On August 18, 1993, the Supreme Court of Israel sitting as the High
Court of Justice gave its decision on 10 petitions brought by survivors
of the Holocaust and others demanding
that John (Ivan) Demjanjuk should be brought to trial on charges of
war-crimes at Sobibor and other concentration camps.
These petitions follow the decision of the Supreme Court to acquit Demjanjuk,
by reaason of doubt, of the brutal offenses attributed to Ivan the Terrible
The court of three judges dismissed the petitions.
JUSTICE SHLOMO LEVIN considered in detail the reasons set out in the
opinion of the Attorney-General which argued against bringing Demjanjuk
to trial. This opinion was based on four arguments:
1) That a further trial would infringe the rule of 'double jeopardy'
in that Demjanjuk would be standing trial for offenses in respect of
which he had already been tried and acquitted.
2) That the Supreme Court, in acquitting Demjanjuk of charges attributed
to Ivan the Terrible of Treblinka, had stated that it did not think
it reasonable to commence new proceedings against him, in view of the
seriousness of the offenses with which he had originally been charged
and the nature and circumstances of the alternative charges.
3) That on the basis of the evidence available, it was unlikely that
Demjanjuk would be convicted of the alternative charges, and that risking
a further acquittal was not in the public interest.
4) That Demjanjuk was extradited form the United Staes specifically
to stand trial for offenses attributed to Ivan the Terrible of Treblinka,
and not for other alternative charges.
Justice Levin noted that under Israeli law, it was established that
authority in criminal matters is vested with the Attorney-General, who
is authorized to bring charges in any case where there is sufficient
evidence, unless he believes that there is no public interst in bringing
the case. He further noted that the Attorney-General has a wide discretion
in making such a decision and that the Court should only intervene when
the decision is so untenable as to be totally unreasonable.
Justice Levin went on to consider the arguments put forward by the
Attorney-General. He found that it was not unreasonable to consider
that bringing charges against Demjanjuk might infringe the 'double jeopardy'
rule. Similarly, it was not unreasonable to estimate that chances of
convicting Demnajuk were small, particularly in view of the fact that
none of the survivors of the Sobibor camp had identified him. Justice
Levin also held that, although the opinion of the Supreme Court as regards
further proceedings only related to the case before it, the Attorney-General
could not be criticized for giving weight to the Court's comments in
Justice Levin considred a number of other arguments raised by the petitioners,
among them that a failure to bring Demjanjuk to trial would effectvely
broadcast a message that the time when Nazi war criminals could be brought
to trial has passed. This, he said, was not so. The obligation to bring
Nazis and collaborators to trial remains binding on every state, when
there is evidence to substantiate the charges.
JUSTICE GAVRIEL BACH noted the difficulties involved in releasing a
defendant who may be guilty of the barbaric and bestial offenses committed
by the Nazis.
Justice Bach stated that he differed from his colleagues in that he
did not attach any significant weight to some of the arguments put forward
by the Attorney-General. Among these was the argument that the decision
of the Supreme Court acquitting Demjanjuk of the crimes attributed to
Ivan the Terrible contained a direction, express or implied, not to
institute further proceedings against him. The relevant portion of the
court's decision, stated Justice Bach, related only to the specific
question whether the case should be referred back to the District Court.
A case should be referred back to a lower court when new evidence which
may cast light on the charge in question is presented to the court.
This was not the s ituatioBn Abefore the Supreme Court; the question
was whether the defendant should be convicted of offenses at Sobibor
and Trawniki, charges substantially different from those in the indictment
before the Court. For this reason, stated Justice Bach, the court was
unable to refer the case back to the lower court. It was not the Court's
intention , however, to instruct the prosecutorial system on the issue
of whether to bring additional charges.
As regards the argument that Demjanjuk had been extradited specifically
to stand trial for offenses attributed to Ivan the Terrible of Treblinka,
Justice Bach found that this also was not persuasive. Even if the consent
of the United States authorities was required in order to bring further
charges, such consent could be requested. If the request was refused,
no charges need be filed and the defendant could be deported.
Accordingly, if the decision of the Attorney-General had been based
on these considerations alone, Justice Bach stated that there would
have been grounds to intervene in the decision.
However, a number of other arguments put forward in favor of the decision
were not unreasonable. Among these was the possibility that the 'double
jeopardy' rule would be infringed. The Attorney-General's concern in
this regard was supported by the fact that Demjanjuk's presence in the
Sobibor camp had been mentioned in the indictment and in other documents
submitted as evidence in the original trial and in the appeal. Moreover,
the prosecution had argued in the appeal that the Court could convict
Demjanjuk of offenses committed at Sobibor since these had been proved
before the Court, and the defendant had had an opportunity to defend
himself against these charges. Similarly, the presence of Demjanjuk
at Trawniki had also been considered by the Court.
Justice Bach also considered the arguemnt that bringing further charges
would not serve the public interest, since evidentiary difficulties
raised the likelihood of a further acquittal. He did not feel that this
consideration was unreasonable.
Accordingly, Justice Bach concurred in dismissing the petitions. He
emphasized, however, that this should in no way be taken to imply that
war criminals can no longer be brought to trial. The Israeli legislator
placed no statute of limitations on offenses committed by Nazis and
their collaborators, and in many cases no evidentiary difficulties in
proving the identity and activiites of the defendant arise. Nazis and
collaborators should continue to be found and brought to trial, as long
as they live.
JUSTICE MISHAEL CHESHIN noted the grave responsibility that rests on
the Court when deciding whether to intervene in an administrative decision.
He also noted the inadequacy of the legal system, which is designed
to deal with behavioral norms, when confronted with the scale of the
atrocities committed by the Nazis.
Justice Cheshin then considered the decision of the Supreme Court not
to convict Demjanjuk of the charges other than those relating to offenses
committed at Treblinka. In this decision he saw more than a hint to
conclude the proceedings against Demjanjuk. He concerred with Justice
Levin in finding that the Attorney-General was entitlted to take guidance
from the comments of the court, even though strictly they related only
to the proceedings actually before the Court.
Justice Chesin stated that he saw no room to intervene in the decision
of the Attorney-General, and that he concurred with the view and reasoning
of Justice Levin.