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JULY 28, 1993
THE DEMJANJUK CASE
FACTUAL AND LEGAL DETAILS
The following pages present a review, outlining in broad strokes
the chain of events of what eventually became the legal case of the
State of Israel versus Ivan Demjanjuk.
The review presents the broader view of the history of the case
and has no pretensions to giving an exhaustive account of or even
encompassing the sea of factual and legal issues dealt with in the
past 15 years in various courts of law in the United States and
Israel.
CHAPTER ONE – THE DEMJANJUK CASE – U.S.A.
(1975 – 1986)
1. In October 1975, there came into the possession of certain members
of the U.S. Senate a list of Nazi war criminals living — so the
document alleged — in the U.S. The list gave the suspects’ names
and personal particulars, in most cases also stating what they had
done during World War II.
The information listed evidently emanated from material collated
in the Soviet Union, consisting of authentic German documents
captured by the Red Army when occupying territories under Nazi
control in the summer of 1944.
One of the names appearing on the list was that of John Ivan
Demjanjuk — a U.S. resident since 1951 and a citizen of
Cleveland, Ohio since 1958.
2. As listed, Demjanjuk (born April 3, 1920 in the Ukraine) was a
soldier in the Red Army who, falling into German captivity,
volunteered for service in the S.S, underwent training and
preparation at the S.S. training camp in the township of
Trawniki, Poland, where he served from March 1943 as an S.S.
Wachman at the Sobibor death camp, and later at the Floenbuerg
concentration camp. (‘S.S. Wachman’ was the Nazi code name for
the non-German S.S. hobnail-booted soldiers who aided the Germans
in exterminating the Jews throughout the war years. The Wachmans
actually fulfilled many functions in the process of realization of
the ‘final solution’: commencing with the physical expulsion of
Jews from their ghetto homes during ‘actions’, through packing
them into cattle-trucks at the ‘umschlagplatz’, escorting and
guarding them on the trains while shooting escapees, to mass
executions, in which victims were forced into gas chambers at the
death camps).
3. Nothing in U.S. statute provided for preferment of criminal
charges for war crimes against suspects of Demjanjuk’s kind. The
only way the State could take any legal action against him at all
was by conducting a trial, starting with the filing of a complaint
on grounds of obtaining citizenship on false pretenses, and ending
with stripping the defendant of his citizenship. The fraud
consisted of having concealed past actions that, had the
authorities known of in real time, would not have granted him an
entry visa to the United States, much less American citizenship.
Once he was denaturalized, the authorities had the option of
initiating deportation proceedings against the defendant (if he
did not preempt them by emigrating from the United States of his
own volition) and/or proceedings for extraditing him to another
country.
4. Once in possession of the list, some of the aforesaid senators
hastened to forward it to the legal instance in charge at that
time of filing lawsuits for the negation of citizenship (I.N.S.)
— a section in the U.S. Justice Department affiliated to the
Department of Immigration and Naturalization. After a while, an
analysis of the list was begun along with an initial research on
the data it presented.
5. The preliminary I.N.S study of the Demjanjuk case focused on his
immigration and naturalization dossier dating from the fifties.
Among the papers in this file were forms he had filled out,
applications he had submitted, and summations of interviews
conducted with him by U.S immigration officers in Germany, during
the years 1947-1951 when, as a displaced persons camp inmate, he
expressed the wish to immigrate to the United States.
The said examination revealed that in one of the more important of
these forms, dated March 4, 1948, where he was required to give
particulars of members of his family and describe his own doings
during the war, Demjanjuk himself warranted in writing that during
and before the war he was a ‘farmer in Poland in a settlement
called Sobibor’. (Demjanjuk signed his name to this form).
6. Cross-referencing between the information shown on the list
(deriving, it will be recalled, from the U.S.S.R.), whereby
Demjanjuk served with the S.S. as a Wachman at the Sobibor death
camp and Demjanjuk’s own entries on the form he had himself signed
in Germany, stating that he was in fact at a place called
‘Sobibor’ — eventually assumed great significance.
7. A. The investigative activities of the I.N.S. at that time
(1976), insofar as they related to nazi criminals, went on to
target other suspects named by the same list in connection with
incriminating information or indications of it. Thus for example,
they researched the past of another criminal, Fyodor Federenko —
who, the list alleged, had been an S.S. Wachman at the Treblinka
death camp in Poland, and later at the Stutthof concentration camp
(Poland).
B. As regards both Demjanjuk and Federenko, the I.N.S. decided
that apart from interrogating them and their families, an attempt
would be made to locate witnesses in various parts of the world
who might remember them and what they did during the war, in
addition to any possible documentary evidence yielding proof of
their crimes.
C. The I.N.S. investigative effort was directed, inter alia,
towards Israel. Operating in Israel at that time was a police
unit for the investigation of nazi crimes (INC), successor to the
’06 Bureau’ founded as part of the preparations for the trial of
Adolf Eichmann.
D. Since the Eichmann trial, INC had undertaken numerous
investigations — most of them pursuant to official applications
by investigatory authorities in various parts of the world.
Evidence collected by the unit in Israel served as proof of nazi
crimes in court cases conducted in various countries from time to
time.
E. On February 20, 1976, I.N.S. sent INC a memorandum naming
certain Ukrainians who were suspected of involvement in
persecution and acts of cruelty towards people during the war, in
the service of Nazi Germany. Ivan Demjanjuk and Fiodor Federenko
were named in the memorandum as having operated in the Sobibor
death camp (Demjanjuk) and Treblinka (Federenko). (This after
undergoing training at the S.S. training camp in Trawniki).
INC was asked to make an effort to ascertain whether available
witnesses such as eye witnesses, able to supply information on any
one of the suspects could be found in Israel.
F. Annexed to the memoranda were snapshots (of the passport
photograph variety) of the suspects. These were to be shown to
potential witnesses while being debriefed, and statements were to
be taken from them on the subject. The photographs were mostly
taken from immigration dossiers in the United States, proximity to
real time being two years to eight years after the event.
8. A. In 1976 the INC called in for questioning a number of Israeli
citizens listed as having been rescued from the inferno of
Treblinka or Sobibor.
B. Most of these citizens, survivors of Treblinka, summoned for
questioning due to the possibility of their having been acquainted
with and able to recognize the nazi criminal Federenko – pointed
in the course of their interrogation, when shown all of the
photographs or part of them, to the photograph of Demjanjuk as of
that of a Wachman they knew from Treblinka and remembered as
‘Ivan’ who operated the gas chambers there. (Some recalled that
this individual was known as ‘Ivan the Terrible’ because of his
notorious cruelty). Some on this occasion also identified the
photograph of Federenko whom they knew as a ranking Wachman in
Treblinka and of whom they also reported remembered details of his
crimes there.
C. A female INC interrogator (a lawyer by profession) who was
coordinating investigations concerning both Federenko and
Demjanjuk, responded with surprise to the identification of
Demjanjuk as a criminal from Treblinka. She did all she could to
suggest to the interrogees the possibility that they might be
mistaken, if only by reason of the fact that according to the
information in the I.N.S. memorandum, Demjanjuk was an S.S.
Wachman at the Sobibor camp; but to no avail. The interrogees
stuck to their spontaneous identification, insistently repeating
that this was a snapshot of ‘Ivan the Terrible’ of Treblinka.
D. All depositions taken from these interrogees, concerning both
Federenko and Demjanjuk, were forwarded that same year (1976) to
the I.N.S. for its consideration.
9. A. Denaturalization proceedings in the United States are
inherently civil proceedings and accordingly subject to civil
procedure laws and their derivative rules. In the course of these
proceedings an exchange of correspondence took place in the
Demjanjuk file, between them and the Court. Pleadings were
written, interrogatories were exchanged, discovery of documents
was instituted, depositions were taken in preliminary
interrogations, and thus thousands more pages accumulated in the
file before court hearings began.
B. In the summer of 1977, the I.N.S. instituted denaturalization
proceedings against Federenko and Demjanjuk — in respect of
crimes committed during by them during World War II, as S.S.
Wachmans. The action against Federenko was brought in Miami,
Florida, and that against Demjanjuk in Cleveland, Ohio.
C. Demjanjuk was cited as having concealed acts of murder and
abuse of thousands of persons at the Treblinka death camp (as
operator of th chambers) and at Sobibor (after having trained for
the job at the S.S. training camp at Trawniki); and consequently
of having fraudulently obtained U.S. citizenship.
10. A. Federenko’s trial commenced as early as 1978, ended in 1979
with his denaturalization (Federenko admitted to having been a
Wachman at Treblinka, thereby confirming the camp survivors’
identification of him. In his defense, however, he pleaded that
he had not brought to the ground a single hair of the heads of the
Jews at that camp, and that evidence against him was accordingly
untrue. The District Court upheld the defense pleadings,
dismissing the action against him; but on appeal, his defense was
set aside and he was stripped of his U.S. citizenship.
The commencement of Demjanjuk’s trial, by contrast, was long
delayed, and it was not until February 10, 1981 that the parties
and the court were satisfied that the case was ripe for evidence
to begin to be heard.
B. One of the reasons for the delay was that in 1979, after a
series of congressional debates, (initiated by congresswoman
Elizabeth Holtzman, a jurist) there was formed in the criminal
division of the U.S. Department of Justice, a body given the
title of ‘Office of Special Investigations’ (O.S.I.). The O.S.I.
was mandated to do just one job — to identify nazi criminals
living in the United States, to investigate them, collect evidence
against them, bring them to trial, strip them of their U.S.
citizenship and deport or extradite them. To do this job, the
O.S.I. assembled a team of jurists, attorneys-at-law, historians,
researchers and service personnel; and was allocated an initial
budget of U.S.$ 1.3 million.
C. With the creation of the O.S.I. (over the course of 1979) and
upon completion of its initial formation stages, the I.N.S.
transferred handling of the entire ‘nazi issue’ to the O.S.I.
D. The Demjanjuk investigation was then in full swing, and his
file was examined by the newly created O.S.I. Thus it was not
until February 1981 that the case crystallized and the Demjanjuk
trial commenced in Cleveland, Ohio.
13. Demjanjuk was stripped of his U.S. citizenship by Federal Court
Judge Frank Batisti of the northern district of Ohio, Cleveland,
on June 25, 1981. In a lengthy, reasoned decision, the judge
reviewed the historical background of relevant events, the
evidence advanced by the prosecution and the defense’s counter
pleadings, the evidence of the counsel for the defense and its
pleadings and the weight they carried, and reached the conclusion
that Demjanjuk had deceived the Court, that the version of the
witnesses for the prosecution was the truth, and that Demjanjuk
had obtained his citizenship under false pretenses, in as much as
he had concealed the fact of his service with the S.S. in
Treblinka and Trawniki. (The Court notes that since it had
established findings regarding Treblinka and Trawniki, which
sufficed for the defendant’s denaturalization, it had not gone
into the details of Demjanjuk’s service with the S.S. at the
Sobibor death camp).
14. A. Following Judge Batisti’s decision between the years
1981-1986 (when Demjanjuk was physically extradited to Israel),
various legal proceedings took place in the United States
concerning him.
B. Altogether, the various aspects of the subject were studied in
the United States before ten legal instances which heard
pleadings, reexamined evidence and studied factual and legal
aspects of the case. Time and again the Courts reached the
conclusion that Demjanjuk was a nazi war criminal against whom
there existed evidence founded on crimes committed by him in the
service of the S.S. in general and in the Treblinka camp in
particular. It was accordingly decided that his denaturalization
was just and his deportation and extradition to Israel based on
solid evidence.
15. A. On February 26, 1986, Demjanjuk was brought to Israel
accompanied by two U.S. government Marshals. This concluded a
five-year chapter that had commenced with contacts between the
U.S. government and Israel on the issue of the extradition of
nazi criminals living in the United States and ended with
Demjanjuk’s extradition.
CHAPTER TWO – THE TRIAL
(1986 – 1988)
1. Demjanjuk’s trial before the special tribunal (Supreme Court Judge
Dov Levin, and Jerusalem District Court Judges Zvi Tal and Dahlia
Dorner) was opened with the reading out session on November 26,
1986. For practical purposes, the hearings commenced only on
February 16, 1987 and this primarily in response by the Court to
applications for postponement filed by the defense, to enable it
to prepare properly for the trial.
2. Demjanjuk was represented by Advocates Mark O’Connor and John Gil
(U.S.A.) who were authorized by the Minister of Justice to
represent him in Israel, and by the Israeli lawyer, Yoram Sheftel.
At a later stage of the trial, the defense was joined by Adv.
Paul Chumak (Canada). (Adv. O’Connor was dismissed toward the
end of the hearing of the evidence for the prosecution and before
the hearing of the evidence for the defense began).
3. A. The entire trial took place in the Binyanei Ha’uma, Jerusalem,
where an appropriate infrastructure was set up, which would meet
the complex needs of the conduct of this trial. In fact,
everything involved in the conduct of the trial was assembled in
one building: the courtroom, the judges’ chambers, Demjanjuk’s
detention room where he also met with his attorneys, the offices
of the prosecution and the defense, the interpreters’ offices and
translation rooms. Offices in which the recorded minutes could be
taken down and typed simultaneously in Hebrew and in English.
Offices for the security and guard services, telephone and
facsimile services, and communication services for the general
public and the press and more.
B. One of the considerations that tipped the balance in favor of
exposing the entire course of the trial to the public in Israel
and the rest of the world was the loudly voiced complaints as to
the inability of the judiciary system in Israel to conduct a trial
properly against one suspected of nazi crimes, since this was the
‘victims’ state’. The accessibility of the judiciary hearings as
stated enabled anyone who wished to follow the course of the
trial.
C. Another important reason adduced as to why the trial should be
held in the Binyanei Ha’uma, was the unprecedented interest of the
media and the general public at home and abroad in this trial.
This interest led the parties concerned to conclude that the ‘open
court’ principle would be duly put into practice at this trial,
only if everyone who so wished could be part of the public in
attendance in the courtroom or could watch the proceedings through
the media.
4. A. The general framework of the conduct of the case in Israel was
dictated in practice long before Demjanjuk was brought to trial.
This by the very fact that the State of Israel’s application for
extradition was based on the testimony of the identification
witnesses from Treblinka as given to INC as early as 1976 and 1979
and as confirmed either in evidence (in the United States) or in
depositions (in Israel) in the years that followed. It thus
appeared that the fulcrum of this case would stabilize around
Demjanjuk’s crimes at Treblinka and the evidence proving those
deeds of his would rest on the testimony of the identification
witnesses, as described. In practise, the case proceeded along
three channels of evidence, whose accumulation was intended to
prove (the acts) imputed to Demjanjuk in the indictment:
membership in the S.S., training at the camp at Trawniki, crimes
at the Treblinka death camp as operator of the gas chambers there
and at the Sobibor death camp.
B. The defense claimed all along that Demjanjuk had fallen into
German captivity where he remained throughout the war, that he
never volunteered to serve with the S.S. and that he was
therefore not a member of the killing team at the camps of
Treblinka and Sobibor or an operator of the gas chambers — as
alleged in the indictment.
5. A. The court sittings were held continuously — morning and
afternoon on Mondays, Tuesdays, Wednesdays and Thursdays.
B. The inaugural session, on February 16, 1987, was dedicated to
the hearing of all questions relating to the competence of the
State of Israel to judge Demjanjuk (general competence and
specific competence in light of the laws of Israel and the United
States and the inter- state treaty), written summations were
presented (including pleadings, appendices and judgments) and oral
pleadings were heard. After the Court had given its decision
whereby the indictment and the offenses imputed to Demjanjuk were
consistent with the wording of the extradition treaty and the
intention of the U.S. authorities and that the Court was
competent to judge him, the opening arguments of the prosecution
were heard and the recital of the evidence for the prosecution
began.
6. Its first twenty-one sessions (February 1 through March 20, 1987)
were dedicated to the issue of Demjanjuk’s crimes at the Treblinka
death camp. The prosecution also put on the witness stand those
survivors of Treblinka who had pointed to the photograph of
Demjanjuk as the man they remembered as operating the gas chambers
at the camp. Likewise, written evidence was submitted and the
testimony was heard of the police interrogators who had conducted
the investigation in which the aforesaid identification was made
back in 1976.
7. The months April to July 1987 were devoted to the hearing of
testimony and the submission of evidence on the other two central
issues:
A. Proof of Demjanjuk’s being an S.S. man who had volunteered to
serve at Trawniki and Sobibor.
B. Refutation of the alibi alleged by Demjanjuk.
8. As to Demjanjuk’s enlisting in the S.S., his preparation and
training at Trawninki and his service as a member of the killing
team at the Sobibor camp — the ‘Trawniki certificate’ constituted
a central axis of evidence. The ‘Trawniki certificate’ is an
original nazi certificate of Demjanjuk’s containing his portrait
photograph, his personal particulars, his S.S. service number
(1393) and a record of his being posted to two places where he
served during the war period — Okshov and the Sobibor death camp.
The certificate was sent to Israel from the U.S.S.R., having been
located there in an archives in which were kept nazi documents
captured by the Red Army in the summer of 1944 and thereafter.
Contrary to the approach which governed the proceedings in the
United States, the certificate was perceived by the Prosecution in
Israel as a most important piece of evidence in proving
Demjanjuk’s guilt from both the factual and the legal point of
view.
First, the prosecution was of the opinion that this was
preponderant unambiguous evidence of Demjanjuk’s being an S.S.
soldier, who underwent training and preparation at the S.S. camp
at Trawninki, which is to say that it determines his general
status. Not an innocent man as he pleaded but a nazi criminal of
the worst kind.
Second, the certificate enables the determination to be made that
Demjanjuk was one of a limited number of Wachmans chosen to serve
as murderers at the death camps — particularly Sobibor on March
27, 1943. Out of several million Russian prisoners of war, held
at the POW camps of nazi Germany, only about 5,000 volunteered to
serve the S.S. in various capacities. Of these, serving at camps
whose sole purpose was nothing but killing (as distinct from
concentration camps or forced labor camps) — about 500 Wachmans
only. This determination has a direct bearing on Demjanjuk’s
crimes. And indirectly the Prosecution alleged, it also placed
him nearer Treblinka. A not less important incidental result was
the absolute refutation of the alibi plea based on the
certificate, since it was not possible to be a POW in detention,
and an S.S. man holding such a certificate at one and the same
time.
This view of matters prompted the prosecution to invest great
efforts, so that the proof of the veracity of the certificate,
with all that that implied, would be completely unbreachable.
What made the point even sharper was the fact that since the case
began to be conducted in the United states and all along the way
the main plea of the defense was that the certificate was a KGB
forgery, that no such certificates were ever issued to Wachmans,
and that this one had been created from scratch and sent to the
United States in order to incriminate Demjanjuk in the eyes of the
U.S. authorities.
Accordingly the need to prove the bona fides of the document from
every possible aspect led the prosecution to present in court
three sets of evidence on the subject.
– An historical set: which was analysed with the aid of experts
from Germany having a perspective and historical expertise on the
one hand and German witnesses having served with the S.S. at
Trawniki in the relevant years on the other hand — everything
written on the certificate, including stamps, signtures, ranks
etc., so as to prove that they were consistent with the facts as
they had actually been in real time.
– A forensic set: proved with the aid of local and foreign experts
the authenticity of each element found on the certificate and
which was verifiable: either by analyzing the document and the
signatures and examining them by way of document comparison, or by
chemical and other analyses of the paper on which the certificate
was written, fountain pen ink, typewriter ribbon ink, the ink of
the stamps on the certificate, the printed lettering, the typed
lettering, the photographic paper of Demjanjuk’s photograph on the
certificate, glue and other stains on it, marks of attrition,
grooves, creases, perforations etc.
– Attributing the certificate to Demjanjuk: an application to
prove that writing and entries on the certificate correspond to
his personal particulars, including a comparative anthropological
analysis of his facial features, as appearing on the passport
photograph thereon — with other known passport photographs of
Demjanjuk’s.
Also testifying was a Prison Service physician Dr. Zigelbaum, as
regards two important medical details: the location of a scar on
Demjanjuk’s back — a detail appearing in the German entries on
the Trawniki certificate as a special identifying mark of the
bearer of the certificate and thereby imparting to the certificate
yet another touch of authenticity. A scar was likewise found
under Demjanjuk’s left armpit — remaining from the S.S. tattoo
that existed there in the past, and which was removed by Demjanjuk
after the war, by reason of being so incriminating.
9. To the matter of the alibi: Apart from the need to prove that
Demjanjuk lied in his contradictory versions regarding his alibi,
expert witnesses were called to prove the implausibility of his
version under the conditions and circumstances he described, in
view of the knowhow existing from an historic point of view. Here
numerous documents submitted in evidence were combined with the
testimony of expert witnesses being military historians and
researchers specializing in the matters under review.
(Continued in Part 2: demjanjuk.s1-2)
Newsgroups: alt.revisionism
Subject: Demjanjuk Case – Factual and Legal Details (Part 1 of 2)
Summary:
Followup-To: alt.revisionism
Organization: The Nizkor Project, Vancouver Island, CANADA
Keywords: Sobibor,Treblinka,Demjanjuk
Last-Modified: 1994/01/07
