Jerusalem, July 29, 1993
In the Supreme Court, sitting as a Court of Criminal Appeals, before the President, Justice Meir Shamgar; the Deputy-President, Justice Menahem Elon; and Justices Aharon Barak, Eliezer Goldberg, and Ya'acov Maltz, in the matter of Ivan (John) Demjanjuk, appellant, versus the State of Israel, respondent (Cr.A. 347/88).
The appellant, who was extradited to Israel from the United States in February 1986, was convicted on April 18, 1988, in the District Court of Jerusalem, of crimes against the Jewish People under section 1(a)(1) of the Nazi and Nazi Collaborators (Punishment) Law of 1950; crimes against humanity under Section l(a)(2) of the said Law; war crimes under section l(a)(3) of that Law; and crimes against persecuted people under section 2(1) of that Law, together with section 300 of the Penal law of 1977. He was sentenced to death and he appealed, both against the conviction and sentence, to the Supreme Court.
The indictment against the appellant recited in some detail the origin and development of the 'Final Solution of the Jewish Problem', including what is known as 'Operation Reinhardt', devised by the Nazi regime in Germany, and the acts of the appellant in the course of that operation.
'Operation Reinhardt' followed the organized massacres by bands of murderers (Einsatzgruppen) which roamed through the East, concentrated groups of Jews, and shot them. It was aimed at expediting and improving the extermination process by rounding up Jews and conveying them to death camps to be killed in gas chambers. It included guarding the victims on their way to, and in, the camps, and their removal from the railway trucks. It also covered mobilization of forced Jewish slave-laborers driven by threats, violence, and murder, who collected their clothes and valuables, cut their hair, and also tore out teeth from the corpses which they conveyed for burial and later for cremation
More specifically, the appellant was alleged to have served as an S.S. 'Wachman', and to have perpetrated unspeakable acts of cruelty in conducting victims in the Treblinka concentration camp on the way to their death and to have operated, with his own hands, the engines which pumped the poisonous exhaust fumes into the gas chambers, thus causing the death of hundreds of thousands of people killed in this manner.
It was also alleged that the appellant, because of his cruelty, was called by the prisoners in Treblinka 'Ivan Grozny' ('Ivan the Terrible'), and that he was widely known and recognized by that name.
The appellant did not deny that the cruel acts alleged in the indictment had been committed, but he did deny that he had ever been at Treblinka, or that he was 'Ivan the Terrible' who had served there. The District Court, however, found that his identity had been established, and that he had indeed committed the acts attributed to him.
The Supreme Court, in its judgment, first related the background to the extermination of the Jews in Poland, and then described in detail the Treblinka death camp and the atrocities committed there, the part played by 'Ivan the Terrible' in those atrocities, and his criminal responsibility for his actions under the sections of the Law cited in the indictment.
The Court then referred to the postponements of the hearing of the appeal following the death of the late Advocate Dov Eitan, who was to have appeared with Advocate Sheftel in the appeal, and following an injury to Advocate Sheftel as a result of acid being thrown in his face.
Moreover, prior to the beginning of counsels' arguments on May 14, 1989. and subsequent thereto, numerous applications were submitted - mostly by defense counsel - for the admission of new evidence, and also for the hearing of evidence on commission. Pointing out that section 15 of the Nazi Punishment Law permitted the court 'to deviate from the rules of evidence if it is satisfied that this will promote the ascertainment of the truth and the just handling of the case', and recalling the warning of the Supreme Court in the Eichmann case that that power should be exercised only where the new evidence would be of importance and could not have reasonably been brought before the trial court, the Court had admitted further evidence relevant, inter alia, to the identification of the appellant as 'Ivan the Terrible'. After all the delays the hearing of the appeal, including counsels' further arguments, eventually concluded on June 9, 1992.
Counsel had submitted, the Court continued, that the appellant could not be tried for crimes under the Nazi Punishment Law since he had been extradited to stand trial on charges of murder while the indictment referred to the Nazi and Nazi Collaborators (Punishment) Law. Counsel had relied, in this regard, on 'the principle of specialty', embodied in sections 17 and 24 of the Extradition Law of 1954 under which, in short, an extradited person may not be tried in the country requesting the extradition for offenses other than those for which the extradition was requested and granted, save with the consent of the extraditing country or of the wanted person himself.
After citing numerous precedents and legal texts, and a far-ranging analysis of the comparison between the crimes imputed to the appellant and the crime of murder, the Court upheld the District Court's decision that the principle of specialty had not been infringed in the present case.
A central feature relied upon by the court in this context was the awareness of the American courts which dealt with the appellant's extradition of the crimes for which he would be tried in Israel, and the relevant sections of the Israeli statute which would be invoked. Judge Battisti, in the court of first instance, said that 'Respondent's argument that one who kills an individual is extraditable but one who kills many is not extraditable ... leads to an absurdity'. Moreover, the American court said, on appeal, that '...the particular acts of murder for which he (the appellant) may be tried depend upon Israeli law. Israel may try him under the provisions of the Nazi and Nazi Collaborators (Punishment) Law for 'crimes against the Jewish People' ('Killing Jews', a species of murder), 'crimes against humanity ('murder ... of civilian population') and 'war crimes' ('murder of civilian population of or in occupied territory'). The principle of specialty does not impose any limitation on the particulars of the charge so long as it encompasses only the offence for which extradition was granted'.
Turning to the evidence of the appellant's identification as having served in Treblinka and having personally operated the gas machines there, the Court then dealt with the 'Trawniki Certificate', which occupied a central place in the trial.
Trawniki was the site of a training camp for Russian prisoners of war who had volunteered to act as guards - Wachmaner - in assisting the Germans in 'Operation Reinhardt'. The appellant, as a member of the Trawniki Unit, was issued with a service certificate (Dienstausweis) as an 'S.S. Wachman', which included his photograph and stated his personal particulars (including the place and date of his birth). The defense contended that no such certificates had been issued, and that the certificate relied upon by the prosecution was a forgery of the K.G.B. However, it was established by experts that the certificate was authentic, and the production of similar certificates disproved the contention that the 'Trawniki Certificate' was an isolated forgery.
Moreover, the additional evidence received in the appeal (which is dealt with later in this summary), includes a 'posting order' and 'orders of the day' in which the appellant's personal number, as stated in the 'Trawniki Certificate', is mentioned, and in one of which his date and place of birth are recorded.
After considering, inter alia, the admissibility and weight of the certificate as a 'public document' or an 'old document' under sections 29 and 43 of the Evidence Ordinance (New Version) of 1971, the evidence of the experts, the appellant's own references to the certificate, and the right of the court to rely on its own examination of the document, the Court accepted the finding that the certificate was authentic, and proved the appellant's participation in the extermination program - a finding supported also by other evidence. However, it also agreed with the District Court that the mention in the document of camps other than Treblinka in which the appellant had served while Treblinka was not mentioned at all, did not prove the appellant's denial that he had served there, but was to be taken into account on this vital point.
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