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Alan Dershowitz   Letter 05   23-Jul-1999   The Lord Denning straw man
"To argue that Israel had jurisdiction to try John Demjanjuk is indistinguishable from arguing that if the Goldman and Brown families today set up their own republic on an island in the Caribbean, and if around the year 2050 they extradited O.J. Simpson and personally sat in judgment over him on their island, that they would have jurisdiction because it was their relatives who had been murdered." Lubomyr Prytulak

July 23, 1999

Alan M. Dershowitz
Felix Frankfurter Professor of Law
520 Hauser Hall
Harvard Law School
1575 Massachusetts Avenue
Harvard University
Cambridge, MA   02138
USA

Alan Dershowitz:

In your book, Chutzpah, you introduce Lord Denning's letter to the Daily Telegraph of 28Apr88 protesting the Israeli trial of John Demjanjuk with the following words:

No sooner was the sentence of death pronounced than protests arose throughout the world.  Among the most damning was one written by Lord Denning of Great Britain, perhaps the most prominent living judge in the Anglo-American world.  This is some of what he said in the London Telegraph.
Alan M. Dershowitz, Chutzpah, Little, Brown and Company, Boston, Toronto, and London, 1991, p. 169

On the left below, I reproduce Lord Denning's letter in its entirety, and on the right the version that you present in your book.  The parenthesized numbers in red will permit easy reference to Lord Denning material that you deleted:

Lord Denning letter to the Daily Telegraph of 28Apr88 Alan Dershowitz version of the Lord Denning letter as published in Chutzpah.
SIR John Demjanjuk has been tried by the judges of Israel and sentenced to death (report, April 25).  I would ask these questions. (1)
First, against what law had he offended?  Not against the law of Israel.  The offences were committed in the years 1942-1943 before the State of Israel existed or had any laws of its own.  It was not founded until 1948.  Nor were the offences committed against the laws of Germany or Poland.  They were committed in the concentration camp at Treblinka and were done by the orders of those in authority in those states. First, against what law had he offended?  Not against the law of Israel.  The offences were committed in the years 1942-1943 before the State of Israel existed or had any laws of its own.  It was not founded until 1948.  Nor were the offences committed against the laws of Germany or Poland.  They were committed in the concentration camp at Treblinka and were done by the orders of those in authority in those states.
The only law against which he had offended was the international law in respect of crimes against humanity. (2)
It was defined in the Charter of Nürnberg: "Murder, extermination, and enslavement, deportation and other inhuman acts committed against any civilian population before or during the war." (3)
Second, what state had jurisdiction to try such crimes against humanity?  According to international law a single state after the war might have jurisdiction to set up its special court to try such crimes committed by persons in its custody.  The four powers who signed the Charter for Nürnberg acted on this principle by agreeing to set up the Nürnberg Court to try the war criminals then in custody in Germany. (4)
But I know of no principle by which the State of Israel could set up such a court to try crimes said to be committed over 40 years earlier in a far off country by a man not in its custody. (5)
In my opinion it was contrary to international law for the State of Israel to arrange with the United States for the deportation of Demjanjuk to Israel to stand trial there; and for the Court of Israel to try him there for a crime against humanity.  If he was to be tried at all it should have been by an international court of justice like the one set up in Nürnberg for he was a war criminal just like Goering and the rest. In my opinion it was contrary to international law for the State of Israel to arrange with the United States for the deportation of Demjanjuk to Israel to stand trial there....

(6)
I am afraid too that the trial shows signs of racial and political vengeance.  Whereas at the trial at Nürnberg the prosecution's case against those convicted was clear on the documents and undisputed, here there was room for doubt.  The prosecution's case was rested on identification by witnesses over 40 years later.  But we all know how mistakes are made by the witnesses at identification parades here.  The accused protested his innocence throughout.
(7)


The accused protested his innocence throughout.
The atmosphere at the trial can be seen by the report that there was "clapping, cheering and dancing" by the packed "audience" when he was sentenced to death.  When I have sentenced to death there was a hushed calm and solemn silence. The atmosphere at the trial can be seen by the report that there was "clapping, cheering and dancing" by the packed "audience" when he was sentenced to death.  When I have sentenced [prisoners] to death there was a hushed calm and solemn silence.44
  44 Lord Denning, letter to the editor, London Daily Telegraph, April 28, 1989.

Lord DENNING
Whitchurch, Hants

 


The magnitude of expurgation

Although you do inform Chutzpah readers that you are only reproducing "some of" what Lord Denning said, you provide only one set of ellipsis points, leaving your reader with the impression that you have omitted a bit of extraneous material from a single location.  In fact, however, you reproduce only 154 of Lord Denning's original 457 words thus deleting two words out of every three and several ellipses in the several locations where you made deletions would not only have conformed to standard usage, but would also have given your reader some hint as to how little of Lord Denning's original letter you were permitting him to see.

You do reproduce one of Lord Denning's stronger points, but fail to answer it

Retroactive laws.  It is widely regarded as desirable that a law not punish a man for something he did prior to the law being passed.  However, the Israeli prosecution of John Demjanjuk appears to have been conducted under one such retroactive law that is, whereas the crimes attributed to John Demjanjuk were said to have been committed in 1942-1943, the State of Israel did not come into existence until 1948, and the laws under which John Demjanjuk was prosecuted did not come into existence until 1950.

You do reproduce this part of Lord Denning's letter, but your own reply that you reproduce in Chutzpah never answers his objection.

And you do reproduce another of Lord Denning's stronger points, but then lie about it

Audience reaction upon sentencing to death.  You do reproduce Lord Denning's description of the audience reaction upon the sentence of death being pronounced "clapping, cheering and dancing by the packed audience" but in your reply you attempt to replace it with your own contrasting, but wholly false, description, as I have already documented in my letter to you of 08Jul99.

This is not merely an extraneous detail of the trial carrying no import.  Rather, the sort of audience reaction described by all observers that I have been able to find, with the exception of yourself, supports the conclusion that the Israeli judges permitted the audience to harass and intimidate the Demjanjuk defense throughout the trial.

But mainly you go on to expurgate four of Lord Denning's strongest points

Below are the four Lord Denning points that you did not allow Chutzpah readers to see.

(1) Identification after more than four decades.  You denied Chutzpah readers the opportunity to read Lord Denning's simple and powerful, if self-evident, point, made in two locations, (5) and (7), the latter being:

(7)
The prosecution's case was rested on identification by witnesses over 40 years later.

How reliably can we identify someone that we last saw more than four decades ago?  By and large, the question cannot be answered because our experience with such an identification is so rare.  People that we knew that long ago almost never make a reappearance, and when they do, we often have had photographs of them to refresh our memories.  Most of our acquaintances from the distant past will have been school friends, and so we often will have had class photographs or yearbooks which have kept our memories alive, and which may encouraged the illusion that memory alone has sustained the image.  The plausible hypothesis which we are unable to reject is that in the absence of all contact and of photographs, it may be next to an impossibility to recognize a face after more than forty years, not only because of the fading of memory, but also because of changes in the person being recognized.

Of course I do not mean to propose an absolute rule that no face can can ever be recognized after the passage of more than forty years.  Of course a few people will have exceptionally good memories, and of course a few other people will have exceptionally memorable faces and will have changed exceptionally little over time.  However, before a court is ready to credit someone's exceptional memory, it should ask that it be demonstrated, which it was not for any of the Demjanjuk witnesses; and John Demjanjuk does not have an exceptionally memorable face, and it was never argued that it had changed exceptionally little.  An exceptionally memorable face might be one with, to pick some arbitrary characteristics, jet-black hair, black eyes, swarthy complexion, aquiline nose, and a mole on the left cheek.  Yes, remembering these characteristics, there would be some chance of recognizing the individual who possesses them after the passage of several decades.  But John Demjanjuk is not memorable in this sense.  One cannot find anything to say about his 20-year-old face that would lead to his being identified when he was sixty.  One cannot even find anything to say about his 20-year-old face that would clearly distinguish him from other of the 20-year-old faces that surrounded him in those days.

Thus, the idea that we can be sure beyond a reasonable doubt that witnesses can recognize a face they have not seen for more than forty years is preposterous.  No evidence to justify such confidence exists.  All evidence points in the opposite direction that memory is shockingly undependable even for recent events, and that misidentification is commonplace.

(2) Israel had no jurisdiction.  You denied Chutzpah readers the opportunity to read Lord Denning's point captured in most concentrated form at:

(5)
But I know of no principle by which the State of Israel could set up such a court to try crimes said to be committed [...] in a far off country by a man not in its custody.

"Committed in a far off country."  The overriding principle would seem to be that jurisdiction goes to the country in which a crime is committed.  But as the crimes charged against John Demjanjuk had not been committed in Israel, or any territory that Israel ever controlled or occupied or had jurisdiction over, then according to this overriding principle, Israel would have no jurisdiction over John Demjanjuk.

"By a man not in its custody."  A secondary principle might be that a country has jurisdiction over its own citizens or residents wherever they may be.  But as John Demjanjuk had never been either a citizen or a resident of Israel, and never had any connection with Israel whatever, then Israel would have no jurisdiction according to this secondary principle either.

Thus, there appears to be no rule which would give Israel jurisdiction to try John Demjanjuk.

The Israeli contribution to world jurisprudence letting victims be judges.  But does the fact that Jews were among the leading victims of Nazism, and that Israel is a Jewish state give Israel jurisdiction to try Nazi crimes, and thus to try John Demjanjuk?  Surely such a proposition flies in the face of common sense.  Surely a fundamental principle of justice is that the accused be tried by impartial parties, and not by those who see themselves as the victims of the alleged crimes.  Thus, we would not have allowed O.J. Simpson jurors to be picked exclusively from the families of Ron Goldman and Nicole Brown.  We would not have allowed even a single member of either the Goldman or Brown family to sit on the O.J. Simpson jury.  We would not have allowed any member of the Goldman or Brown family to act as the presiding judge.  We would not have allowed any member of the Goldman or Brown family even to serve on the prosecution team, or even to work as clerk or guard in the court room during the trial, or even to turn the key on his cell door, or even to prepare his food, or even to drive his police van.  Any jurisdiction aspiring to Western standards of justice would have known to keep the victims, and all those related to the victims, and all those who felt themselves to be among the victims entirely away from the judicial process and from the accused.

An analogy.  To argue that Israel had jurisdiction to try John Demjanjuk is indistinguishable from arguing that if the Goldman and Brown families today set up their own republic on an island in the Caribbean, and if around the year 2050 they extradited O.J. Simpson and personally sat in judgment over him on their island, that they would have jurisdiction because it was their relatives who had been murdered.

What you might say in the Caribbean republic if the Goldman-Brown families were paying you.  I expect that if at that future time you were retained by the Goldman and Brown families, you would agree that they did have jurisdiction this would require no great stretch of your logic, as it would follow the precedent of your earlier defending the jurisdiction of Israel in the case of John Demjanjuk.  And, incidentally, if the Goldman and Brown families hissed and booed O.J. Simpson during that trial, and if upon sentencing O.J. Simpson to death, they erupted in cheering, stamping, whistling, dancing and rhythmically chanting "Death!  Death!  Death!"  "Death to O.J.!"  "Death to the defense!"  "Death to all niggers!" you would claim that you had been present in court but hadn't seen or heard any such thing.  This would require no great expansion of your powers of forgetting, as it would follow the precedent of your earlier forgetting already cited above of a similar audience eruption during the sentencing of John Demjanjuk to death.

What you might say in the Caribbean republic if O.J. Simpson was paying you.  However, I expect too that if at that future time you were retained not by the Goldman-Brown families, but by O.J. Simpson, you would be able to find some grounds for concluding that the Goldman-Brown court in the Caribbean had no jurisdiction.

O.J. Simpson was guilty, John Demjanjuk was innocent.  Of course the analogy is apt only with respect to the question of jurisdiction.  The analogy fails on the question of guilt because in the Simpson trial, the evidence of guilt was overwhelming and of tampering was negligible, whereas in the Demjanjuk trial, the evidence of tampering was overwhelming and of guilt was negligible.

(3) The Israeli motivation was vengeance, not justice.  You denied Chutzpah readers the opportunity to read Lord Denning's suggestion that the motivation behind the trial was not the pursuit of justice, but rather was indulgence in vengeance:

(7)
I am afraid too that the trial shows signs of racial and political vengeance.


(4) There is a court which did have jurisdiction.  You denied Chutzpah readers the opportunity to read Lord Denning's point which is made in deleted sections (2), (3), (4), (5), (6), and (7) and which is captured in most concentrated form at:

(6)
If he was to be tried at all it should have been by an international court of justice like the one set up in Nürnberg....

Your expurgated version of Lord Denning's letter invites your readers to imagine that if Israel had not tried John Demjanjuk, then nobody could have.  However, Lord Denning emphasizes at length that such was not the case.  Lord Denning points out that there was a court which had a much stronger claim to jurisdiction to try John Demjanjuk the international court at Nürnberg, or a court like it.  As this is the point that Lord Denning spends most time expounding, we may conclude that this was his main point, and thus that in representing Lord Denning's letter to Chutzpah readers, you expurgated his main point.

The reason that the prosecutors of John Demjanjuk did not ask that a court like the one at Nürnberg be revived to try John Demjanjuk is simply because they were aware that they had no case against him that any impartial court would credit, and they realized that the only court capable of convicting John Demjanjuk was an Israeli one.

Two typos, or two obstacles to verification?

In your footnote 44 above, your citation of Lord Denning's letter is off by one year you wrote 1989 where it should have been 1988.

Because in publishing your reply to Lord Denning, the London Daily Telegraph would provide the date of Lord Denning's original letter, anyone who found your reply would be able to find Lord Denning.  However, your footnote 45 in Chutzpah which cites your reply blocks this path to Lord Denning, first in not specifying a day in May, and second in getting the year wrong again:

45. Alan M. Dershowitz, letter to the editor, London Daily Telegraph, May 1989.
Alan M. Dershowitz, Chutzpah, Little, Brown and Company, Boston, Toronto, and London, 1991, footnote 45, p. 361

Typically, errors of this magnitude would be beneath notice, but in the present case some observers may note that because you had misrepresented Lord Denning's letter, you had a motive to hide it.

Congratulations on your victory over a straw man

And so, Mr. Dershowitz, it appears that when you came to describe Lord Denning's letter in your book, Chutzpah, you feared that your readers might be persuaded by it, and so instead of allowing them to see the unexpurgated letter in its entirety, you set up a straw man, you painted a placard saying "Lord Denning" and hung it around the neck of the straw man, and then you grabbed your straw man, wrestled him to the ground, punched his face, jumped up and down on his chest, tore off his arms and legs and then turned to your audience for applause.



Lubomyr Prytulak


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