JUDICIAL DECISION

THE DEMJANJUK TRIAL

By FaniaDomb*

Cr.A. (Criminal Appeal) 347/88, Ivan (John) Demjanjuk v. State of (Separate volume, Hebrew, 1993.)

(Appeal of an American citizen convicted by the District Court of of serving during World War II as operatorof the gas chambers in the Treblinka : appellantcalled Ivan the Terrible because of atrocitieshe allegedly committed on people being led to their deaths; the origins and actual execution of the Reinhard Operationfor the Final Solution of the Jewish problem, namely, the physical extermination of the Jewish people in gas chambers; appellant'salleged activities constituted crimes against the Jewish people, and war crimes; defence's contention of lack of jurisdiction because of violation of the principle of speciality by trying the appellant under the Nazis' Law despite his for "murder"; confirmation of authenticity of the certificate bearing the appellant's photographand a record of his assignment to the Sobibor Extermination Camp; complete rebuttal of the appellant's alibi; no evidentiary weight of the appellant's comments; approval of the District Court finding on the identification of the appellantas Ivan the Terrible as based on identifications made by numerous survivors of Treblinka in photograph identification line- ups; additional evidence in the appeal stage, consisting of statements of Wachmdnner that the operatorof the gas chambers was called Ivan Marchenko; additionalevidence constituting a reasonabledoubt from which the appellantis entitled to benefit; service in the Trawniki unit and in Sobibor amounting to offences of aiding to murder; conviction of an accused on alternative charge lawful only if he has been given a reasonable opportunity to defend himself; no such opportunity was given to the appellant because the proceedings concentrated on charges relating to Treblinka; starting new proceedings after seven years consideredby the Court as unreasonable.)

LL.M.; Instructor, Faculty of Law, Tel Aviv University. 323 Y. Dinstein (ed.), Israel Yearbook on Human Rights 24, 323-341. @ 1995 Israel Yearbook on Human Rights. Printedin the Netherlands. 324 ISRAEL YEARBOOK ON HUMAN RIGHTS

This is an appeal judgment, delivered by the , sitting as a Court of Criminal Appeals, in an appeal on a judgment of the District Court of Jerusalem - rendered in 1988 - wherein the appellant was identified as a Nazi criminal, subsequently convicted, and sentenced to death.1 The appellant was extradited to Israel from the United States in 1986, on the charge of being "Ivan the Terrible" from the Treblinka Extermination Camp in Poland. He was a Ukrainian citizen who, as an operator of the gas machines, allegedly participated in the annihilation of hundreds of thousands of Jews during the period of 1942-44. He was charged and convicted under the Nazis and Nazi Collaborators (Punishment) Law, 19502 (hereinafter: the Nazis' Law) of the commission of crimes against the Jewish people, crimes against humanity and war crimes; and sentenced to death. The appeal was directed both against his conviction - based on his identification as Ivan the Terrible - and against the sentence. In a unanimous decision of five Justices, the Supreme Court acquitted the appellant - because of doubt - of the charge of being Ivan the Terrible and ordered his release, although it was proved that he had served as a Wachmann in the Sobibor Extermination Camp. The main topics of this extensive judgment - spanning over four hundred pages - are presented as follows.

Preamble

In the Preamble of its judgment, the Supreme Court reviewed the factual background of the case, and referred to the subjects of the extermination of Jews, the Reinhard Operation, the Treblinka Camp, the extermination process, the activity of Ivan the Terrible and his criminal responsibility. Starting with the subject of the extermination of Jews, the Court opined that the official anti - Semitic policy adopted by the Third Reich ultimately led to the extermination of six million Jews. The process of extermination took place in three main phases:

a) From 1935 and until the outbreak of World War II (September 1939), Jews were excluded from German society, and deprived of the protection of law and of their property (the Nuremberg Laws of 1935); b) From the outbreak of World War II and until 's invasion of the (June 1941), Jews in the territories occupied by

1 Cr.F. (Criminal File) 373/86, State of Israel v. John (Ivan) Demjanjuk (separate volume, 1988); the verdict and sentence of the District Court of Jerusalem are excerpted in 18 Israel Yearbook on Human Rights 229 (1988). 2 4 Laws of the State of Israel (L.S.I.) 154.