[Congressional Record Volume 140, Number 74 (Tuesday, June 14, 1994)]
[Extensions of Remarks]
[Page E]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: June 14, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                    ARTICLE BY PROF. ALFRED de ZAYAS

                                 ______


                      HON. JAMES A. TRAFICANT, JR.

                                of ohio

                    in the house of representatives

                         Tuesday, June 14, 1994

  Mr. TRAFICANT. Mr. Speaker, I rise today to submit part of an article 
regarding the case of John Demjanjuk recently printed in the Globe, the 
International and Immigrant Law Section newsletter published by the 
Illinois State Bar Association. Mr. Speaker, as you know, the Israeli 
Supreme Court acquitted John Demjanjuk of the charges of being Ivan the 
Terrible last September. Yet, the Justice Department still hounds Mr. 
Demjanjuk and threatens to deport him. Most recently, the Justice 
Department filed a petition with the Supreme Court to have the Court 
overturn a ruling by the 6th Circuit Court of Appeals which found that 
Justice Department attorneys had committed fraud on the court by 
withholding exculpatory evidence during Demjanjuk's extradition hearing 
in 1986. The courts ruling also effectively nullified his extradition 
order.
  Mr. Speaker, over the next few days, I will submit for the Record an 
article by Prof. Alfred de Zayas J.D. Ph.D, that deals with the 
Demjanjuk case.

                  [From the ISBA Globe, January 1994]

            Human Rights Implications of the Demjanjuk Case

                       (By Prof. Alfred de Zayas)

       After 17 years of investigations and legal proceedings in 
     the United States and Israel, the Ukrainian born retired auto 
     worker from Cleveland, John Demjanjuk, 74, is bracing for 
     further litigation. Vindicated of the charge of being the 
     infamous Ivan the Terrible of Treblinka, now he is being 
     accused of being a lesser war criminal, and the Justice 
     Department has moved to have him stripped of his American 
     citizenship and deported from the United States. As some 
     demonstrators outside his house in Cleveland have shouted: 
     ``If not Ivan the Terrible, at least a terrible Ivan.''
       On 30 December 1993, federal prosecutors filed briefs in 
     Federal District Court in Cleveland and in the Federal Court 
     of Appeals in Cincinnati, contending that Mr. Demjanjuk had 
     lied on his immigration papers and had served as a Nazi S.S. 
     guard in German death camps in Poland. Mr. Demjanjuk claims 
     to have been a prisoner of war in Germany and denies ever 
     having served as a Nazi camp guard.
       This constitutes a remarkable shift in legal strategy on 
     the part of the Office of Special Investigations (O.S.I.), 
     which for years had insisted that Mr. Demjanjuk was identical 
     with the barbaric Ivan the Terrible, who according to 
     witnesses tortured his victims before pumping gas into the 
     chambers where as many as 800,000 men, women and children 
     perished. It took the Israeli Supreme Court to prove the U.S. 
     prosecutors wrong.
       The history of this case is full of bitterness and 
     recrimination. As understandable as the abhorrence we all 
     feel against the Nazis is, judicial guarantees of due process 
     are there to prevent the ``lynching'' of persons suspected of 
     authorship or complicity in particularly offensive crimes. We 
     owe it to ourselves and to our system of justice to give Mr. 
     Demjanjuk all those procedural rights which the Nazis never 
     gave to their victims.
       It is in this sense that we should understand the tenor of 
     the November 17, 1993, decision of the Sixth Circuit Court of 
     Appeals in Cincinnati setting aside its 1986 order to 
     extradite Mr. Demjanjuk to Israel to face murder charges as 
     Treblinka's Ivan the Terrible. The unanimous court held that 
     crucial evidence had been withheld from the court and from 
     Demjanjuk's lawyers, concluding 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.'' These are strong words that should make the 
     Department of Justice review the methods used by the 
     Office of Special Investigations not only in the Demjanjuk 
     case, but in the more than 500 cases currently being 
     investigated or tried.
       While the Sixth Circuit Court has shown that U.S. justice 
     can exercise self-regulation and provide a measure of redress 
     in cases of miscarriage of justice, let us not forget that 
     Mr. Demjanjuk was indeed extradited in 1986, tried, sentenced 
     to death, and that he spent over five years on death row. In 
     fact, he would have been executed long ago but for the 
     courage of his Israeli defense lawyer. Yoram Sheftel, and the 
     integrity of the Israeli Supreme Court, which quashed the 
     earlier judgment in July 1993 and returned him to the United 
     States in September 1993.
       The question arises whether it serves any purpose to 
     prolong Demjanjuk's 17-year ordeal, and whether in the light 
     of the passage of time and the difficulty of obtaining 
     reliable evidence, it might not be better to discontinue the 
     proceedings in Cleveland and Cincinnati. At the very least, 
     we should be conscious of the arguments set forth in the 
     judgment of the Court of Appeals for the Sixth Circuit, 
     signalling the imperative need to watch for misconduct on the 
     part of overzealous prosecutors. We should also devote some 
     time to reflect more broadly on the human rights implications 
     of the Demjanjuk and other O.S.I. cases.
       Human rights principles are tested not on ``consensus 
     victims'' or on ``politically correct'' victims, but rather 
     on unpopular individuals. It is frequently the controversial 
     case, where hardly anyone wants to recognize the person in 
     question as a victim, that creates good law.
       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 falsely accused and convicted of 
     betraying military secrets. He was sent to lle du Diable. 
     French Guiana, 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.
       Applying the Dreyfus precedent to the Demjanjuk case, we 
     start from the premise that everyone accused of a criminal 
     offence is entitled to the presumption of innocence. While we 
     all agree that Nazism was one of the most inhuman systems the 
     world has known, and that criminals like Ivan the Terrible 
     ought to be prosecuted, we also recognize that justice 
     requires that only the guilty be punished. In the instant 
     case, it appears that Mr. Demjanjuk is not Ivan the Terrible 
     and it remains to be proven that he was a Nazi guard at all. 
     In any event, he has rights to due process under the U.S. 
     Constitution which must be respected. Moreover, an 
     ``international minimum standard'' on human rights has 
     emerged, 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.
       While readers of this commentary may be very familiar with 
     U.S. constitutional guarantees, they may be less aware of 
     international human rights standards, in particular those 
     norms that apply by virtue of U.S. ratification of 
     international treaties.
       The most important treaty in this field is the 
     International Covenant on Civil and Political Rights, which 
     the United States signed in 1977 during the Carter 
     administration and ratified in 1992 during the Bush 
     administration.
       Article VI 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.
       Although upon ratification in 1992 the U.S. introduced a 
     declaration that the provisions of the Covenant: ``are not 
     self-executing,'' this does not render the Covenant 
     meaningless or invite judges to disregard its provisions. It 
     means that the United States ought to adopt appropriate 
     legislation and ensure that inconsistent federal and state 
     laws are repealed, so that the U.S. will not be in violation 
     of its international obligations under the Covenant.
       Mr. Demjanjuk's 17-year ordeal, his detention, extradition 
     proceedings, surrender to Israel (also a party to the ICCPR 
     since 1992), trial in Israel, ``death row phenomenon'' (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.

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