Allen, 424 F.2d at 142.

V. HABEAS PETITION DENIED

As will be shown below, the issues raised by Dem-
janjuk’s habeas petition have been considered in depth
and ruled on by this Court during the extradition proceed-
ings. Matter of Demjanjuk, 603 F. Supp. at 1469, 1473-79
(subject matter jurisdiction); Order of April 15, 1985 at
18-27 (Israel’s assertion of jurisdiction in conformity with
United States jurisdictional principles and international
law), 28-35 (“murder” charges within the Treaty), 3-17
(identification) and 35-41 (“competent and adequate evi-
dence” or “probable cause” to believe respondent com-
mitted the acts charged). Petitioner Demjanjuk has pre-
sented no new arguments or information that would cause
this Court to reconsider its findings and legal conclu-
sions.

First, petitioner again asserts that this Court lacked
jurisdiction in the extradition proceedings because the
crimes alleged are “war crimes” and occurred outside of
the territorial jurisdiction of Israel. Habeas Petition at
3-6, 8-9, 9-10. Petitioner attempts to distinguish away

A34

the precedent and legal reasoning used by this Court in
finding that it had jurisdiction to determine whether pe-
titioner is extraditable, Again, petitioner’s arguments are
misplaced. Indeed, the Court is disturbed that petitioner
blatantly misconstrues this Court’s prior opinions. Pe-
titioner states that “the Genocide Convention cannot con-
fer subject matter jurisdiction over the petitioner.”
Habeas Petition at 9. Of course, petitioner is correct.
But the contention is irrelevant—the Court does not rely
on the Convention in determining that it has subject mat-
ter jurisdiction over the extradition proceedings. This
Court has already fully explored all of petitioner’s argu-
ments pertaining to subject matter jurisdiction. Matter
of Demjanjuk, 603 F. Supp. 1468, 1469 (N.D. Ohio 1985);
603 F. Supp. 1473-1479 (N.D. Ohio 1985). Nothing has
been presented to change the earlier decisions.

Second, petitioner argues that the Court changed the
terms of the Treaty by finding him extraditable for “gen-
ocide”. Habeas Petition at iii, 7-8. He states that

By asserting acceptance of Universal jurisdiction over
the Murder of Jews, the extradition court supplied
terms to the United States-Israel Extradition Treaty,
in plain contravention of its governmental role, Chero-
kee Tobacco, supra, Ambiable Isabella, supra. By do-
ing so, it unlawfully supplied a casus omissus in the
treaty.

This Court did not fill a gap in the Treaty and did not
find petitioner extraditable for genocide. Indeed, the
Court specifically found petitioner extraditable only for
multiple charges of “murder”, crimes for which petitioner
is charged under the Israeli statute. Order of April 15,
1985 at 29-35. The Court found that Demjanjuk is charged
with murder, pursuant to sections 1(b) and 2(f) of the
Israeli statute, that these charges are recognized as crimes

A35

under Article II of the Treaty, id. at 30 and that, pursuant
to Article III, petitioner is legally extraditable to Israel.
Id. at 32. Petitioner’s argument fails.

Third, petitioner contends that “no evidence was pre-
sented to the extradition court that petitioner was Ivan
Grezny”. A habeas court cannot find for the petitioner
because of lack of probable cause if any evidence as to
probable cause exists. The issue of identifying the ac-
cused felon is not even properly before a habeas court.
Supra at 7. In light of the numerous, detailed eyewitness
accounts which identify John Demjanjuk as a Treblinka
guard and set forth with great particularity descriptions of
multiple murders he is alleged to have committed, Order
of April 15, 1985, at 4-17, 35-41, petitioner’s claim that
““petitioner’s connection with the identity or the genocidal
crimes of Ivan Grozny was. . . never demonstrated by even
a scintilla of evidence”, Habeas Petition at 9, is frivolous
and offensive.

Lastly, petitioner merely asserts, without any substan-
tiation, that the document on which basis petitioner is
sought does not charge him, as required by 18 U.S.C.
3184, id. at iii, and claims that the documents contained
within the Israeli Extradition Request are not properly
certified, id. at 2. The finding that petitioner was prop-
erly “charged” by Israeli authorities with extraditable of-
fenses within the meaning of the treaty is not reviewable
on habeas corpus. Matter of Assarsson, 687 F.2d 1157, 1160
(8th Cir. 1982); Matter of Assarsson, 635 F.2d 1237, 1240-
42 (7th Cir. 1980). Were this habeas court to look at
the merits of petitioner’s argument, however, the Israeli
Extradition Request does contain both a Request to Issue
Warrant of Arrest, presented to the Magistrate Court in
Jerusalem (Octobe ‘°, 1983) and a Warrant of Arrest,
issued by Judge A... Simcha of the Magistrate Court

A36

(October 18, 1983) which set forth the charges against
Demjanjuk. Pursuant to 18 U.S.C. § 3184 and the Treaty,
this is sufficient. The Treaty does not include as a prereq-
uisite to extradition the filing of formal charges and an
extradition court need not find that an accused felon
is charged in the same manner as would be required by
United States criminal law nor need it review compliance
with foreign criminal procedure. Accord Assarsson, 635
F.2d at 1242, 1244; see also Grin, 187 U.S. at 190-94.

Petitioner presents no argument or evidence to sub-
stantiate his claim that the certification of documents is
improper, nor did he do so at the March 12, 1985 Extradition
Hearing. See Transcript of March 12, 1985 Hearing at 111-
25, 126-29, 164-166. Furthermore, questions of certification
and authentication are not properly before a habeas court.
Were this Court to examine the question again, however, it
would still find the documents properly certified and au-
thenticated. Order of April 15, 1985 at 4.

CONCLUSION

Petitioner has in no way met his burden of showing
that he is in custody in violation of the “Constitu-
tion or laws or treaties of the United States.” i8 U.S.C.
§ 2241(c)(3). Accord Allen v. Perini, 424 F.2d 134, 138

(6th Cir. 1970).

The application for writ of habeas corpus is hereby
denied.

The effect of certification of extraditability is stayed

until June 4, 1985 at 10:00 a.m. D.S.T. to afford the parties
the opportunity to apply for whatever relief they deem

appropriate.
IT IS SO ORDERED.

/s/ Frank J. BATTISTI
Chief Judge

A37

JUDGMENT ENTRY OF THE UNITED STATES
DISTRICT COURT

(Filed May 17, 1985)

No. C85-i1226

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

JOHN DEMJANJUK,
Petitioner,
vs.

JOSEPH PETROVSKY, Warden, et al.,
Respondents.

JUDGMENT ENTRY
BatTistI, C.J.

In accordance with the Memorandum Opinion filed on
May 17, 1985,

IT IS HEREBY ORDERED, ADJUDGED AND DE-
CREED that petitioner’s application for a writ of habeas
corpus is denied.

IT IS FURTHER ORDERED that the effect of certifica-
tion of extraditability is stayed until June 4, 1985 at
10:00 a.m. D.S.T. to afford the parties the opportunity to
apply for whatever relief they deem appropriate.

/s/ Frank J. BAtrTist1
Chief Judge

A38

MEMORANDUM OPINION AND ORDER OF THE
UNITED STATES DISTRICT COURT

(Filed April 15, 1985)

Misc. No. 83-349

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

IN THE MATTER OF THE
EXTRADITION OF

JOHN DEMJANJUK

aka JOHN IVAN DEMJANJUK,
aka JOHN IVAN DEMYANYUK.

MEMORANDUM OPINION AND ORDER
Battisti, C.J,

On October 31, 1983, the Government of the State
of Israel requested the extradition of John Demjanjuk
[hereinafter referred to as “respondent” or “the respon-
dent”] from the United States of America pursuant to an
Israeli arrest warrant issued on October 18, 1983. The
warrant charges Demjanjuk with “the crimes of mur-
dering Jews, [which are] offenses under sections 1 to 4
of the Nazi and Nazi Collaborators (Punishment) Law” of
the State of Israel. State of Israel’s Request for the Ex-
tradition of John Demjanjuk at 11-12.

The Government of the United States pursuant to its
obligation under the Convention on Extradition between
the Government of the United States of America and the

i isi

A39

Government of the State of Israel, T.I.A.S. 5476, 14 U.S.T.
1717 (signed December 10, 1962) (entered into force De-
cember 5, 1963) [hereinafter “the Treaty”], filed on No-
vember 18, 1983 a complaint [hereinafter the “Govern-
ment’s Complaint”] seeking the extradition of the respon-
dent to Israel. In its Complaint, the Government states
that respondent is charged with “the crimes of murder and
malicious wounding; inflicting grievous bodily harm” which
are among the enumerated offenses in Article II of the
Treaty, which is still in full force and effect. Govern-
ment’s Complaint at 1-2.

This Court must determine whether respondent can
be extradited to the State of Israel pursuant to 18 U.S.C.
§ 3184.?

a
PRIOR HISTORY

The respondent, a native of the Ukraine of the Union
of Soviet Socialist Republics [hereinafter referred to as
“U.S.S.R.”], entered the United States on February 9,
1952; he was granted lawful permanent residence under
the Displaced Persons Act of 1948, Pub. L. No. 80-774, ch.
647, 62 Stat. 1009, as amended. On November 14, 1958,
he was naturalized as a United States citizen by the United
States District Court in Cleveland, Ohio. At his naturali-
zation, he changed his first name from Ivan to John. He
subsequently took up residence in Seven Hills, Ohio.

On June 23, 1981, this Court found that respondent
had made material misrepresentations in his visa applica-

1. Throughout this opinion, the Court will use the words
“extraditability” and “extradition.” It will be clear from the
context of the passage whether the reference is to the Court’s
legal determination under Treaty and statute (extraditability)
or the Executive’s discretionary decision (the actual extradition).

a

A40

tion by failing to disclose his service for the German SS
at the Trawniki and Treblinka prison camps in 1942-43.
It was ordered that respondent’s United States citizenship
be revoked and his certificate of naturalization cancelled.
United States v. Demjanjuk, 518 F.Supp. 1362 (N. D. Ohio,
1981), aff'd, 680 F.2d 32 (6th Cir.), cert. denied, 459 U.S.
1036 (1982).

On December 6, 1982, the Immigration and Naturaliza-
tion Service began deportation proceedings against re-
spondent. On May 23, 1984, Immigration Judge Adolph
F. Angellili found respondent deportable and designated
the U.S.S.R. as the country of deportation. However, the
immigration judge also granted the respondent the option
of voluntary departure from the United States. On Feb-
ruary 14, 1985, the Board of Immigration Appeals dismissed
respondent’s appeal of the deportation order; the Board
affirmed the finding of respondent’s deportability and
reversed the grant of voluntary departure. In re John
Demjanjuk, I & N Dec., File A8-237-417 (Cleveland) (B.LA.
February 14, 1985) [hereinafter “B.I.A. Decision”].

On July 17, 1984, this Court ruled that, despite respon-
dent’s appeal of his deportation, the extradition and de-
portation proceedings are independent and, as a result,
respondent’s extradition hearing could proceed. The Court
also stated that the United States Government was under
no obligation to elect deportation or extradition as the
exclusive means of proceeding against respondent.

Il.

On March 12, 1985, an extradition hearing for respon-
dent was held. Oral argument was heard and documen-
tary evidence including photographs, affidavits, and prior
recorded testimony was presented. No witnesses were
calied to testify that day in open court.

A4l1

The issues or conditions necessary for a finding of ex-
traditabliity have been previously identified. See Order
of March 5, 1985 at 2. The Court has already determined
that jurisdiction is present and that the United States-
Israel extradition treaty remains in full force and effect.
Order of December 6, 1984; Order of March 8, 1985. Three
issues were considered at the March 12, 1985 extradition
hearing. They are:

1. Whether the respondent is the party named in
the complaint [issue of identification];

2. Whether the crimes for which respondent’s ex-
tradition is sought are offenses “within the treaty” [issues
of treaty interpretation]; and

3. Whether there is “competent and adequate evi-
dence” or “probable cause” to believe respondent com-
mitted the acts with which he is charged [issue of probable
cause}.

Each of these issues will be examined and resolved be-
low.

Il.
IDENTIFICATION

The Court must determine whether respondent John
Demjanjuk is the individual named in the complaint.
Normally, this inquiry would be simplified by a facial
comparison of the respondent’s name and that appearing
in the complaint. However, in the instant case, respon-
dent alleges that he is not the man whom Israel seeks:
in other words, he claims that the person sought and
the respondent are two different people.

For the following reasons, the Court finds that there
is probable cause to believe respondent is the individual

A42

who is charged with the crimes alleged by the State of
Israel.

The Government submitted four exhibits. They are:

a set of documents, filed November 18, 1983, entitled
“State of Israel/Ministry of Justice/Request for the
Extradition of John Demjanjuk” [previously cited as
‘Israeli Extradition Request’’] [Government Exhibit

1);

a set of documents, filed January 30, 1984, entitled
“State of Israel/Supplement to the Request for the
Extradition of John Demjanjuk” [Government Ex-
hibit 2];

a set of documents, filed March 2, 1984, entitled “State
of Israel/Additional Supplement to the Request for the
Extradition of John Demjanjuk” [Government Ex-
hibit 3];

a document filed November 18, 1983, entitled ‘“Declara-
tion of Jeffrey H. Smith [Assistant Legal Adviser,
United States Departrnent of State]” [Government
Exhibit 4].

Government Exhibits 1-3 are all certified as “authenti-
cated documentary evidence” by James F. Hughes III,
Consul General of the United States of America at Tel
Aviv, Israel. Counsel General Hughes certified and placed
‘the-seal of his office on Government Exhibit 1 on Novem-
ber 3, 1983. Government Exhibits 2 and 3 were similarly
certified by Hughes on January 12, 1984 and February 9,
1984 respectively. Government Exhitit 4 is certified with
the seal of United States Department of State by Secre-
tary of State George Schultz through Acting Authentication
Officer Joan C. Hampton; it was sealed November 17, 1983.

A43

Respondent has not questioned the certification and
authenticity of the evidence against him submitted by the
Government in this extradition matter. At the March 12,
1985 extradition hearing, the Court identified the proper
standard for the admission of evidence in an extradition
proceeding. Transcript of March 12, 1985 Hearing, at 111-
112, [hereinafter “March Tr.”] Documentary evidence
which has been authenticated in the statutory manner and
then certified by an appropriate United States diplomatic or
consular official must be admitted in an extradition pro-
ceeding. 18 U.S.C. § 3190. Since the admission of properly
certified evidence is obligatory on the extradition court
under 18 U.S.C. § 3190, the Court instructed the respon-
dent that evidentiary challenges “may only question
whether the certification or authentication complies with
the statute.” March Tr. at 112. The Court repeatedly
asked counsel for respondent to state for the record his
specific objections to the evidence. March Tr. at 113, 118,
120, 121, 123, 124, 125, 127, 129, 134-35, 164. Counsel for
respondent repeatedly “reserved his objections,” see March
Tr. at 114, 120, 134-35. However, when the Court specifi-
cally asked counsel to put on the record any remaining ob-
jections he had to the evidence, respondent’s counsel stated
he “ha[d] nothing more.” March Tr. at 165. The Court
viewed the documents and respondent’s “objections,” none
of which directly contested the certification or authentica-
tion of the evidence submitted. Citing both i8 U.S.C.
$3190 and Article X of the U.S.-Israel extradition treaty,
the Court found the documents properly certified and au-
thenticated and admitted the four exhibits into evidence.
March Tr. at 165-66. °

The Government need only make out a prima facie
case to establish identification. Argento v. Jacobs, 176
F.Supp. 877, 879 (N.D. Ohio, 1959) (Weick, J.). Nu-

A44

merous cases establish that identification in an extradition
proceeding requires only a threshhold showing of probable
cause. In Raftery ex rel. Fong v. Bligh 55 F.2d 189 (1st
Cir. 1932), the First Circuit reviewed a habeas corpus de-
cision to determine whether the district court had cor-
rectly identified the individual who was to be extradited
for murder. The court found that there was competent
evidence on the record, id. at 195, and that the affidavits
identifying the requested individual were properly certi-
fied and authenticated. Id. at 193.*

In Hooker v. Klein, 573 F.2d 1360, 1367 (9th Cir. 1978),
the Court stated that “[t]he extraditing court also has
the duty to determine whether the party brought before
it is the one named in the complaint.” (emphasis added)
However, rather than merely examining the complaint,
that is, the document filed by the United States Gov-
ernment, the Court must review the arrest warrant or
charging document filed by the requesting government.
Indeed, the Hooker opinion does make such a review:
“The record of the extradition proceeding also reveals
that there was competent legal evidence before the ex-
tradition judge upon which he could find that the person

2. In Raftery, an interstate extradition case, the Court
stated that the extraditing official, in that case the Governor of
Massachusetts, did not need to consider whether the person ar-
rested (ie. the person responding to the extradition) is identical
to the person demanded. Id. at 193. The Court stated that the
burden of proving that the person arrested is a fugitive from
justice is upon the state, “there being no presumption that the
person arrested is the person demanded.” Aithough Raftery
was a habeas corpus proceeding, the inference for the instant
case is that the extraditing magistrate in the first instance need
not determine absolutely that the person demanded and the one
arrested are the same. The Government, however, still has
the burden of proving some nexus between the two, namely
probable cause to believe the two. are the same. However, once
the extradition warrant is issued, the Raftery court noted it must
be regarded as “presumptively right,” the burden of overcom-
ing the presumption being on petitioner (relator). Id. at 193.

A45

before him was the one named in the extradition warrant
...” (emphasis added). Id. at 1369. The proposition that
the extradition warrant is the document to focus upon
finds further support in Fernandez v. Phillips, 268 U.S.
311, 313 (1925): “The warrant is said to be bad because
it names Mariano Viamonte, and not Mariano Viamonte
Fernandez, the appellant. He is named both ways in the
proceedings and is identified by testimony. There is
nothing in this objection. . . .” (emphasis added). A sim-
ilar passage appears in Chariton v. Kelly, 229 U.S. 447,
448-49 (1912): “The proceedings for the extradition of
the appellant were begun upon a complaint duly made
by the Italian Vice-Consul, [the submission from the re-
questing government] charging him with the commission
of a murder in Italy. . . . At the hearing, evidence was
produced which satisfied Judge Blair that the appellant
was a fugitive from justice and that he was the person
whose return to Italy was desired... .”

Examining the Government’s Complaint in the instant
case proves nothing. The United States seeks “one John
Demjanjuk, who currently resides at 847 Meadow Lane,
Seven Hills, Ohio.” There is no question that respondent
lives at this address in Seven Hills. However, the Israeli
Extradition Request states the following:

A46

A - Description of Person Whose Extradition is Requested
2. Demjanjuk’s personal particulars and description are

as follows:
Family name:
First Name:
Also known as:

Father’s Name:
Date of Birth:
Place of Birth:

Last known residence:

Demjanjuk

John

Iwan Demjanjuk

Ivan Demjanjuk

“Tyan Grozny” (“Ivan the
Terrible’)

Mikola or Nikola

Aprii 3, 1920

Dub Nacharenzi, Ukraine,
a republic of the U.S.S.R.

847 Meadow Lane,

Seven Hills, Ohio

Israeli Extradition Request at 1.

Respondent contends that he is not the Ivan Grozny sought
by Israel. Transcript, Hearing of Dec. 17, 1984, at 55

{hereinafter “December Tr.”].°

3. The Government of Israel states the following in its

request under “Identification of Demjanjuk”’:

A. A Photograph of Demjanjuk is attached hereto and
marked Exhibit “A”. This photograph has been identified
by witnesses, whose statements are included in this Request
for Extradition, as a picture of the person known to them
as “Ivan” or “Iwan” or “Ivan the Terrible” from the
Treblinka death camp (See Exhibits C, D, E, and F).

B. For further identification of Demjanjuk as the person
requested by this Request for Extradition, reference is
hereby made:

1. To his identification from pictures by witnesses who
testified at the trial of the case of United States of America
vs. John Demjanjuk, File No. C77-923, 518 F. Supp. 1362
(1981) (an action to cancel Demjanjuk’s U.S. citizenship) ;
2. To the findings by the Court in that case concerning the
eyewitness identification of Demjanjuk as the ‘Ivan’ from
Treblinka.

See Memorandum of Decision and Order of the Court which
is attached hereto and marked Exhibit B.

Israeli Extradition Request at 1-2.

——

A47

In the hearing on this matter held December 17, 1984,
the United States Government was asked “What evidence
is relied upon by the State of Israel to establish that the
requested individual is indeed, the respondent?” Decem-
ber Tr. at 50. Counsel for the Government responded:

[T]here is no question in the Government’s mind
that the identification information that is separate and
apart from the denaturalization findings of fact which
are incorporated are abundantly clear and meet the
standards [of identification] in and of themselves... .

The Government submits that the witness affi-
davits over and apart from those that are incorporated
via the denaturalization case are sufficient.”

December Tr. at 54-55.

Although the Government did not directly state on
what evidence it was relying, see December Tr. at 54,
and did state that Israel had incorporated the denatural-
ization findings as part of its Extradition Request, id., the
thrust of its statement is that the eyewitness identifications
are independent from the denaturalization identification
and sufficient in themselves to establish that respondent
is the individual sought in this extradition request.

It is well-established that sworn statements of wit-
nesses and photographs may be used to identify individ-
uals sought for extradition. Argento v. Horn, 241 F.2d
258, 263 (6th Cir. 1957) (Stewart, J.); In re Edmondson,
352 F. Supp. 22 (D. Minn. 1972) (Counsel General of U.S.
in Ottawa submits certified affidavit and “certified photo-
graphs of the two respondents which this court personally
compared with the individuals as they appeared in court
at the extradition hearing”); Ex part Romano, 40 F.2d
750 (S.D. Calif. 1930) (a photograph identified as that

A48

of the murderer by two witnesses residing at Bivona,
where the crime was committed, was attached to the
depositions and introduced in evidynce at the hearing:
evidence was sufficient to esta.'':!. identity); Bagley v.
Starwich, 8 F.2d 42, 42 (9th Cir. 1925) (“a photograph
of one of the robbers, authenticated by two witnesses, is
attached as an exhibit to these depositions, and it appears
that this is a photograph of appellant. This was a proper
method in which to prove the identity of appellant with
the robber.”).

Having determined that the Government need only
make out a prima facie case and that affidavits may be
used to identify an individual sought for extradition, the
Court will consider the affidavits submitted by the Gov-
ernment to determine if they meet the probable cause
standard for identification.

The first eyewitness affidavit, marked as “Exhibit C”
in the Israeli Extradition Request (Government Exhibit
1), is a “Statement under Oath” made by Elijahu Rosen-
berg, delivered before the Magistrate Court of Tel Aviv.
The statement, which is translated from the Hebrew, is
certified by Judge David Steinmetz of the Magistrate
Court of Tel Aviv as having been made by Rosenberg
on October 24, 1983. In the statement, Rosenberg con-
firms that he testified on February 18 and 19, 1981 in
respondent’s denaturalization trial and that the documents
attached to the Israel extradition request are all accurate
transcriptions of his testimony. In item #5 of the state-
ment, Rosenberg states: “There has been shown to me
a photograph marked with the letter ‘A.’. This is a pic-
ture of the man known to me as Iwan from Treblinka.
I identified this photograph at the above trial as set out
on page 520 of the attached transcript.”

A49

The second affidavit, identified as “Exhibit D” in
Government Exhibit 1, is a similar statement made by
Pinhas Epstein, who testified in the denaturalization trial
on February 20, 1981. On October 24, 1983, he stated
under oath before Judge Steinmetz that the phdtograph
marked with the letter ‘A’ was “the man known to me
as Iwan from Treblinka.” Sonia Lewkowicz in the third
affidavit, which is identified as “Exhibit E” in Govern-
ment Exhibit 1, also identified the photograph with the
letter ‘A’ as a photograph of the “man known to me as
Iwan from Treblinka.” Her statement was made before
Judge Steinmetz on October 24, 1983. Lewkowicz testi-
fied at the denaturalization trial on February 19, 1981.

Government Exhibit 1 also vontains, as “Exhibit F”,
the “Statement under Oath” of Joseph Czarny, made be-
fore Judge Steinmetz on October 24, 1983. Czarny states
that on September 21, 1976, he “made a statement in Ger-
man to a police officer at the National Police Headquarters
in Tel Aviv concerning Ivan Demjanjuk, known to me by
the nickname “Ivan the Terrible” from the Treblinka
camp during the years 1942-43.” He states in item 3 that
“There has been shown to me a photograph marked with
the letter ‘A’ and I identify that as a picture of the man
known to me as ‘Ivan’ from Treblinka.”

In his statement to the police on September 21 1976,
Czarny states that upon seeing three brown cardboard
sheets with seventeen photos on them, he pointed to
photo No. 16 “at first sight”, saying:

Why, this is Ivan Grozny, it is Ivan, the notorious
Ivan. It is thirty-three years since then, but I recog-
nise him at first sight with complete certainty. I be-
lieve I would recognise him even by night. He was
very tall, of sturdy build, his face was not so full

A50

and bloated then as it is in this picture. Rut it is
the same facial structure, the same nose, .ne same
eyes and forehead as he had. A mistake is out of the
question.”

Government Exhibit 1, “Exhibit F’”, statement at 1-2 (p.
2 of the German original).

The photograph marked letter ‘A’ which witnesses
Rosenberg, Epstein, Lewkowicz, and (zarny all identified
as the respondent is the photograph which appeared on
John Demjanjuk’s 1952 visa application to the United
States. There is no question that this is indeed a picture
of respondent or that it is authentic.

Government Exhibit 1 also includes as Exhibits “G”
and “H” transcripts of the testimony of witnesses Chiel
Rajchman and Georg Rajgrodzki in respondent’s denaturali-
zation trial. The Court notes that the witnesses did
identify respondent as Ivan from Treblinka during the
denaturalization trial.

Government Exhibit 2 consists of three affidavits. The
first affidavit is that of Dr. Yitzhak Arad.* Based on
his research, including the books and articles he has
authored, Dr. Arad states “My research on the subject
of the Treblinka death camp has also shown that during
the period 1942-43, the gas chambers at Treblinka were
operated by two Ukranians known to the prisoners and
inmates of the camp as ‘Ivan the Terrible’ and his assistant,
Nikolai.” Dr. Arad’s statement is certified as being made
on December 22, 1983.

4. Dr. Arad is a historian who received a doctorate in the
History of the Holocaust from the University of Tel Aviv. Dr.
Arad, at the time he gave his statement, was Chairman of the
Directorate of the Yad Vashem Martyrs and Heroes Remembrance
Authority in Jerusalem, which is a museum and archives cover-
ing the holocaust period from 1933 to 1945. By 1984, Dr. Arad
had been Chairman of the Directorate for 12 years.

A51

The second affidavit in Government Exhibit 2 is an
affidavit by Elijahu Rosenberg. It is certified as being
made on January 5, 1984. In the affidavit, Rosenberg
states that at the denaturalization trial, he testified that
he:

had the opportunity to observe the persons who
operated the motors which sent the poisonous gas fumes
into the gas chambers, and that I saw that the persons
who operated these motors were tvo Ukranians by
the names of Iwan and Nikolai.

I hereby confirm that at the said trial, I identified
two photographs as being pictures of the man known
to me as “Ivan” or “Ivan the Terrible” from the Tre-
blinka death camp.

The third affidavit is that of Marvin E. Hankin, who
is Senior Assistant to the Staff Attorney for the Israel
Ministry of Justice. The affidavit is certified as being
made on January 6, 1984. On page 3 of that affidavit,
Hankin states:

I hereby certify that the photograph attached hereto
and marked ‘A’ is the identical photograph which was
previously identified by the witnesses Elijahu Rosen-
berg, Pinhas Epstein, Sonia Lewkowicz and Joseph
Czarny and which was attached as Exhibit A to Israel’s
Request of October 31, 1983 for the Extradition of
John Damjanjuk.

Government Exhibit 3 contains two statements made
under oath. Exhibit “ER” is a “Statement [made] under
Oath” by Elijahu Rosenberg on February 5, 1984. In it
Rosenberg states that:

Today, the 5th of February 1984, Mr. Martin Kolar,
of the Israel Police Unit for the Investigation of Nazi

A52

Crimes, produced to me the picture attached hereto and
marked ‘ER/1’. I hereby confirm that this is a pic-
ture of John (Ivan) Demjanjuk whom the State of
Israel wishes to extradite and bring to trial for the
deeds he committed in the years 1942 and 1943 at the
Treblinka death camp. ... In my evidence [testi-
mony] in the [denaturalization] case, I referred to
Demjanjuk by the name ‘Iwan’ because this is how
he was known to me when I was imprisoned in the
Treblinka camp.

Exhibit PE is a “statement [made] under Oath” by
Pinhas Epstein on February 5, 1984. Epstein states:

On the 5th of February 1984 Mr. Martin Kolar, of
the Israel Police Unit for the investigation of Nazi
Crimes, produced to me the picture attached hereto
and marked “PE/1”. I hereby confirm that this is a
picture of John (Ivan) Demjanjuk whom the State
of Israel wishes to extradite and bring to trial for
the deeds he committed in the years 1942 and 1943
at the Treblinka death camp. ... In my evidence
[testimony] in the said case, I referred to Demjunjak
by the name “Iwan” because this is how he was known
to me when I was imprisoned in the Treblinka camp.

The photographs marked ‘ER/1’ and ‘PE/1’ are iden-
tical to one another. They are circa. 1982 photographs of
John Demjanjuk.

The Court finds that there is sufficient evidence based
on the eyewitness affidavits submitted by the Government
to conclude that there is probable cause to believe respon-
dent is the individual known as Ivan Demjanjuk sought
by Israel and named in the arrest warrant. This Court
need not identify a particular number or quantity of
evidence to reach its determination. It is enough to say

ORT laird WRIA BAU Laan eee WMG all ie keine ate Rete we nine one

INSEE Eat

OR. Le

A53

that there is sufficient evidence on the record, based on
the Rosenberg, Epstein, Lewkowicz, and Czarny affidavits,
which is both authentic and relevant, to find that the
Government has made a prima facie case that respondent
John Demjanjuk is the man whose extradition is sought.
As previously stated it is not an extradition court’s func-
tion to determine with absolute certainty whether the
individual sought actually committed the offenses.

The case of In re Assarsson, 635 F.2d 1237 (7th Cir.
1980), is instructive regarding identification. In that case,
a Swedish citizen brought a habeas corpus action challeng-
ing his extradition to Sweden on charges of arson, fraud
and attempted fraud. Assarsson did not contest that he
was the person whose arrest was sought. Id. at 1246. The
court specifically distinguished his case from those cases
“where the identity of the person seized in the requested
state was at issue.” See, e.g., Raftery ex rel. Fong v. Bligh,
55 F.2d 189 (ist Cir. 1932), supra, at 6. However, in
Assarsson, as in the instant case, the authentication of the
documents was not an issue. See supra at 4-5. Assarsson’s
objection was to whether the evidence (since it lacked a
photograph) was sufficient to identify him. The court
stated:

(i]t may be that on the full trial [the requested in-
dividual] may be able to submit substantial proof
that another rather than he was the perpetrator of the
fraud, but that is a matter for exploration during the
trial in [the requesting country] and not for extensive
evidentiary inquiry during the extradition hearing.

Assarsson, at 1245 (quoting from Peroff v. Hylton, 542
F.2d 1247, 1249 (4th Cir. 1976), cert. denied, 429 U.S. 1062
(1977) (extradition request from Sweden)). Hence, as

'
A54

Assarsson indicates, should respondent be tried in Israel,
he can present exculpatory evidence that he was not the
person who committed the crimes with which he is charged.

Respondent has attempted to call into question this
identification by questioning the integrity of the earlier
denaturalization proceeding against him. He specifically
alleges fraud and misconduct on the part of the Govern-
ment and this Court, claiming that the Trawniki ID.
bearing respondent’s picture was “intentionally altered”
by the Soviet Union and is “fraudulent.” Respondent’s
Reply to Government’s Pre-Hearing Memorandum (May
24, 1984) at 27-29. The Court will not, once again, recon-
sider these charges here, having done so numerous times
before. See Order of February 12, 1985, United States v.
Demjanjuk, Case No. 77-923 (second motion to vacate);
Matter of Demjanjuk, 584 F. Supp. 1321 (N.D. Ohio 1984)
(recusal motion); United States v. Demjanjuk, 103 F.R.D.
1 (N.D. Ohio 1983) (first motion to vacate). Respon-
dent’s charges have been found to be baseless. The /
denaturalization proceeding has been reviewed and af-
firmed on appeal. See United States v. Demjanjuk, 680
F.2d 32 (6th Cir.), cert. denied, 459 U.S. 1056 (1982); see
also B.I.A. Decision, at 7-10.

Although respondent has continued to dispute the use
of the Trawniki card despite numerous decisions refuting
his position, there is sufficient evidence to identify re-
spondent for extradition purposes without reference to
the Trawniki card at all. The independence of the evi-
dence was noted by the Board of Immigration Appeals.

Moreover, contrary to respondent’s allegations, the
Trawniki card was not the sole evidence of the re-
spondent’s activities at Trawniki and Treblinka. The

a

A55

respondent’s arguments conveniently ignore the fact
that five surviving prisoners and a German guard
identified the respondent’s photograph as that of the
Ivan who operated the gas chambers at Treblinka.

B.I.A. Decision, at 9-10.

Those eyewitness identifications remain sufficient to
establish respondent’s identity. The identifications were
based on viewing a photograph marked “A”. This photo-
graph is the 1952 visa application photograph of John
Demjanjuk. It is not the picture which appears on the
Trawniki I.D. card. The subsequent identifications made
by witnesses Rosenberg and Epstein in the supplementary
motions were based on photographs marked “ER/1” and
“PE/1.” These are identical photographs. The photo-
graph is a picture, circa 1982, of John Demjanjuk, stand-
ing in front of a height chart. Hence, the eyewitness
identifications were based on photographs, the authentic-
ity of which is not questioned. Respondent’s efforts to call
into question these identifications made on the basis of
authenticated photographs simply because the identifica-
tions were made in the denaturalization proceedings can-
not be countenanced. Not only have these denaturaliza-
tion findings and proceedings been found to be proper but
the fact that the identifications were made in open court
and under oath serves to insure that the identifications
were conducted properly.

Respondent’s counsel argues that there is “absolutely
no connection” between John Demjanjuk and Ivan Grozny,
the guard at the Trawniki and Treblinka camps. Tran-
script of March 12, 1985 Hearing [hereinafter referred
to as “March Tr.’’]. Respondent’s counsel stated at the
March 12th extradition hearing that the Government
should proceed “on the basis of some identification that

A56

shows this is the individual, and if it is, in fact, linked
with 1942 and 1943, then there ought to be some evidence
of probable cause as opposed to a mere allegation that
he has been the man on trial for the last seven years or
so.” (emphasis added). March Tr. at 157, 158. The Court
does not know what type of evidence respondent means
when he says “some evidence.”® Absolute certainty is
not required in the law, whether it be for identification
purposes or in meeting burdens of proof.

This Court finds that not only are the eyewitness
identifications sufficient but there is an obvious and strik-
ing resemblance between the man depicted in the sub-
mitted photographs and the respondent, which when taken
together clearly rise to the level of probable cause.

IV.
TREATY INTERPRETATION

Turning to the second element an extradition court
must consider, this Court will decide whether respondent
has been charged with having committed, within the ju-
risdiction of the State of Israel, any of the crimes pro-
vided for in the Treaty. 18 U.S.C. §3184.

5. The Court is unaware of any evidence other than eye-
witness affidavits and photographs which are available in the
instant case. Surely, fingerprints, blood samples, dental records,
voice recordings, etc. and other types of physical or scientific
evidence are unlikely here, given the destruction of the camps
and the passage of time. It is therefore noteworthy that re-
spondent admits that he had a blood group tatoo inside his left
arm which was later removed. An expert witness testified
that only members of the German SS would be so marked.
Demjanjuk, 518 F. Supp at 1377-78; BIA Decision, at 10. How-
ever, this evidence was adduced at the denaturalization hearing
and has not been submitted as part of the Government’s evidence
in this extradition proceeding. The Court is therefore not relying
on the tatoo in making its identification determination.

Pn al mt nt ey eh,

a ah he nN NE 6 pants “Bad ve

sachanioe

A57

A. Israeli Jurisdiction

Respondent asserts that Israel lacks jurisdiction under
“recognized principles of International Law” to bring him
to trial. Respondent’s Motion to Terminate at 11 (filed
April 2, 1984). If Israel lacks jurisdiction,® the United
States can not extradite respondent to Israel. Israel’s as-
sertion of jurisdiction over respondent, however, is proper
under both Israeli municipal law and international law.
Furthermore, Israeli jurisdiction does not violate United
States jurisdictional principles or practices in any way.

In 1950, Israel enacted the Nazis and Nazi Collabora-
tors (Punishment) Law, 5710-1950. [hereinafter ‘Nazi
Statute”]’ This statute makes crimes against the Jewish
people, crimes against humanity and acts constituting war
crimes which occurred during the Nazi period, inter alia,
punishable under Israeli law.* The statute defines these
crimes as follows:

6. Absent contrary Congressional intent, international law
is part of the law of United States. Accord The Paquete Habana,
175 U.S. 677, 712 (1900); Tag v. Rogers, 267 F.2d 664 (D.C.
Cir. 1959), cert. denied, 362 U.S. 904 (1959).

7. This statute was passed by the Israeli Knesset on the
18th Av, 5710 (1st August, 1950), and published in Sefer Ha-
Chukkim No. 57 of the 26th Av, 5710 (9th August, 1950). p. 281.
The Bill and an Explanatory Note were published in Hatza’ot
Chok No. 36 of the 11th Adar, 5710 (28th February, 1950). p. 119.

8. Section 1(a) of the statute provides:
A person who has committed one of the following offences—

(1) done, during the period of the Nazi regime, in an enemy
country an act constituting a crime against the Jewish people;

(2) done, during the period of the Nazi regime, in an enemy
country, an act constituting a crime against humanity;

(3) done, during the period of the Second World War, in
an enemy country, an act constituting a war crime, is liable
to the death penalty.

Sections 2, 3 and 4 provide, in relevant part:

2. If a person, during the period of the Nazi regime, com-
mitted in an enemy country an act by which, had he com-

(Continued on following page)

A58

1.(b) In this section -

“crime against the Jewish people” means any of the
following acts, committed with intent to destroy the
Jewish people in whole or in part:

1. killing Jews;
2. causing serious bodily or mental harm to Jews;

3. placing Jews in living conditions calculated to
bring about their physical destruction;

4. imposing measures intended to prevent births
among Jews;

Footnote continued—

mitted it in Israel territory, he would have become guilty
of an offence under one of the following sections of the
Criminal Code, and he committed the act against a perse-
cuted person as a persecuted person he shall be guilty of
an offence under this Law and be liable to the same punish-
ment to which he would have been iiable had he committed
the act in Israel territory: ...

(e) section 312 (manslaughter) ;
(f) section 214 (murder); .. .
(j) section 238 (grievous harm) ;

3. (a) A person who, during the period of the Nazi regime,
in an enemy country, was a member of, or held any post
or exercised any function in, an enemy oraginsation is liable
to imprisonment for a term not exceeding seven years... .

4. (a) A person who, during the period of the Nazi regime,
in an enemy country and while exercising some function in
a place of confinement on behalf of an enemy administra-
tion or of the person in charge of that place of confinement,
committed in that place of confinement an act against a
persecuted person by which, had he committed it is Israe]
territory, he would have become guilty of an offence under
one of the following sections of the Criminal Code, shall be
guilty of an offence under this Law and be liable to the
same punishment to which he would have been liable had
he committed the act in Israel territory: .. .

(3) section 241 (wounding and similar acts) ;

(4) section 242 (failure to supply necessaries) ;

(5) section 249 (common assault) ;

(6) section 250 (assault causing actual bodily harm) ;
(7) section 261 (unlawful compuisory labour) ;...

A59

5. forcibly transferring Jewish children to another
national or religious group;

6. destroying or descrating Jewish religious or
cultural assets or values;

7. inciting to hatred of Jews;

“crime against humanity” means any of the following
acts:

murder, extermination, enslavement, starvation or
deportation and other inhumane acts committed
against any civilian population, and persecution on
national, racial, religious or political grounds;

“war crime” means any of the following acts:

murder, ill-treatment or deportation to forced
labour or for any other purpose, of civilian popula-
tion of or in occupied territory; murder or ill-
treatment of prisoners of war or persons on the
seas” killing of hostages; plunder of public or
private property; wanton destruction of cities,
towns or villages; and devastation not justified by
military necessity.

No argument has been advanced that the Israeli stat-
ute was not validly enacted under Israeli law. The Re-
quest to Issue Warrant of Arrest, presented to the Magi-
strate Court in Jerusalem (October 18, 1983) [hereinafter
“Warrant Request-Exhibit J”] and the Warrant of Arrest,
issued by Judge A. M. Simcha of the Magistrate Court
(October 18, 1983) [hereinafter “Arrest Warrant-Exhibit
J” ] both included in the Israeli Extradition Request,® show

9. The “Warrant Request-Exhibit J” and the “Arrest War-
rant-Exhibit J” are two separate documents which are included
in Government Exhibit 1, the Israeli Extradition Request. They
are identified therein as Exhibit J.

A60

that respondent is charged with offenses within the stat-
ute. Israeli courts have recognized their jurisdiction to
bring to trial war criminals for extraterritorial crimes,
pursuant to the Nazi statute. Accord Attorney General of
the Government of Israel v. Adolf Eichmann, 36 LL.R. 5
(Dist. Ct. Jerusalem, 1961) (reprinted, in relevant part,
56 Am. J. Int’l L. 805 (1962); aff’d, 36 LL.R. 277 (1962).
Thus, the assertion of jurisdiction over respondent is cer-
tainly proper under Israeli law.

International law does not generally prohibit the ap-
plication of a state’s laws (so-called “jurisdiction to pre-
scribe”) or the jurisdiction of its courts (“jurisdiction to
enforce”) over non-citizens or acts committed outside of
its territory. The Case of S.S. Lotus (France v. Turkey),
[1927] P.C.I.J. Ser. A, No. 10 at 19. Rather, states have
a “wide measure of discretion which is only limited in
certain cases by prohibitive rules.” Id. In other cases,
every state remains “free to adopt the jurisdictional prin-
ciples which it regards as best and most suitable”. Id.
The exercise of extraterritorial criminal jurisdiction over
non-citizens in certain circumstances does not violate a
state’s international obligations, such as the duty to re-
spect the sovereignty of other states. See id. at 20. It need
not be decided here whether international law permits all
that it does not forbid. Israel’s assertion of jurisdiction
over respondent based on the Nazi statute conforms with
the international law principles of ‘universal jurisdiction.”

International law provides that certain offenses may
be punished by any state because the offenders are “com-
mon enemies of all mankind and all nations have an equal
interest in their apprehension and punishment”. United

Qa. See discussion infra at 29-30 [A71].

re a

A61

States v. Oito, Case No. 000-Mauthausen-5 (DJAWC, July
10, 1947) (citing Wheaton’s International Law (6th Ed.),
Vol. 1 at 269); see also Restatement of the Foreign Rela-
tions Law of the United States, Tentative Draft No. 2
(1981) § 404 [hereinafter ““Restatement”]. Universal juris-
diction over certain offenses is established in international
law through universal condemnation of the acts involved
and genera! interest in cooperating to suppress them, as
reflected in widely-accepted international agreements and
resolutions of international organizations. Restatement
§ 404, Comment (a). Piracy is the paradigm of an offense
“against the common law of nations”. See United States
v. Otto. Other crimes which are universally condemned
include participation in the slave trade and attacks on or
hijacking of aircraft. Restatement § 404. Accord Hague
Convention for the Suppression of Unlawful Seizure of
Aircraft, 22 U.S.T. 1641, T.LA.S. 7192 (1971); Montreal
Convention for the Suppression of Unlawful Acts Against
the Safety of Civil Aviation, 24 U.S.T. 564, T.LA.S. 7570
(1973). The power to try and punish an offense against
the common law of nations, such as the law and customs
of war, stems from the sovereign character of each indepen-
dent state not from the state’s relationship to the perpetra-
tor, victim or act. United States v. Brust at 6, Case No.
000-Mauthausen-7 (DJAWC, Sept. 19, 1947), aff'd, War
Crimes Board of Review, Office of the Judge Advocate
(Nov. 6, 1947).

The principle that the perpetrators of crimes against
humanity and war crimes are subject to universal juris-
diction found acceptance in the aftermath of World War
II. The wartime Allies prosecuted persons accused of
war crimes and crimes against humanity in several

A62

forums."® In a number of instances, they exercised extra-
territorial jurisdiction over the accused. The International
Military Tribuna] at Nuremberg tried major war crim-
inals “whose offences ha[d} no particular geographical lo-
cation”. The Nurnberg Trial, 6 F.R.D. 69, 76 (1946); Agree-
ment by the Government f the United States of America,
the Provisional Gove of the French Republic, the
Government of the U.....a ingdom of Great Britain and
North Ireland and the Government of the Union of Soviet
Socialist Republics for the Prosecution and Punishment of
the Major War Criminals of the European Axis (London
Agreement) arts. 4, 6, 59 Stat. 1544, E.A.S. No. 472 (August
8, 1945). Numerous individual defendants were convicted of
“war crimes” and “crimes against humanity”,"’ many of

10. The Court is aware that a great body of historical and
legal literature exists which is critical of the purpose and conduct
of the war trials of Nazi leaders at Nuremberg and of Japanese
military leaders in the Pacific. Significant differences of opinion
remain as to the propriety of those proceedings. It is a historical
verity that the victors in war have meted out punishment to the
vanquished in the name of justice. The Court does not pass
judgment on this issue or the manner in which some of the
post-war proceedings were conducted, leaving that verdict to
time and its observers, the historians. It is, nonetheless, well-
established that extraterritorial offenses were tried by these
tribunals without objection by members of the international com-
munity.

11. The definition of these crimes, as set forth in Article
6 of the Charter annexed to the London Agreement almost ex-
actly parallels the Nazi statute. The Charter provides in rele-
vant part:

The Tribunal established by the Agreement referred to in
Article 1 hereof for the trial and punishment of the major
war criminals of the European Axis countries shall have
the power to try and punish persons who, acting in the
interests of the European Axis countries, whether as indi-
viduals or as members of the organizations, committed any
of the following crimes.

The following acts, or any of them, are crimes coming
within the jurisdiction of the Tribunal for which there shall
be individual responsibility:

(Continued on following page)

A63

which were committed outside of the territory of the four
Allies. The international community affirmed and en-
dorsed the work of the tribunals and the principles of law
they envoked, through a General Assembly Resolution.
G.A. Res. 95 (A/64,/Add. 1) p. 188 (1946); see also Moeller,
“United States Treatment of Alleged Nazi War Criminals:
International Law, Immigration Law, and the Need for In-
ternational Cooperation” (draft manuscript), to be pub-
lished in 25 Va. J. Int’l L. (summer 1985).

In a number of cases brought before United States
military tribunals, du.endants accused of war crimes ob-
jected to the assertion of jurisdiction because the crimes
were not committed on United States territory or in the
United States territorial zone of occupation in Germany.
These defenses were uniformly rejected. In asserting
jurisdiction, United States military courts discussed the
universality of jurisdiction over war crimes. For example,
in United States v. Waldeck, et al., Case No. 000-50-9
(DJAWC, Nov. 15, 1947), the defendants were physicians,
guards and officials of the Buchenwald concentration camp
in Germany. They were, variously, charged with and

Footnote continued—

(b) War Crimes: namely, violations of the laws or customs
of war. Such violations shall include, but not be limited to,
murder, ill-treatment or deportation to slave labor o: for
any other purpose of civilian population of or in occupied
territory, murder cr ill-treatment of prisoners of war or
persons on the seas, killing of hostages, plunder of public
or private property, wanton destruction of cities, towns or
villages, or devastation not justified by military necessity;

(c) Crimes Against Hurnanity: namely, murder, extermina-
tion, enslavement, deportation, and other inhumane acts
committed against any civilian population, before or during
the war, or persecutions on political, racial or religious
grounds in execution of or in connection with any crime
within the jurisdiction of the Tribunal, whether or not in
violation of the domestic law of the country where perpe-
trated. ...

A64

found guilty of “killings, beatings, tortures, starvation”
and other abuses. In finding jurisdiction over acts in
violation of the law of war committed against the na-
tionals of any country, at any place, prior to the entry
of the United States into the war, the Court stated:

Any violation of the law of nations encroaches
upon and injures the interest of sovereign states.
Whether the power to punish for such crimes will
be exercised in a particular case is a matter resting
within the discretion of a state. However, it is axiom-
atic that a state, adhering to the law of war which
forms a part of the law of nations, is interested in the
preservation and the enforcement thereof. This is
true, irrespective of when or where the crime was
committed, the belligerency status of the punishing
power, or the nationality of the victims. (citations
omitted )

United States v. Waldeck, at 34. Accord United States v.
Brust; United States v. Otto.

Both France and Norway enacted legislation which
provided for the trial of war criminals who committed
extraterritorial offenses against their nationals or their
state interests. See Baxter, “Jurisdiction Over War Crimes
and Crimes Against Humanity: Individual and State Ac-
countability”, Bassiouni and Nanda (eds.) II International
Criminc! Law at 65, 67-68 (1973). No evidence has been
presented or found which indicates that the international
community objected to the Allies’ assertion of jurisdiction
over extraterritorial war crimes and crimes against hu-
manity.

The work of the United Nations and its various orga-
nizations after World War II further shows the interest

scan he ti es

A65

of the international community in the prosecution of war
crimes, including crimes against humanity, which occurred
in execution of or in connection with other war crimes.
At the request of the United Nations General Assembly,
the International Law Commission of the United Nations
formulated “Nuremberg Principles”, Report of the Inter-
national Law Commission covering its Second Session,
5 U.N. GAOR, Supp. 12, pt. 111, U.N. Doc. A/1316 (1950),
which described crimes against peace, war crimes, and
crimes against humanity as “international crime[s].” See
also Appleman, Military Tribunals and International
Crimes 368-72 (1954). In addition, the United Nations
Convention on the Prevention and Punishment of the
Crime of Genocide, 78 UN.T.S. 277 (opened for signature
December 9, 1948) [hereinafter “Genocide Convention” ],
was adopted by the United Nations General Assembly in
1948, G.A. Res. 260(A), U.N. Doc. A/8i0 at 174 (1948)
and has been ratified by 93 nations.’* The Convention
“confirms” that genocide is “a crime under international
law” and defines genocide to include various acts, in-
cluding “killing” and “causing serious bodily or mental

12. The United States has signed the Convention but, to
date, has not ratified it. Despite the activism of the United States
delegation in promoting the Convention (and lobbying, against
the Soviet Union, for the inclusion of political groups as a pro-
tected class from oppression), the Senate entertained arguments
that under the Constitution genocide was purely ‘domestic mat-
ter.” L. Kuper, Genocide 29-30 (1981). In addition, there
was fear among some Senators that the United States would be
charged with genocidal violations for segregationist laws or
policies against blacks in America. Latter-day critics of the
Convention may believe continued opposition to its ratification
is merited given charges that United States involvement in the
Vietnam War rises to genocidal proportions. See R. Falk,
Crimes of War (1971); From Nuremburg to My Lai (ed. J.
Baird 1972). In any event, it would seem that United States
non-ratification of the Genocide Convention has largely been
motivated by fear of domestic political repercussions rather than
any fundamental disagreement with the core meaning or pur-
pose of the Convention.

A66

harm” which were committed “with intent to destroy...
a national, ethnical, racial or religious group”. Conven-
tion, arts. 1, 2. The Contracting Parties undertake “to
prevent and to punish” genocide. Convention, art. 1.

Respondent states that no jurisdiction arises under
the principle of universality. He argues that only Con-
gress, pursuant to the United States Constitution Article
I, section 8, clause 10 (power to define offenses against
the laws of nations), or the President, with the advice and
consent of the Senate, pursuant to Article II, section 2,
clause 2 of the Constitution (treaty-making power) has
the power to “define a universal crime.” Motion to
Terminate at 16-17. Respondent claims that “the Laws
of Nations cannot be broadly applied as a basis for federal
jurisdiction over a case.” Id. at 18. Respondent mis-
characterizes the issue pertaining to universality. This
Court must only determine whether Israel can assert ju-
risdiction over the alleged offenses, not whether Congress
has defined the offenses as universal crimes or whether a
United States court could try respondent for the alleged
crimes under United States law. This Court has juris-
diction to conduct an extradition proceeding, pursuant to
18 U.S.C. § 3184. Order of February 21, 1985; Order of
March 8, 1985.

Respondent cites no authority to show that Israel
would violate international law in the instant case by
asserting jurisdiction over respondent based on the uni-
versality principle. Israel has brought charges of “murder”
against Demjanjuk, asserting jurisdiction based on a stat-
ute which penalizes “war crimes” and “crimes against hu-
manity”, among other acts. The international coramunity
has determined that these offenses are crimes over which
universal jurisdiction exists. Supra at 21-26 [A60-A66].

A67

Moreover, Israel’s assertion of jurisdiction does not im-
pinge or interfere with any other state’s jurisdiction since
no other nation has requested respondent’s extradition.

A colorable argument has been made that Israel has
jurisdiction to try respondent, based on the “protective”
and “passive personality” theories of jurisdiction. The
Court, however, need not determine whether Israel’s asser-
tion of jurisdiction on these bases is in conformity with
international law because the Court finds that Israel has
properly asserted jurisdiction under international law,
pursuant to the universality principle.”

13. Israel may be able to assert jurisdiction to try respon-
dent, pursuant to the Nazi statute based on the “protective”
principle. International law has recognized a state’s right to
punish certain conduct occurring outside its territory by persons
who are not its nationals when the conduct is directed against
the security of the state or against important state interests or
functions. Restatement § 402(3) and § 402 Comment (d). The
regulated actions must have a demonstrable, adverse affect on
the regulating state in particular, or at least a potentially adverse
affect on that state. United States v. James-Robinson, 515 F.
Supp. 1340, 1345 (S.D. Fla. 1981). The crimes subject to such
jurisdiction have included: espionage, counterfeiting of the
state’s seal or currency, the falsification of official documents,
perjury before consular officials and conspiracies to violate a
state’s immigration or customs laws. Restatement § 402, Com-
ment (d).

United States statutes and courts have recognized the pro-
tective principle’s validity in several contexts. Restatement
§ 403 Reporters’ Note 7. See e.g., United States v. Pizzaruzzo,
388 F.2d 8 (2d Cir. 1966), cert. denied, 392 U.S. 936 (1968)
(knowingly making a false statement on a visa application to
enter the United States); Rocha v. United States, 288 F.2d 545
(9th Cir. 1961), cert. denied, 366 U.S. 948 (1961), (sham mar-
riages abroad to make unlawful entries as immigrants). In re-
cent years, United States courts have used the principle to uphoid
extraterritorial jurisdiction over narcotics traffickers. Accord
United States v. Postal, 589 F.2d 862, 886 n. 39 (5th Cir. 1979);
United States v. King, 552 F.2d 833, 851 (9th Cir. 1976) cert.
denied, 430 U.S. 966 (1977); United States v. Angola, 514 F.
Supp. 933 (S.D. Fla. 1981). See also Note, “Trends in Extra-
territorial Narcotics Control: “Slamming the Stable Door After
the Horse has Bolted”, 16 N.Y.U.J. Int’l L & Pol. 353, 374-90

(Continued on following page)

A68

B. Charges Within the Treaty

Respondent argues that the crimes he is charged with
do not “conform to the letter or intent of the U.S.-Israel
Extradition Treaty.” Motion to Terminate at 23. He
argues that:

. . . The alleged “crime against the Jewish people”
does not in any way conform to the letter or intent of
the U.S. - Israel Extradition Treaty (14 U.S.T. 1708).
The list of Extraditable Crimes under Article II of the
Treaty exhibits no language encompassing war crimes,
genocide, crimes against “persecuted people” or per-
secuted nationalities. The specific acts and intent
which must be demonstrated under the Law of Israel
(Nazi and Nazi Collaborators (Punishment) Law), in
order to confer extraterritorial jurisdiction, under Is-
raeli Domestic Law, and in Israel’s view under the
substantive International Law, automatically eliminate

Footnote continued—

(1984). These courts have reasoned that vessels in close prox-
imity to the United States, full of illegal drugs, represent a real
potential for harm to the effective administration of United
States’ customs and narcotics laws, which reflect a strong gov-
ernmental interest. United States v. Angola, 514 F. Supp. at
936.

In the instant case, it has been argued that important state
interests of Israel were affected by the acts alleged. Brief of
Amicus Curiae (The International Human Rights Law Group
(filed April 10, 1984) at 42-45).

Israel may be able to assert jurisdiction based on the “passive
personality” theory. Under that theory, a state may, in certain
circumstances, apply its criminal law to an act committed out-
side its territory by a person not its national, because the victim
of the act was its national. Restatement § 402, Comment (e);
id. The validity of this theory in international law is in doubt.
Restatement § 402, Comment (e). And, the victims of the al-
leged crimes were, of course, not Israeli citizens. Nonetheless,
it is possible that Israel may assert jurisdiction here because of
its close nexus with the victims. See Brief of Amicus Curiae
at 42-44.

oat oases neansaceuaii eal

MS tebe eee ee rmmne schon 5

‘yer athe

A69

the Israeli charge and the acts supporting the charge,
from the category of statutory murder. The crime of
murder set out in Article II of the Treaty excludes
the elements of the offense of genocide or war crimes.

Motion to Terminate at 23. The Treaty provides, in rele-
vant part:

Article I

Each Contracting Party agrees, under the condi-
tions and circumstances established by the present
Convention, reciprocally tc deliver up persons found
in its territory who have been charged with or con-
victed of any of the offenses mentioned in Article II of
the present Convention committed within the territorial
jurisdiction of the other, or outside thereof under the
conditions specified in Article III of the present Con-
vention.

Article I

Persons shall be delivered up according to the pro-
visions of the present Convention for prosecution when
they have been charged with, or to undergo sentence
when they have been convicted of, any of the follow-
ing offenses:

1. Murder.
2. Manslaughter.
3. Malicious wounding; inflicting grievous bodily
harm...
Article III

When the offense has been committed outside the
territorial jurisdiction of the requesting Party, extra-

A70

dition need not be granted unless the laws of the re-
quested Party provide for the punishment of such an
offense committed in similar circumstances. .. .

Respondent is correct in asserting that the crimes for
which Demjanjuk is charged must fall within the treaty
provisions for Demjanjuk to be found extraditable.

The Arrest Warrant-Exhibit J charges respondent with
“Crimes against the Nazi and Nazi Collaborators (Punish-
ment) Law, 5710-1950”. The Warrant Requ:-+- Exhibit J
more fully sets forth the charges:

Details of the offense(s): The suspect, nicknamed
“Ivan the Terrible”, was a member of the S.S., and
in the years 1942 - 1943 operated the gas chambers
to exterminate prisoners at the Treblinka death camp
in the Lublin area of Poland, which was occupied by
the Nazis during the Second World War. The suspect
murdered tens of thousands of Jews, as well as non-
Jews, killing them, injuring them, causing them serious
bodily and mental harm and subjected them to living
conditions calculated to bring about their physical de-
struction. The suspect committed these acts with
the intention of destroying the Jewish people and
to commit crimes against humanity.

Paragraph(s) of the charges: Paragraphs 1, 2, 3, and
4 of the Nazi and Nazi Collaborators (Punishment)
Law, 5710-1950.

In addition, the eyewitness statements in the Israeli Ex-

tradition Request allege specific instances of killings, beat-
ings, and injuries inflicted by respondent.'*

For the reasons set forth below, this Court finds that
some of the charges alleged against Demjanjuk are of-

14. See infra at 37-41 [A79-A83].

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a Leen)

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fenses for which he is extraditable under Article ITI of
the Treaty and are offenses mentioned in Article II of
the Treaty.

1. Extraditable Charges.

Demjanjuk i

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1245%3A2. Public record. Not legal advice.