Human Rights: Journal of the Section of Individual Rights & Responsibilities
Winter94
Vol. 21 Issue 1, p28, 2p
Demjanjuk: Examining his human rights violations
By Alfred de Zayas

The Justice Department's handling of the case against John Demjanjuk, charged with being Treblinka's Ivan the Terrible, should be proof that a review is needed of the methods used by the department's Office of Special Investigations (O.S.I.).

On November 17, 1993, the Sixth Circuit Court of Appeals in Cincinnati set aside its 1986 order to extradite John Demjanjuk, 74, to Israel to face murder charges.

The court held that "the O.S.I. attorneys acted with reckless disregard for their duty to the court" and that they had committed "fraud on the court."

Demjanjuk was extradited in 1986, tried, sentenced to death, and spent over five years on death row. He would have been executed long ago but for the Israeli Supreme Court, which quashed the earlier judgment in July 1993 and returned him to the United States in September 1993.

Demjanjuk's ordeal, however, is not over: He was stripped of U.S. citizenship in 1981 and he is now fighting to regain it. If he fails, he will face deportation proceedings.

Besides signaling the necessity to watch for misconduct on the part of overzealous prosecutors, the Sixth Circuit's decision gives occasion for broader reflection on the human rights implications of the Demjanjuk and other O.S.I. cases.

Human rights principles are tested not on consensus victims or politically correct victims, but rather on unpopular individuals. It is the controversial case, in which hardly anyone wants to recognize the person in question as a victim, that usually creates good law and establishes precedent.

Being the devil's advocate is rarely appreciated, and yet a new perspective often helps to bring about a better synthesis, a more human solution.

Nearly 100 years ago, Emile Zola exposed and condemned the failures of French justice in his article "J'accuse." We remember that in 1894 Alfred Dreyfus, a French officer of Jewish descent, had been accused falsely and convicted of betraying military secrets. He was sent to Devil's Island to serve a sentence of life imprisonment.

Evidence of his innocence was uncovered but suppressed by the military: Zola's uncomfortable advocacy forced even the politically correct to reassess the case, and Dreyfus was finally vindicated. New standards of journalism emerged and we are all the better for it.

Applying the Dreyfus precedent to the Demjanjuk case, we start from the premise that everyone accused of a criminal offense is entitled to the presumption of innocence. While we all agree that Nazism was one of the most inhuman systems the world has known, where war crimes and crimes against humanity were perpetrated in an unprecedented scale, justice requires that only the guilty be punished.

The Nuremberg Trials proved, to the horror of the world, that genocide had been committed. But not all of the accused were convicted and sentenced to death: After due deliberation the International Military Tribunal acquitted three of the Germans because the facts before the tribunal had not established their guilt.

Thousands of war crimes trials followed in many countries to ensure that the murderers did not get away.

Yet, even while we all hate Nazis and agree that Ivan the Terrible and persons like him must be prosecuted, we also have to recognize that the Israeli Supreme Court found that former Cleveland auto worker John Demjanjuk is not Ivan the Terrible.

Given that finding, Demjanjuk has rights to due process under the U.S. Constitution which must be respected. Moreover, he has rights under an international minimum standard on human rights which has been laid down in regional and universal instruments, notably in the Universal Declaration of Human Rights of 1948, the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, the International Covenant on Civil and Political Rights of 1966, and the American Convention on Human Rights of 1969.

The most important treaty in this field is the International Covenant on Civil and Political Rights of 1966, which the United States signed in 1977 during the Carter Administration and ratified in 1992 during the Bush Administration.

Article Vl of our constitution stipulates that treaties made under the authority of the United States shall be the supreme law of the land and that judges shall be bound thereby.

Thus, in all criminal matters and in suits at law pursuant to the 1979 Holtzman Amendment in denationalization and deportation cases, judges ought to take international law into consideration, including the obligations undertaken by the United States pursuant to the Covenant on Civil and Political Rights.

Demjanjuk's 16-year ordeal, his detention, extradition proceedings, surrender to Israel, trial in Israel, years on death row (from 1988 to 1993), continued detention after acquittal, and further proceedings in the United States following his return raise numerous issues, not only under the U.S. Constitution but also under the Covenant.

Among them:

-- the right to a fair hearing. Subjecting Demjanjuk to a criminal proceeding more than 40 years after the offenses in question raises issues under this provision because it is extremely difficult for him -- or anyone in his position -- to properly represent himself, in view of his old age and the near impossibility of obtaining exculpatory documents and witnesses, or even of remembering the events under investigation.

-- the right to liberty and security of the person. With regard to Demjanjuk's detention, it is clear that to the extent that he was a suspected war criminal and a warrant had been issued for his arrest, his detention was lawful.

On the other hand, it is questionable whether the length of detention was appropriate in the circumstances of his case.

-- the prohibition of arbitrary deportation. Judges must take into consideration that under international law a state cannot expel its own nationals.

-- the right to return to one's country.

Considering that Demjanjuk has lived most of his life in the United States, that he was a citizen for decades, that his entire family lives in the United States, and that he has no links to other countries, there can be no doubt that the USA is his country.

-- the right to family life and privacy. The deportation of Demjanjuk would violate 'his right to family life' because he would be separated from his entire family.

-- the right to equality of treatment. Currently one particular category of immigrants is being singled out for de-nationalization and deportation: persons who served the Nazi regime, whether voluntarily or through conscription.

-- the prohibition of inhuman or degrading treatment.

The nature of the proceedings against Demjanjuk, the hostile atmosphere that accompanied the extradition, the surrender for trial in Israel, the initial trial in Israel, the demonstrations of jubilation following his being sentenced to death in April 1988, the ensuing years of uncertainty, the continued detention for eight weeks following acquittal by the Israeli Supreme Court -- all these elements, taken cumulatively, may be deemed to amount to cruel and degrading treatment.

-- the right to compensation. If indeed Demjanjuk is not Ivan the Terrible, the question arises whether he is entitled to compensation for miscarriage of justice.

It is surprising that hitherto both the press and legal literature seem to have ignored the fact that Demjanjuk may have a justifiable claim for compensation; yet this is an established right in international law.

In light of these issues, it is clear that United States' obligations under international law require respect of Demjanjuk's rights. It would be regrettable if the United States was to be perceived in the world as not adhering to the international minimum standard with regard to John Demjanjuk.

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By Alfred de Zayas

Alfred de Zayas is a visiting professor of international law at DePaul University School of Law in Chicago. A graduate of Harvard Law School and a member of the New York bar, he also holds a doctorate in history.