In the Supreme
Court, sitting as a Court of Criminal Appeals, before the President,
Justice Meir Shamgar; the Deputy-President, Justice Menahem Elon; and
Justices Aharon Barak,
Eliezer Goldberg, and Ya'acov Maltz, in the matter of Ivan
(John) Demjanjuk, appellant, versus the State
of Israel, respondent (Cr.A. 347/88).
The appellant, who was extradited to Israel from the United States
in February 1986, was convicted on April 18, 1988, in the District Court
of Jerusalem, of crimes against the Jewish People under section 1(a)(1)
of the Nazi and Nazi Collaborators (Punishment) Law of 1950; crimes
against humanity under Section l(a)(2) of the said Law; war crimes under
section l(a)(3) of that Law; and crimes against persecuted people under
section 2(1) of that Law, together with section 300 of the Penal law
of 1977. He was sentenced to death and he appealed, both against the
conviction and sentence, to the Supreme Court.
The indictment against the appellant recited in some detail the origin
and development of the 'Final
Solution of the Jewish Problem', including what is known as 'Operation
Reinhardt', devised by the Nazi regime in Germany, and the acts
of the appellant in the course of that operation.
'Operation Reinhardt' followed the organized massacres by bands of
which roamed through the East, concentrated groups of Jews, and shot
them. It was aimed at expediting and improving the extermination process
by rounding up Jews and conveying them to death camps to be killed in gas chambers. It included
guarding the victims on their way to, and in, the camps, and their removal
from the railway trucks. It also covered mobilization of forced Jewish
slave-laborers driven by threats, violence, and murder, who collected
their clothes and valuables, cut their hair, and also tore out teeth
from the corpses which they conveyed for burial and later for cremation
More specifically, the appellant was alleged to have served as an S.S.
'Wachman', and to have perpetrated unspeakable acts of cruelty in conducting
victims in the Treblinka concentration camp on the way to their death and to have operated, with
his own hands, the engines which pumped the poisonous exhaust fumes
into the gas chambers, thus causing the death of hundreds of thousands
of people killed in this manner.
It was also alleged that the appellant, because of his cruelty, was
called by the prisoners in Treblinka 'Ivan Grozny' ('Ivan the Terrible'),
and that he was widely known and recognized by that name.
The appellant did not deny that the cruel acts alleged in the indictment
had been committed, but he did deny that he had ever been at Treblinka,
or that he was 'Ivan the Terrible' who had served there. The District
Court, however, found that his identity had been established, and that
he had indeed committed the acts attributed to him.
The Supreme Court, in its judgment, first related the background to
the extermination of the Jews in Poland, and then described in detail
the Treblinka death camp and the atrocities committed there, the part
played by 'Ivan the Terrible' in those atrocities, and his criminal
responsibility for his actions under the sections of the Law cited in
The Court then referred to the postponements of the hearing of the
appeal following the death of the late Advocate Dov Eitan, who was to
have appeared with Advocate Sheftel in the appeal, and following an
injury to Advocate Sheftel as a result of acid being thrown in his face.
Moreover, prior to the beginning of counsels' arguments on May 14,
1989. and subsequent thereto, numerous applications were submitted -
mostly by defense counsel - for the admission of new evidence, and also
for the hearing of evidence on commission. Pointing out that section
15 of the Nazi Punishment Law permitted the court 'to deviate from the
rules of evidence if it is satisfied that this will promote the ascertainment
of the truth and the just handling of the case', and recalling the warning
of the Supreme Court in the Eichmann case that that power should be
exercised only where the new evidence would be of importance and could
not have reasonably been brought before the trial court, the Court had
admitted further evidence relevant, inter alia, to the identification
of the appellant as 'Ivan the Terrible'. After all the delays the hearing
of the appeal, including counsels' further arguments, eventually concluded
on June 9, 1992.
Counsel had submitted, the Court continued, that the appellant could
not be tried for crimes under the Nazi Punishment Law since he had been
extradited to stand trial on charges of murder while the indictment
referred to the Nazi and Nazi Collaborators (Punishment) Law. Counsel
had relied, in this regard, on 'the principle of specialty', embodied
in sections 17 and 24 of the Extradition Law of 1954 under which, in
short, an extradited person may not be tried in the country requesting
the extradition for offenses other than those for which the extradition
was requested and granted, save with the consent of the extraditing
country or of the wanted person himself.
After citing numerous precedents and legal texts, and a far-ranging
analysis of the comparison between the crimes imputed to the appellant
and the crime of murder, the Court upheld the District Court's decision
that the principle of specialty had not been infringed in the present
A central feature relied upon by the court in this context was the
awareness of the American courts which dealt with the appellant's extradition
of the crimes for which he would be tried in Israel, and the relevant
sections of the Israeli statute which would be invoked. Judge Battisti,
in the court of first instance, said that 'Respondent's argument that
one who kills an individual is extraditable but one who kills many is
not extraditable ... leads to an absurdity'. Moreover, the American
court said, on appeal, that '...the particular acts of murder for which
he (the appellant) may be tried depend upon Israeli law. Israel may
try him under the provisions of the Nazi and Nazi Collaborators (Punishment)
Law for 'crimes against the Jewish People' ('Killing Jews', a species
of murder), 'crimes against humanity ('murder ... of 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 offence for which extradition
Turning to the evidence of the appellant's identification as having
served in Treblinka and having personally operated the gas machines
there, the Court then dealt with the 'Trawniki Certificate', which occupied
a central place in the trial.
Trawniki was the site of a training camp for Russian prisoners of war
who had volunteered to act as guards - Wachmaner - in assisting the
Germans in 'Operation Reinhardt'. The appellant, as a member of the
Trawniki Unit, was issued with a service certificate (Dienstausweis)
as an 'S.S. Wachman', which included his photograph and stated his personal
particulars (including the place and date of his birth). The defense
contended that no such certificates had been issued, and that the certificate
relied upon by the prosecution was a forgery of the K.G.B. However,
it was established by experts that the certificate was authentic, and
the production of similar certificates disproved the contention that
the 'Trawniki Certificate' was an isolated forgery.
Moreover, the additional evidence received in the appeal (which is
dealt with later in this summary), includes a 'posting order' and 'orders
of the day' in which the appellant's personal number, as stated in the
'Trawniki Certificate', is mentioned, and in one of which his date and
place of birth are recorded.
After considering, inter alia, the admissibility and weight of the
certificate as a 'public document' or an 'old document' under sections
29 and 43 of the Evidence Ordinance (New Version) of 1971, the evidence
of the experts, the appellant's own references to the certificate, and
the right of the court to rely on its own examination of the document,
the Court accepted the finding that the certificate was authentic, and
proved the appellant's participation in the extermination program -
a finding supported also by other evidence. However, it also agreed
with the District Court that the mention in the document of camps other
than Treblinka in which the appellant had served while Treblinka was
not mentioned at all, did not prove the appellant's denial that he had
served there, but was to be taken into account on this vital point.
The appellant, the Court continued, had pleaded an alibi both in regard
to the period during which he was alleged to have been in Treblinka,
and also after the extermination camps at Treblinka, Sobibor, and Belz
had ceased to function. After dealing with the legal aspects of the
defence of an alibi, and a close examination of the evidence relating
to both these periods, the Court agreed with the District Court that
the alibi relating to the relevant period (1942-1943) had had been completely
rebutted while - in view of evidence received after the trial - the
rebuttal in regard to the period after 1944 was not complete.
The Court then turned to the question of the identification of the
appellant as having served in Treblinka, and his activities there. Citing
numerous authorities, it dealt first with the general principles applicable
relating, inter alia, to the identification of a suspect on the basis
of photographs. It then examined, in great detail, the evidence of the
eye-witnesses who had testified before the District Court, or whose
statements had been admitted as evidence. In regard to the statements,
it also reviewed the procedures which had been followed to meet the
demands of section 15 of the Nazi Punishments Law which, as stated above,
empowers the court to deviate from the rules of evidence 'if it is satisfied
that this will promote the ascertainment of the truth, and the just
handling of the case'.
After a searching analysis of the evidence of all the witnesses relating
to the appellant's identity, and of defense counsels' arguments, the
court found no basis for interfering with the District Court's findings
based on that testimony. The Court dealt extensively, inter alia, with
the professional literature relating to evidence of identification after
many years, including the opinion that lapse of time does not, in itself,
The Court also pointed out that the District Court, in admitting depositions
under section 15 above, had only deviated from the rules of evidence
in admitting the depositions of witnesses who had died in the period
between their examination and the trial, and only after those who had
taken the depositions had given evidence and were available for cross-examination
by the defense.
Before considering the additional evidence adduced after the appeal
had been lodged, the Court rejected the criticisms of appellant's counsel
of the manner in which the District Court had discharged its task.
The Court then turned to consider the additional evidence admitted
at the stage of appeal. This evidence consisted of written depositions,
relating to different periods, given in the U.S.S.R. by 'Wachmaner'
who were examined in regard to their own crimes, and some of whom were
sentenced to death. Their testimony related to Treblinka, where they
served, and not a few of them mentioned a Ukrainian 'Wachman' called
Ivan Marchenko as the person who operated the machines of the gas chambers
in that camp.
In weighing the additional evidence, the court first dealt with the
necessity of proof of the defendant's guilt 'beyond a reasonable doubt'.
The authorities made it clear that the prosecution was not required
to provide proof 'beyond all doubt'. Some lingering or fanciful doubt
was not sufficient to justify an acquittal of the defendant. On the
other hand, it had been said that the degree of proof 'need not reach
certainty, but it must carry a high degree of probability'.
The Court explained that the expression 'reasonable doubt' was to be
interpreted rationally. The evidence should be consistent, but if there
were contradictions, the Court was entitled to decide what evidence
it was prepared to accept. However, there had to be a reasonable basis
for rejecting evidence as untrustworthy.
The Court then analyzed in detail the additional evidence, citing also
the opinions of experts on identification. It was true that the direct
additional evidence consisted only of depositions taken in the U.S.S.R.,
without the testimony of those who had taken them. The number of these
depositions, however, created a reasonable doubt which could not be
dispelled by speculation and surmise.
After the most careful consideration the Court had reached the conclusion
that the evidence now before it created a reasonable possibility that
the appellant was not the person called 'Ivan the Terrible' who operated
the gas chambers at Treblinka. That was the crime with which he was
charged in the indictment, and on that charge he was entitled to be
On the other hand, the evidence before the District Court and the additional
evidence showed that the appellant had served as an S.S. 'Wachman' in
the Trawniki Unit, and one deposition (of a 'Wachman' called Danilchenko)
described in detail the appellant's service in Sobibor. This deponent
had also identified the appellant in three photographic 'identification
parades', containing three different photographs of the appellant. Danilchenko
died before the appellant's trial had begun.
Under section 216 of the Criminal Procedure Law (Consolidated Version)
of 1982, the Court continued, the court may convict the defendant of
an offence of which he is shown to be guilty by the facts proved before
it even though those facts are not alleged in the indictment, provided
the defendant has been given a reasonable opportunity to defend himself.
The facts proved the appellant's participation in the extermination
process, the Court noted, and could perhaps sustain his conviction of
other offenses under the Nazi Punishment Law. The application of section
216, moreover, could also require a reconsideration of the 'principle
of specialty' in regard to such offenses.
In view, however, of the circumstances now existing, the Court had
decided not to apply section 216 in the present case. Affording the
appellant 'a reasonable opportunity' to defend himself now meant an
additional extension of the hearings beyond an acceptable limit. Even
taking into account the nature and extreme gravity of any charge or
charges which could now be preferred against the appellant, a change
in the basis of the extradition, more than seven years after the proceedings
against the appellant were opened, would be unreasonable. The right
of defense in a criminal trial was of the greatest importance, and was
not to be sacrificed whatever were the reasons for the delays in the
proceedings against the appellant.
The final result, therefore, was the acquittal of the appellant, on
the basis of a reasonable doubt, Of the offence attributed to him in
The question of the 'principle of specialty', within the framework
of extradition proceedings, therefore fell away.
In conclusion, the Court reiterated that, more than seven years ago,
Ivan Demjanjuk had been lawfully extradited from the United States to
Israel. The extradition was based on prima facie evidence. There was
testimony before both the District and the Supreme Courts that the appellant
was a member of the 'S.S. Wachman Unit' of Trawniki, which was established
for the sole purpose of learning and teaching its members to destroy,
kill, and exterminate, in implementing the 'final solution' of the 'Jewish
There was also evidence that after the appellant received his 'Trawniki
Certificate', he was posted to Sobibor, one of three extermination camps
established by the German authorities of the Third Reich within the
framework of the 'Reinhardt Operation'. It was also shown that he served
with the S.S. in the Flossenberg and Regensburg concentration camps.
The appellant was therefore a member of a group of 'S.S. Wachmaner'
whose purpose was murder and whose objective was genocide, and whose
like is unknown in the history of humanity.
The thrust of the indictment against the appellant was his identity
as 'Ivan the Terrible', who operated the gas chambers in the Treblinka
extermination camp. A number of survivors of the hell of Treblinka identified
the appellant as 'Ivan the Terrible', one of the main murderers and
persecutors Of the Jews who were brought to Treblinka on their way to
suffocation in the gas chambers, and for this he was convicted in the
After the hearing of argument in the appeal, the Court admitted the
statements of a number of in which some person other than the appellant
was referred to as Ivan the Terrible of Treblinka. The court did not
know the origin or authorship of these statements, but admitted them
as evidence without formal proof of their authenticity. These statements
raised reasonable doubts as to the identity of the appellant as Ivan
the Terrible of Treblinka, and deterred the Court from convicting him
on this charge.
In the result, the 'Wachman' Ivan Demjanjuk is acquitted, by reason
of doubt, of the outrageous crimes attributed to Ivan the Terrible of
Treblinka. Judges, who are only human, cannot reach perfection, and
it is only right that they judge on the basis of what is placed before
them, and on that basis alone.