[Congressional Record Volume 140, Number 76 (Thursday, June 16, 1994)]
[Extensions of Remarks]
[Page E]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


[Congressional Record: June 16, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                      EXCERPT OF DEMJANJUK ARTICLE

                                 ______


                      HON. JAMES A. TRAFICANT, JR.

                                of ohio

                    in the house of representatives

                        Wednesday, June 15, 1994

  Mr. TRAFICANT. Mr. Speaker, yesterday I submitted part of an article 
dealing with the case of John Demjanjuk, a retired Cleveland auto 
worker who was extradited and tried in Israel as Ivan the Terrible. The 
Israeli Supreme Court acquitted Demjanjuk and returned him to the 
United States. Below is the second part of this very important article 
written by Prof. Alfred de Zayas, a visiting professor of international 
law at the Depaul University College of Law in Chicago. He is also an 
expert on human rights who has published three books on the subject:

        I. United Nations Covenant on Civil and Political Rights


                        right to a fair hearing

       Article 14, paragraph 1, of the Covenant requires 
     fundamental fairness by the courts, impartiality and equality 
     of arms, Fairness also entails the requirement that a 
     proceeding be held within a reasonable time. Subjecting Mr. 
     Demjanjuk to a criminal proceeding more than 40 years after 
     the offences in question raises issues under this provision, 
     since it is extremely difficult for him--or for anyone in his 
     position--to properly represent himself, in view of his old 
     age and the near impossibility to obtain exculpatory 
     documents, witnesses, or even to remember the events under 
     investigation.
       Civil proceedings on his citizenship and on deportation 
     also present considerable problems because of the lapse of 
     time. Immigration records are notoriously incomplete and 
     ambiguous. Apparently there is no written record of Mr. 
     Demjanjuk's having been specifically asked the questions 
     ``Were you a Nazi camp guard?,'' or ``Did you engage in 
     racial or religious persecution?,'' and of his having given a 
     negative answer. Even if such record existed, it would still 
     have to be proven that he had lied. Now, bearing in mind that 
     he immigrated to the U.S. in 1952, in the middle of the cold 
     war and the McCarthy era, it is more probable that the 
     immigration officers only asked him whether he had ever been 
     a Communist or a member of the KGB. In any event, clear proof 
     that he lied to the immigration authorities would have to be 
     produced, and such proof would require a showing of intent, 
     i.e., that he understood a specific question and that he 
     deliberately gave false information. He cannot be penalized 
     for not understanding an ambiguous question or for not 
     volunteering information that was not asked. If the 
     immigration authorities did not pose the crucial question at 
     the time of immigration or at the time of naturalization, the 
     government is estopped from doing so now. In this connection, 
     the court must also consider that at the time of Mr. 
     Demjanjuk's immigration, he probably did not understand the 
     English language and that errors may have occurred in 
     translation. As the case may be, the burden of proof is on 
     the government.
       Article 14, paragraph 2, requires strict adherence to the 
     principle of the presumption of innocence, not only in all 
     criminal matters, but also in civil matters with penal 
     elements or consequences, such as denationalization 
     proceedings that may result in exile or forfeiture of an old 
     age pension.
       Article 14, paragraph 3, requires that an accused person be 
     tried without undue delay. Criminal proceedings in the 
     Demjanjuk case commenced 41 years after the alleged events; 
     appeal proceedings were concluded seven years later with his 
     acquittal. The objective problems in ensuring an effective 
     defense decades after the events are manifest. In this 
     context some may be tempted to invoke the 1968 Convention on 
     the Non-Applicability of Statutory Limitations to War Crimes 
     and Crimes Against Humanity. Yet, this Convention cannot 
     derogate from article 14, paragraph 3, of the Human Rights 
     Covenant. Moreover, neither the United States nor Israel are 
     parties to this Convention.


              right to liberty and security of the person

       With regard to Mr. 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. Article 9, paragraph 3, of the Covenant provides 
     that ``it shall not be the general rule that persons awaiting 
     trial shall be detained in custody, but release may be 
     subject to guarantees to appear for trial . . ., and should 
     occasion arise, for execution of the judgment.'' Accordingly, 
     the question must be examined whether Mr. Demjanjuk could 
     have been allowed to remain with his family, on bail, while 
     awaiting the criminal proceedings against him, unless there 
     was a showing that there was an imminent danger of his 
     fleeing the jurisdiction or of his tampering with evidence 
     against him (See Views of the United Nations Human Rights 
     Committee in case No. 238/1987, Bolanos v. Ecuador and in 
     case No. 305/1988, van Alphen v. The Netherlands). Moreover, 
     Mr. Demjanjuk was entitled to immediate release upon his 
     acquittal. Pursuant to the established jurisprudence of the 
     Human Rights Committee, the expert body established to 
     monitor compliance with the Covenant, Mr. Demjanjuk's 
     continued detention in Israel for eight weeks following 
     acquittal would appear to be in breach of article 9, 
     paragraph 1, because the prolonged detention could be seen as 
     arbitrary and thus amount to a violation of the right to 
     liberty and security of the person (Human Rights Committee, 
     Views in case No. 37/1979 Soriano de Bouton v. Uruguay, and 
     in case No. 33/1978 Buffo Carballal v. Uruguay). Since the 
     United States extradited Mr. Demjanjuk to another 
     jurisdiction, it bears responsibility for any violations of 
     his human rights in that jurisdiction.


                  prohibition of arbitrary deportation

       With regard to the issue of expulsion or deportation, 
     judges must take into consideration that under international 
     law a state cannot expel its own nationals. Similarly, the 
     United Nations Human Rights Committee has made clear in the 
     examination of states reports under the Covenant (inter alia 
     those of Burundi, Venezuela and Zaire) that states may not 
     expel their own nationals.
       As to aliens, article 13 of the Covenant imposes certain 
     conditions that must be satisfied before any deportation. It 
     would be incompatible with the object and purpose of the 
     Covenant for a state to attempt circumventing this 
     prohibition by simply denationalizing a person in order to 
     facilitate his expulsion as an alien.


                    right to return to one's country

       Article 12, paragraph 4, provides that ``no one shall be 
     arbitrarily deprived of the right to enter his own country.'' 
     If deported, Mr. Demjanjuk would be barred from reentering 
     the United States. Considering that Mr. 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 U.S.A. is ``his own country.'' Unlike 
     the 1950 European Convention for the Protection of Human 
     Rights and Fundamental Freedoms and the 1969 American 
     Convention on Human Rights (Pact of San Jose), both of which 
     grant the right of reentry only to citizens, the Covenant 
     uses the broader term ``his own country.'' An examination of 
     pronouncements by the Human Rights Committee, both in the 
     consideration of states reports and of cases submitted under 
     the Optional Protocol, reveals that ``his own country'' 
     should be interpreted broadly, so as to apply not only to 
     citizens but also to permanent residents.


                    Right to privacy and family life

       Article 17, paragraph 1, guarantees the right to privacy, 
     home and family life. The concept of family in international 
     human rights law includes not only the ''nuclear family'' but 
     also grown-up children and grandchildren. The deportation of 
     Mr. Demjanjuk would violate his right to family life, because 
     he would be separated from his entire family. In this context 
     the jurisprudence of the European Court of Human Rights 
     indicates that deportation of a person in Mr. Demjanjuk's 
     situation would entail a violation of article 8 of the 
     European Convention (see infra).
       Article 17, paragraph 2, stipulates that everyone has the 
     right to the protection of the law against unlawful attacks 
     on one's honour and reputation. Mr. Demjanjuk has endured 
     years of slander and libel as the purported Ivan the 
     Terrible. Now he is treated as if it had already been proven 
     that he was a Nazi guard, in violation of the presumption of 
     innocence.


                     Right to equality of treatment

       Article 26 requires equality before the law. Currently one 
     particular category of immigrants is being singled out for 
     denationalization and deportation: persons who served the 
     Nazi regime, whether voluntarily or through conscription. By 
     contrast, Japanese immigrants, some of whom fought against 
     the United States in World War II and who may have committed 
     war crimes or engaged in persecution against Koreans and 
     Chinese, are not being investigated or prosecuted. Neither 
     are other immigrants to the United States who may have 
     participated in persecution against racial or religious 
     minorities, including Russian KGB officers who may have been 
     involved in murders such as those at Katyn Forest in 1940. 
     Furthermore, the denial of social security old age benefits 
     only to the category of immigrants who wore German uniforms 
     discriminates against them. The arbitrary nature of some 
     denationalization and deportation proceedings is also 
     manifested by the fact that the target group is being 
     subjected to this treatment not because of proven conduct but 
     only because of their status.


             Prohibition of inhuman or degrading treatment

       Article 7 stipulates that ``no one shall be subjected to 
     torture or to cruel, inhuman or degrading treatment of 
     punishment.'' The nature of the proceedings against Mr. 
     Demjanjuk, the hostile atmosphere that accompanied the 
     extradition, the surrender for trial in Israel (which engages 
     the responsibility of the United States), the initial trial 
     in Israel, the demonstrations of jubliation following his 
     being sentenced to death in April 1988, the ensuing years of 
     uncertainty--commonly known as ``death row phenomenon'' 
     following the landmark judgment of the European Court of 
     Human Rights in the Soering v. United Kingdom case--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.


                         Right to Compensation

       If indeed Mr. Demjanjuk is not Ivan the Terrible, the 
     question arises whether he is entitled to compensate for 
     miscarriage of justice. It is surprising that hitherto both 
     the press and legal literature seem to ignore the fact that 
     Mr. Demjanjuk may have a justifiable claim for compensation; 
     and yet, this is an established right in international law. 
     Article 9, paragraph 5, of the International Covenant on 
     Civil and Political Rights provides that ``Anyone who has 
     been the victim of unlawful arrest or detention shall have an 
     enforceable right to compensation.'' Article 14, paragraph 6, 
     stipulates that ``When a person has by a final decision been 
     convicted of a criminal offence and when subsequently his 
     conviction has been reversed or he has been pardoned on the 
     ground that a new or newly discovered fact shows conclusively 
     that there has been a miscarriage of justice, the person who 
     has suffered punishment as a result of such conviction shall 
     be compensated according to law, unless it is proved that the 
     non-disclosure of the unknown fact in time is wholly or 
     partly attributable to him.'' The ``understanding'' appended 
     by the United States Senate on 2 April 1992 when given advice 
     and consent to the president on the ratification of the 
     Convenant provides: ``That the United States understands the 
     right to compensation referred to in Articles 9(5) and 14(6) 
     to require the provision of effective and enforceable 
     mechanisms by which a victim of an unlawful arrest or 
     detention or a miscarriage of justice may seek and, where 
     justified, obtain compensation from either the responsible 
     individual or the appropriate governmental entity. 
     Entitlement to compensation may be subject to the reasonable 
     requirements of domestic law.'' Thus, it cannot be excluded 
     that Mr. Demjanjuk, who was detained for many years as the 
     presumed Ivan the Terrible, and who has been found not to be 
     this person, may have a legitimate claim for compensation. 
     But it is doubtful whether Mr. Demjanjuk or his family want 
     any compensation. What they would probably prefer is an end 
     to the 17 years of litigation.

                          ____________________