Matter of Demjanjuk

Decision Date08 March 1985
Docket NumberMisc. No. 83-349.
Citation603 F. Supp. 1468
PartiesIn the Matter of the Extradition of John DEMJANJUK, A.K.A. John Ivan Demjanjuk, A.K.A. John Ivan Demyanyuk.
CourtU.S. District Court — Northern District of Ohio

Gary D. Arbeznik, Asst. U.S. Atty., Cleveland, Ohio, Murray R. Stein, Alvin D. Lodish, Michael Wolfe, Bruce Einhorn, U.S. Dept. of Justice, Washington, D.C., for petitioner.

Mark O'Connor, Buffalo, N.Y., John J. Gill, Cleveland, Ohio, for respondent.

Steven M. Schneebaum, Patton, Boggs & Blow, Washington, D.C., amicus curiae.

BATTISTI, Chief Judge.

On November 18, 1983 the United States Attorney for the Northern District of Ohio, acting for and in behalf of the government of Israel, filed a complaint requesting that this Court conduct a hearing to determine whether John Demjanjuk is extraditable to Israel, pursuant to the 1963 Extradition Treaty between the United States and Israel, T.I.A.S. 5476, 14 U.S.T. 1717. On December 17, 1984 oral argument in this matter was heard. One question addressed was "whether a United States civilian court has subject-matter jurisdiction in an extradition proceeding where the crimes alleged occurred during wartime or whether only a properly constituted military tribunal has jurisdiction over alleged war crimes?" See Order of December 6, 1984 at 4. 603 F.Supp. 1463, 1465.

Essentially, respondent argues that because he was a prisoner of war and a soldier and the crimes with which he is charged occurred during wartime, under international law and the United States Constitution, only a military tribunal may extradite him.1 In re Extradition of John Demjanjuk, Transcript of December 17, 1984 Proceeding at 17, 20, 21-22, 23.

International law, the United States Constitution, federal statutes and prior judicial decisions do not support respondent's arguments. See, e.g., Agreement by the Government of the United States of America, the Provisional Government of the French Republic, the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Union of Soviet Socialist Republics for the Prosecution and Punishment of the Major War Criminals of the European Axis (London Agreement) arts. 4, 6, 59 Stat. 1544, E.A.S. No. 472 (August 8, 1945); United Nations Convention on the Prevention and Punishment of the Crime of Genocide art. 6, 78 U.N.T.S. 277 (opened for signature December 9, 1948); In re Ryan, 360 F.Supp. 270 (E.D.N.Y.1973), aff'd, 478 F.2d 1397 (2d Cir.1977); United States v. Canella, 63 F.Supp. 377 (S.D.Cal.1945). This Court, therefore, does have subject matter jurisdiction, pursuant to 18 U.S.C. § 3184, to conduct the instant extradition hearing.

In order to preserve the integrity of these proceedings and to remain responsive to respondent's concerns, the reasons for this ruling will be fully detailed in a forthcoming opinion. This Order has been entered today to give the parties as much time as possible to prepare for the § 3184 hearing.

The parties shall appear for respondent's extradition hearing on March 12, 1985 at 10 a.m.

IT IS SO ORDERED.

ON PARAMETERS OF EXTRADITION HEARING

On February 21, 1985 this Court held that it does have subject matter jurisdiction to hear and decide the instant extradition proceeding filed by the Petitioner United States of America hereinafter referred to as the "Government", acting for and in behalf of the government of Israel. Order of February 21, 1985 at 2. In accordance with statements made during the February 9, 1984 Conference in this action, this Order will set forth parameters of the extradition hearing scheduled for March 12, 1985. Transcript of February 9, 1984 Proceeding at 37.

I.

Title 18 U.S.C. § 3184 provides, in relevant part, that an extradition magistrate, acting pursuant to an extradition treaty or convention, may:

... upon complaint made under oath, charging any person found within his jurisdiction, with having committed within the jurisdiction of any such foreign government any of the crimes provided for by such treaty or convention, issue his warrant for the apprehension of the person so charged, that he may be brought before such justice, judge, or magistrate, to the end that the evidence of criminality may be heard and considered. If, on such hearing, he deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, he shall certify the same together with a copy of all the testimony taken before him, to the Secretary of State, ...

In an earlier Order, factors that must be examined in an extradition hearing were set forth. Order of December 6, 1984 at 1-2. An extradition certification is valid, if the following conditions are met:

(1) The judge must be authorized to conduct extradition proceedings.
(2) The judge must have jurisdiction of the subject matter and of the accused.
(3) The applicable treaties must be in full force and effect.
(4) The crimes for which extradition is requested must be offenses "within the treaty".
(5) The judge must determine whether the party brought before it is the one named in the complaint. Hooker v. Klein, 573 F.2d 1360, 1367 (9th Cir.), cert. denied, 439 U.S. 932 99 S.Ct. 323, 58 L.Ed.2d 327 (1978); see also Fernandez v. Phillips, 268 U.S. 311 45 S.Ct. 541, 69 L.Ed. 970 (1925); Charlton v. Kelly, 229 U.S. 447 33 S.Ct. 945, 57 L.Ed. 1274 (1913).
(6) There must be "competent and adequate evidence" for the decision.

Bingham v. Bradley, 241 U.S. 511, 516-17, 36 S.Ct. 634, 637-38, 60 L.Ed. 1136 (1916); Jimenez v. Aristeguieta, 311 F.2d 547, 562 (5th Cir.1962). Order of December 6, 1984 at 2.

Items 1, 2 and 3 have already been determined. Order of December 6, 1984 at 2; Order of February 21, 1985 at 2. Items 4, 5, and 6 will be considered at the March 12, 1985 hearing.

II.

The Court will consider the following issues in determining whether the crimes for which Demjanjuk's extradition is sought are offenses "within the treaty". 1963 Extradition Treaty between the United States and Israel, T.I.A.S. 5476, 14 U.S.T. 1717. (Item 4) (See Appendix for treaty provisions).

1. Does this Court have the authority, under the Extradition Treaty to extradite respondent to Israel where the Israeli government has charged him with crimes committed outside the territory of the State of Israel? (i.e. the "extraterritoriality" of the Extradition Treaty?)
a. Is the judicial determination of whether respondent is extraditable for the offenses charged discretionary under Article III of the Treaty because the Israeli statute under which respondent is charged asserts jurisdiction over acts which occurred outside the territory of Israel?
b. Do the laws of the United States, the requested party, provide for the punishment of similar offenses, within the meaning of Article III of the Treaty?
2. Does the extradition request fall into one of the exceptions to extradition set forth in the Treaty a. Is the article VI § 1 "double jeopardy" provision applicable in the instant case?
b. Is the extradition request time-barred under article VI § 3?
c. Is extradition prohibited by article VI § 4 because respondent is charged with crimes allegedly of a "political character"?
d. Do the death penalty provisions of the Nazi and Nazi Collaborators Law XXXX-XXXX bar extradition?
3. What effect, if any, does Israel's lack of statehood during the time the alleged crimes occurred have on whether the respondent is extraditable under the Treaty?
4. Is the Nazi and Nazi Collaborators Law an ex post facto law? If so, of what import is such a determination in these extradition proceedings?
III.

The Government will be permitted to submit properly authenticated documents, eyewitness affidavits or depositions, warrants, and other pertinent documents. See 18 U.S.C. § 3190; United States-Israel Extradition Treaty art. 10. The Government may also present live expert testimony as to Items 4, 5 and 6, if it so chooses.

Respondent will be permitted to present expert testimony and documentary evidence regarding the applicability of the United States-Israeli Extradition Treaty to his extradition (Item 4). He may present eyewitness or expert testimony and documentary evidence as to whether he is the person named in the Israeli Warrant (Item 5). He may, however, only present "explanatory" evidence, not "contradictory" evidence. Order of December 6, 1984 at 2-3.

On or before March 12, 1985 at 10:00 a.m., the parties will provide the Court with a list of expected witnesses, and state in detail the scope of their testimony and its relevance to the issues raised, as well as a list of the documents they wish to offer into evidence.

Amicus Curiae, The International Human Rights Law Group, is asked to argue as to whether it is consistent with international law for the State of Israel to try and punish persons accused of having committed certain acts outside of its territory before the adoption of the statute purporting to provide for such criminal jurisdiction. The parties may present oral argument and proffer expert testimony as to this issue.

IV.

An extradition court's role is limited to determining "whether there is competent evidence to justify holding the accused to await trial, and not to determine whether the evidence is sufficient to justify a conviction" Collins v. Loisel, 259 U.S. 309, 316, 42 S.Ct. 469, 472, 66 L.Ed. 956 (1922). Evidence presented by the petitioner must only be sufficient to establish "probable cause". Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed. 970 (1925); Shapiro v. Ferrandina, 478 F.2d 894, 900-01, (2d Cir.1973).

At the extradition hearing, respondent may not offer any evidence regarding the authenticity of the "Trawniki card" admitted into evidence during the denaturalization proceeding conducted by this Court in 1981. See Respondent's Explanatory Case History at 3-13 (April 2, 1984).

First, while the Israeli ...

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9 cases
  • Matter of Extradition of Demjanjuk
    • United States
    • U.S. District Court — Northern District of Ohio
    • 30 Abril 1985
    ...States-Israel extradition treaty remains in full force and effect. Order of December 6, 1984, 603 F.Supp. 1463; Order of March 8, 1985. 603 F.Supp. 1468. Three issues were considered at the March 12, 1985 extradition hearing. They 1. Whether the respondent is the party named in the complain......
  • U.S. v. Ramnath
    • United States
    • U.S. District Court — Eastern District of Texas
    • 11 Enero 2008
    ...the treaty; and 6) Whether probable cause exists to believe the respondent committed the crimes charged. See In re Extradition of Demjanjuk, 603 F.Supp. 1468, 1470 (N.D.Ohio 1985), appeal dismissed, 762 F.2d 1012 (6th Cir.1985); Glenn W. MacTaggart, Determining the Extraditability of Fugiti......
  • United States v. (In re Risner)
    • United States
    • U.S. District Court — Northern District of Texas
    • 11 Marzo 2019
    ...§ 3184; see alsoIn re Extradition of Bonilla, No. 1:13-MJ-62, 2014 WL 934903, at *4 (E.D. Tex. Mar. 4, 2014) and Matter of Demjanjuk, 603 F. Supp. 1468, 1470 (N.D. Ohio 1985). The two main requirements at issue in this case are the need to provide the documents called for by the Treaty and ......
  • United States v. (In re Risner), 3:18-mj-765-BN
    • United States
    • U.S. District Court — Northern District of Texas
    • 12 Febrero 2019
    ...§ 3184; see alsoIn re Extradition of Bonilla, No. 1:13-MJ-62, 2014 WL 934903, at *4 (E.D. Tex. Mar. 4, 2014) and Matter of Demjanjuk, 603 F. Supp. 1468, 1470 (N.D. Ohio 1985). The two main requirements at issue in this case are the need to provide the documents called for by the Treaty and ......
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1 books & journal articles
  • Donovan Jurisdictional Relationships Between Nations and Their Former Colonies
    • United States
    • Gonzaga University School of Law Gonzaga Journal of International Law No. 6-1, January 2002
    • Invalid date
    ...of the Government of Israel v. Eichmann, 36 ILR 5, 26 (1961). See also Demjanjuk v. Petrovsky, 776 F.2d 571 (6th Cir. 1985)(affirming 603 F.Supp. 1468 (N.D. Ohio 1985), cert denied 457 U.S. 1016 (1986), which held that the "'universality principle' is based on the assumption that some crime......

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