[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]

 
              ARTICLE BY PROF. ALFRED de ZAYAS, J.D., Ph.D

                                 ______


                      HON. JAMES A. TRAFICANT, JR.

                                of ohio

                    in the house of representatives

                        Thursday, June 16, 1994

  Mr. TRAFICANT. Mr. Speaker, today I submit for the Record the final 
installment of the article by noted human rights author and scholar 
Alfred de Zayas. The article concludes that the rights of John 
Demjanjuk may have been trampled by the Justice Department's Office of 
Special Investigation.
  I urge all Members of Congress to read the complete text of the 
article, printed over the last 3 days. If any Members have any 
questions about the case of John Demjanjuk, I am always available to 
discuss this matter.

              Article By Prof. Alfred de Zayas, J.D., Ph.D


                 Universal Declaration of Human Rights

       Another international standard that we should take into 
     account is the 1948 Universal Declaration of Human Rights. 
     Indeed, 45 years after its adoption by the U.N. General 
     Assembly, thanks to the leadership of Mrs. Eleanor Roosevelt, 
     chairperson of the U.N. Commission on Human Rights 1946-51, 
     many legal experts consider it to have become customary 
     international law.
       Even though the Universal Declaration is not a ``treaty'' 
     for purposes of Article VI of the United States Constitution, 
     the United States is bound by the United Nations Charter, 
     which in the preamble, articles 1, 55 and 56 oblige it to 
     promote and protect human rights. Moreover, the preamble of 
     the International Covenant on Civil and Political rights 
     comes close to incorporating it by reference.
       Admittedly, customary international law is not mentioned in 
     the U.S. Constitution, but the U.S. Supreme Court has ruled 
     that it is ``part of our law, and must be ascertained and 
     administered by the courts of justice of appropriate 
     jurisdiction, as often as questions of right depending upon 
     it are duly presented for their determination.
       An examination of the facts in the Demjanjuk case reveals 
     that the following provisions of the Declaration may have 
     been breached, or may be in risk of being violated:
       Article 9, which prohibits exile.
       Article 15, which stipulates that everyone has the right to 
     a nationality, and that no one shall be arbitrarily deprived 
     of his nationality. Indeed, the denial of German nationality 
     to German Jews during the 1930's was rightly condemned at 
     Nuremberg. Moreover, there is a strong trend in 
     international law to prevent statelessness. The 
     denationalization of Mr. Demjanjuk would render him 
     stateless. The U.N. Convention on the Reduction of 
     Statelessness prohibits such denationalization. Even if 
     the United States is not a party to this Convention, 
     customary international law is developing in the direction 
     of preventing statelessness, whenever possible.
       Article 17, which affirms the right to property. Denial of 
     social security old age benefits--a mandatory consequence of 
     deportation--would constitute an arbitrary deprivation of 
     property.
       Article 22, which provides for the right to social 
     security. The denial of social security benefits constitutes 
     a particularly offensive violation of human rights when the 
     victim has a contractual claim by virtue of his contributions 
     over a period of decades.


                       Regional International law

       International human rights law has similarly evolved in the 
     regional level, notably in Europe under the European 
     Convention on Human Rights, and the Americas under the 
     American Convention on Human Rights.
       While the United States has not ratified the American 
     Convention on Human Rights, it did sign the American 
     Declaration of the Rights and Duties of Man. The proceedings 
     against Mr. Demjanjuk raise issues under the Declaration, in 
     particular: under Art. 2, which guarantees the right to 
     equality before the law; Art. 5, which guarantees the right 
     to protection of honor, personal reputation and private and 
     family life; Art. 6, which guarantees the right to a family 
     and to the protection thereof; Art. 16, which guarantees the 
     right to social security; Art. 18, which guarantees the right 
     to a fair trial; Art. 19 which guarantees the right to a 
     nationality; Art. 23, which guarantees the right to property; 
     and Art. 26, which stipulates the presumption of innocence, 
     due process of law, protection from cruel, infamous or 
     unusual punishment. Violations of these provisions can be 
     invoked before the Inter-American Commission on Human Rights 
     in Washington, which has a procedure of international 
     investigation and settlement.
       European human rights law and practice further strengthen 
     the above analysis, particularly with respect to the issues 
     of denationalization and deportation. Article 3 of Protocol 4 
     to the European Convention on Human Rights stipulates that 
     ``No one shall be expelled . . . from the territory of the 
     State of which he is a national.'' This provision cannot be 
     circumvented by expatriating the person concerned.
       The jurisprudence of the European Commission and Court of 
     Human Rights and of the Inter-American Commission and Court 
     of Human Rights have further restricted the powers of states 
     to deport aliens. In the landmark Berrehab judgment, the 
     European Court found that the Netherlands had violated 
     article 8 of the European Convention by separating a Moroccan 
     father from this daughter, when it refused to extend his visa 
     and expelled him to Morocco. More recently, in the Beldjoudi 
     v. France judgment, the court found that, notwithstanding Mr. 
     Beldjoudi's criminal record, his deportation to Algeria would 
     constitute a violation of article 8, because his family life 
     with his French wife would be disrupted. In the light of 
     this jurisprudence, it can be said without fear of 
     contradiction that the deportation of a person like Mr. 
     Demjanjuk could not take place in a European country, 
     party to the European Convention on Human Rights, e.g., 
     the United Kingdom or France.


                               Conclusion

       In the light of the above, it is clear that United States 
     obligations under international law, notably under the 
     International Covenant on Civil and Political Rights, require 
     the respect of Mr. Demjanjuk's rights to presumption of 
     innocence, to family life, to honor and reputation. His 
     denationalization and deportation would contravene binding 
     provisions of international human rights law.
       In the light of the November 17, 1993, judgment of the 
     Federal Circuit Court of Appeals for the Sixth Circuit, it 
     appears that Mr. Demjanjuk may have a justiciable claim to 
     compensation for miscarriage of justice, since the court 
     found that the attorneys for the O.S.I. had committed ``fraud 
     on the court.''
       It would be regrettable if the United States, which 
     traditionally has been at the vanguard of human rights, were 
     to be perceived in the world as not adhering to the 
     ``international minimum standard'' with regard to the human 
     rights of Mr. Demjanjuk.

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