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John Demjanjuk : Appeal to the Israeli Supreme Court

by Asher Felix Landau

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 murderers (Einsatzgruppen) 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 indictment.

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 case.

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 was granted'.

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, preclude identification.

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 acquitted.

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 indictment.

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 problem'.

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 District Court.

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.

Sources: Israeli Foreign Ministry