THE DEMJANJUK APPEAL
SUMMARY BY ASHER FELIX LANDAU
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.
The appellant, the Court continued, had pleaded an alibi both in regard
to the period during which he was alleged to have been in Treblinka, and
also after the extermination camps at Treblinka, Sobibor, and Belz had
ceased to function. After dealing with the legal aspects of the defence
of an alibi, and a close examination of the evidence relating to both
these periods, the Court agreed with the District Court that the alibi
relating to the relevant period (1942-1943) had had been completely
rebutted while - in view of evidence received after the trial - the
rebuttal in regard to the period after 1944 was not complete.
The Court then turned to the question of the identification of the
appellant as having served in Treblinka, and his activities there.
Citing numerous authorities, it dealt first with the general principles
applicable relating, inter alia, to the identification of a suspect on
the basis of photographs. It then examined, in great detail, the
evidence of the eye-witnesses who had testified before the District
Court, or whose statements had been admitted as evidence. In regard to
the statements, it also reviewed the procedures which had been followed
to meet the demands of section 15 of the Nazi Punishments Law which, as
stated above, empowers 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'.
After a searching analysis of the evidence of all the witnesses relating
to the appellant's identity, and of defense counsels' arguments, the
court found no basis for interfering with the District Court's findings
based on that testimony. The Court dealt extensively, inter alia, with
the professional literature relating to evidence of identification after
many years, including the opinion that lapse of time does not, in
itself, preclude identification.
The Court also pointed out that the District Court, in admitting
depositions under section 15 above, had only deviated from the rules of
evidence in admitting the depositions of witnesses who had died in the
period between their examination and the trial, and only after those who
had taken the depositions had given evidence and were available for
cross-examination by the defense.
Before considering the additional evidence adduced after the appeal had
been lodged, the Court rejected the criticisms of appellant's counsel of
the manner in which the District Court had discharged its task.
The Court then turned to consider the additional evidence admitted at
the stage of appeal. This evidence consisted of written depositions,
relating to different periods, given in the U.S.S.R. by 'Wachmaner' who
were examined in regard to their own crimes, and some of whom were
sentenced to death. Their testimony related to Treblinka, where they
served, and not a few of them mentioned a Ukrainian 'Wachman' called
Ivan Marchenko as the person who operated the machines of the gas
chambers in that camp.
In weighing the additional evidence, the court first dealt with the
necessity of proof of the defendant's guilt 'beyond a reasonable doubt'.
The authorities made it clear that the prosecution was not required to
provide proof 'beyond all doubt'. Some lingering or fanciful doubt was
not sufficient to justify an acquittal of the defendant. On the other
hand, it had been said that the degree of proof 'need not reach
certainty, but it must carry a high degree of probability'.
The Court explained that the expression 'reasonable doubt' was to be
interpreted rationally. The evidence should be consistent, but if there
were contradictions, the Court was entitled to decide what evidence it
was prepared to accept. However, there had to be a reasonable basis for
rejecting evidence as untrustworthy.
The Court then analyzed in detail the additional evidence, citing also
the opinions of experts on identification. It was true that the direct
additional evidence consisted only of depositions taken in the U.S.S.R.,
without the testimony of those who had taken them. The number of these
depositions, however, created a reasonable doubt which could not be
dispelled by speculation and surmise.
After the most careful consideration the Court had reached the
conclusion that the evidence now before it created a reasonable
possibility that the appellant was not the person called 'Ivan the
Terrible' who operated the gas chambers at Treblinka. That was the crime
with which he was charged in the indictment, and on that charge he was
entitled to be acquitted.
On the other hand, the evidence before the District Court and the
additional evidence showed that the appellant had served as an S.S.
'Wachman' in the Trawniki Unit, and one deposition (of a 'Wachman'
called Danilchenko) described in detail the appellant's service in
Sobibor. This deponent had also identified the appellant in three
photographic 'identification parades', containing three different
photographs of the appellant. Danilchenko died before the appellant's
trial had begun.
Under section 216 of the Criminal Procedure Law (Consolidated Version)
of 1982, the Court continued, the court may convict the defendant of an
offence of which he is shown to be guilty by the facts proved before it
even though those facts are not alleged in the indictment, provided the
defendant has been given a reasonable opportunity to defend himself.
The facts proved the appellant's participation in the extermination
process, the Court noted, and could perhaps sustain his conviction of
other offenses under the Nazi Punishment Law. The application of section
216, moreover, could also require a reconsideration of the 'principle of
specialty' in regard to such offenses.
In view, however, of the circumstances now existing, the Court had
decided not to apply section 216 in the present case. Affording the
appellant 'a reasonable opportunity' to defend himself now meant an
additional extension of the hearings beyond an acceptable limit. Even
taking into account the nature and extreme gravity of any charge or
charges which could now be preferred against the appellant, a change in
the basis of the extradition, more than seven years after the
proceedings against the appellant were opened, would be unreasonable.
The right of defense in a criminal trial was of the greatest importance,
and was not to be sacrificed whatever were the reasons for the delays in
the proceedings against the appellant.
The final result, therefore, was the acquittal of the appellant, on the
basis of a reasonable doubt, Of the offence attributed to him in the
indictment.
The question of the 'principle of specialty', within the framework of
extradition proceedings, therefore fell away.
In conclusion, the Court reiterated that, more than seven years ago,
Ivan Demjanjuk had been lawfully extradited from the United States to
Israel. The extradition was based on prima facie evidence. There was
testimony before both the District and the Supreme Courts that the
appellant was a member of the 'S.S. Wachman Unit' of Trawniki, which was
established for the sole purpose of learning and teaching its members to
destroy, kill, and exterminate, in implementing the 'final solution' of
the 'Jewish problem'.
There was also evidence that after the appellant received his 'Trawniki
Certificate', he was posted to Sobibor, one of three extermination camps
established by the German authorities of the Third Reich within the
framework of the 'Reinhardt Operation'. It was also shown that he served
with the S.S. in the Flossenberg and Regensburg concentration camps. The
appellant was therefore a member of a group of 'S.S. Wachmaner' whose
purpose was murder and whose objective was genocide, and whose like is
unknown in the history of humanity.
The thrust of the indictment against the appellant was his identity as
'Ivan the Terrible', who operated the gas chambers in the Treblinka
extermination camp. A number of survivors of the hell of Treblinka
identified the appellant as 'Ivan the Terrible', one of the main
murderers and persecutors Of the Jews who were brought to Treblinka on
their way to suffocation in the gas chambers, and for this he was
convicted in the District Court.
After the hearing of argument in the appeal, the Court admitted the
statements of a number of in which some person other than the appellant
was referred to as Ivan the Terrible of Treblinka. The court did not
know the origin or authorship of these statements, but admitted them as
evidence without formal proof of their authenticity. These statements
raised reasonable doubts as to the identity of the appellant as Ivan the
Terrible of Treblinka, and deterred the Court from convicting him on
this charge.
In the result, the 'Wachman' Ivan Demjanjuk is acquitted, by reason of
doubt, of the outrageous crimes attributed to Ivan the Terrible of
Treblinka. Judges, who are only human, cannot reach perfection, and it
is only right that they judge on the basis of what is placed before
them, and on that basis alone.