Matter of Extradition of Demjanjuk
612 F. Supp 544 (1985)
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Rule of Law:
Extradition for war crimes and crimes against humanity, charged as murder, is permissible under a general extradition treaty and the principle of universal jurisdiction, provided there is probable cause and the political offense exception does not apply.
Facts:
- John Demjanjuk, a native of the Ukraine, Union of Soviet Socialist Republics, entered the United States on February 9, 1952, and was granted lawful permanent residence.
- On November 14, 1958, he was naturalized as a United States citizen in Cleveland, Ohio, changing his first name from Ivan to John, and subsequently resided in Seven Hills, Ohio.
- Demjanjuk made material misrepresentations in his visa application by failing to disclose his service to the German SS at the Trawniki and Treblinka prison camps in 1942-43.
- The Government of Israel requested Demjanjuk's extradition on October 31, 1983, based on an Israeli arrest warrant charging him with 'crimes of murdering Jews' under Israel's Nazis and Nazi Collaborators (Punishment) Law.
- Eyewitnesses Elijahu Rosenberg, Pinhas Epstein, Sonia Lewkowicz, and Joseph Czarny, former Treblinka prisoners, identified photographs of Demjanjuk as 'Ivan from Treblinka' or 'Ivan the Terrible,' who operated gas chambers and committed other atrocities.
- Witness accounts described Demjanjuk operating gas chambers where thousands died, beating prisoners with an iron pipe leading to death (including Zigmond Eleibaum), cutting off David Auslander's ear resulting in his death, and hanging three prisoners (including Michelle and Moishe).
Procedural Posture:
- On June 23, 1981, the U.S. District Court, N.D. Ohio, found that Demjanjuk had made material misrepresentations in his visa application and ordered his U.S. citizenship revoked and certificate of naturalization canceled.
- The Sixth Circuit Court of Appeals affirmed the denaturalization order.
- The U.S. Supreme Court denied certiorari.
- On December 6, 1982, the Immigration and Naturalization Service (INS) began deportation proceedings against Demjanjuk.
- On October 31, 1983, the Government of Israel requested Demjanjuk's extradition from the United States.
- On November 18, 1983, the U.S. Government filed a complaint in the U.S. District Court, N.D. Ohio, seeking Demjanjuk's extradition to Israel.
- On May 23, 1984, an Immigration Judge found Demjanjuk deportable and designated the U.S.S.R. as the country of deportation, initially granting an option for voluntary departure.
- On July 17, 1984, the U.S. District Court, N.D. Ohio, ruled that the extradition and deportation proceedings were independent and could proceed concurrently.
- On February 14, 1985, the Board of Immigration Appeals dismissed Demjanjuk’s appeal of the deportation order, affirmed deportability, and reversed the grant of voluntary departure.
- On December 6, 1984, and March 8, 1985, the U.S. District Court, N.D. Ohio, issued orders confirming jurisdiction and that the U.S.-Israel extradition treaty remained in full force.
- On March 12, 1985, an extradition hearing was held in the U.S. District Court, N.D. Ohio, to address identification, treaty interpretation, and probable cause.
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Issue:
Does the U.S.-Israel extradition treaty permit the extradition of John Demjanjuk to Israel for charges of murder, given allegations of war crimes and crimes against humanity committed outside Israel, and arguments concerning identification, ex post facto application of law, double jeopardy, dual criminality, and the political offense exception?
Opinions:
Majority - Battisti, Chief Judge
Yes, the U.S.-Israel extradition treaty permits the extradition of John Demjanjuk to Israel for charges of murder. The court found that there was probable cause to identify Demjanjuk as the individual sought by Israel, based on eyewitness affidavits and authenticated photographs. Israel's assertion of jurisdiction over the alleged offenses is proper under the international law principle of "universal jurisdiction," which allows any state to punish perpetrators of crimes against humanity and war crimes, considered "common enemies of all mankind." The charges of mass murder, though falling under Israel's Nazi Statute, are crimes of "murder" as enumerated in Article II of the extradition treaty, as treaties should be liberally construed to effectuate their intent, and the motive (e.g., racial hatred) does not alter the fundamental criminality of murder. The court rejected defenses that the Israeli statute was ex post facto because murder was illegal under international law (Hague Conventions) at the time the acts were committed, and the statute merely provides a new forum. The court also found that denaturalization and deportation proceedings are civil, not criminal, thus Article VI's double jeopardy provision did not apply. The common law principle of "dual criminality" was deemed inapplicable where the treaty itself governs, but in any event, the acts alleged would constitute murder in both jurisdictions. Finally, the "political character" offense exception did not apply because the indiscriminate murder of defenseless civilians in a concentration camp as part of an extermination scheme is not a political act incidental to a struggle for political power, but rather a violation of international standards of civilized conduct.
Analysis:
This case significantly affirms the principle of universal jurisdiction for severe international crimes like war crimes and crimes against humanity, allowing states to prosecute such offenses even if committed extraterritorially against non-nationals before the prosecuting state's existence. It establishes a broad interpretation of "murder" within extradition treaties to encompass mass atrocities, preventing perpetrators from escaping justice due to technical distinctions in labeling. The ruling also narrowly construes the political offense exception, signaling that acts violating fundamental international norms of civilized conduct, even if occurring during wartime, are not protected. This precedent strengthens international cooperation in prosecuting alleged war criminals and underscores that certain heinous acts transcend national borders and political motivations.
