Extradition and deportation are frequently confused, with the terms incorrectly used interchangeably. This occurred earlier this year when convicted Nazi criminal John Demjanjuk died. The New York Times obituary, correctly noting his 2009 deportation to Germany, erroneously reported he was deported to Israel in 1986 when he was actually extradited there.1 Nor was this the first time such a mistake had been made.2 These terms are not synonymous; each involves a separate proceeding and has its own legal significance. There are substantial differences between the two.

As the Supreme Court has stated, “‘extradition’ and ‘deportation’…are different things, and have different purposes.”3

This concern is not academic. Confusing the two implicates properly understanding the significance of the legal proceedings taken in response to Holocaust crimes. Equating the two downplays the importance of the United States extraditing, rather than deporting, an accused Nazi. The law governing Demjanjuk’s extradition to Israel illustrates this significance, which would have been absent had he been deported there.

Defining Terms

International extradition involves a country requesting the United States to surrender a person to criminally prosecute him, the authority deriving from treaty or statute. No per se prohibition to extraditing American citizens exists. The court adjudicating the request certifies whether the person is subject to extradition; the Secretary of State implements any extradition.4

A court certifying one extraditable must find, inter alia, the requesting nation has jurisdiction to undertake the criminal prosecution for which extradition is sought and the alleged crime(s) is extraditable under the applicable treaty or convention. Without jurisdiction, extradition cannot occur.5

There is no direct review of an extradition decision. Review may be obtained through habeas corpus, but such review is limited to issues such as whether the offense is extraditable, which necessarily involves determining whether the requesting nation validly possesses authority to prosecute.6

Deportation (or removal) is a civil proceeding where the United States expels a person for conduct Congress has declared requires removal. “Congress has the power to order the deportation of aliens whose presence in the country it deems hurtful.” The conduct triggering expulsion may have occurred within, or prior to arrival in, the United States. Deportation does not constitute punishment, but “a refusal by the government to harbor persons…it does not want.”7

Only aliens may be deported; no authority exists to deport citizens. One deported can be sent to various countries, including country of birth, country from which the alien was admitted or, as a last resort, any country that would accept him.8 No legal significance attaches to the specific country where an alien is sent; what is important is the removal.

The federal government initiates deportation. A criminal prosecution in the receiving country is not a prerequisite for removal, and there is no certainty the person deported will be criminally prosecuted. For purposes of deportation law it is irrelevant whether the deportee faces criminal prosecution. The Supreme Court has long acknowledged these principles.9

Nazi Crimes

One statute, the Holtzman Amendment (HA), requires deportation from the United States of any alien who “ordered, incited, assisted, or otherwise participated in…[Nazi] persecution….” Even when specifically mandated because of involvement in Nazi crimes, deportation under the HA does not entail U.S. recognition of the receiving country’s jurisdiction to criminally prosecute the person; deportation occurs irrespective of whether such prosecution ever occurs.10

The burden the government carries underscores a HA deportation does not involve criminal punishment, as this law’s “non-criminal provision…makes assistance in persecution an independent basis for deportation, and assistance may be inferred from the general nature of the person’s role in the war….” This law’s purpose “is not to punish individuals…but to ensure that the United States is not a haven for individuals who assisted the Nazis in the brutal persecution and murder of millions….”11

An HA proceeding in the U.S. Court of Appeals for the Second Circuit is instructive.

In the early 1980s the government sought Karl Linnas’ deportation because he served as chief of a Nazi concentration camp in Estonia. Ordered removed to the Soviet Union, he argued deportation would be a disguised extradition; no extradition treaty with the USSR existed. He claimed non-citizens have a right not to be extradited to a country with which the United States has no treaty.

Rejecting his argument, the appeals court focused on key differences between deportation and extradition, including that the federal government was “the impetus for” his deportation and that he was given an opportunity to designate the country to which he wished to be sent (as are all facing deportation) “strongly undercuts his contention that his deportation was a disguised attempt to extradite him….”12

These differences were highlighted in the Demjanjuk extradition proceedings in cases making readily apparent the significance of extradition regarding Holocaust crimes.

In 1983, Israel requested Demjanjuk’s extradition, alleging he had operated Treblinka’s gas chambers.13 Pursuant to a treaty with Israel, the United States brought suit in district court seeking to certify him extraditable for, inter alia, murder. Israel sought to try him under its 1950 Nazi and Nazi Collaborators (Punishment) Law (NPL), which “makes crimes against the Jewish people [and] crimes against humanity…which occurred during the Nazi period…punishable under Israeli law.” There was also a deportation order against him, but the court allowed the extradition proceeding to proceed because “extradition and deportation…are independent….”14

One argument against extradition was Israel lacked jurisdiction to try him under “recognized principles of international law.” The most relevant one was the universality principle, also known as universal jurisdiction. It holds “some crimes are so universally condemned that the perpetrators are the enemies of all people,” and thus “any nation which has custody of the perpetrators may punish them according to its law applicable to such offenses.”15 The Nuremberg proceedings were based on this doctrine.

The Northern District of Ohio faced the threshold question: Could Israel, consistent with international law, apply its NPL to prosecute Demjanjuk for allegedly having committed crimes beyond its territory. He argued, for extradition treaty purposes, no jurisdiction existed under universality unless Congress or a treaty first defined the acts of which he stood accused as universal crimes.

If Israel lacked jurisdiction, extradition was barred. The court rejected his argument, certifying him extraditable to stand trial for murder. It concluded Israel’s assertion of jurisdiction proper:

Israel has brought charges of ‘murder’ against Demjanjuk, asserting jurisdiction based on a statute which penalizes ‘war crimes’ and ‘crimes against humanity….’ The international community has determined that these offenses are crimes over which universal jurisdiction exists.16

Reviewing the lower court’s denial of habeas corpus, the U.S. Court of Appeals for the Sixth Circuit reaffirmed Israel’s jurisdictional claim:

Israel is seeking to enforce its criminal law for the punishment of Nazis and Nazi collaborators for crimes universally condemned by the community of nations. The fact that Demjanjuk is charged with committing these acts in Poland does not deprive Israel of authority to bring him to trial.

It explained when a nation asserts universality as the jurisdictional basis, neither the victims’ or perpetrators’ nationality, nor the crimes’ location, is germane. Because the operative premise was “the crimes are offenses against the law of nations or against humanity and…the prosecuting nation is acting for all nations,” the court concluded:

Israel or any other nation, regardless of its status in 1942 or 1943, may undertake to vindicate the interest of all nations by seeking to punish the perpetrators of such crimes.17

Just before he was to be extradited, Demjanjuk filed an emergency application to stay the extradition in the U.S. Court of Appeals for the D.C. Circuit. The court refused to stay extradition, citing the district court’s conclusion, “Israel has jurisdiction to try [Demjanjuk] for murder under the international law doctrine of ‘universal jurisdiction.’”18

Throughout these proceedings, federal courts recognized and upheld Israel’s right under universality to criminally prosecute Demjanjuk for Nazi killings even though Israel attained statehood after the war and the Nazi crimes occurred extraterritorially. No such recognition would have been required, and the issue of Israeli jurisdiction irrelevant, had he been deported to Israel.

Similarly, the question of Germany’s jurisdiction was not relevant when the United States deported him there pursuant to the HA. The decision ordering him deported designated Ukraine, or, alternatively, Germany or Poland. That order was not predicated on whether these nations intended to bring a criminal prosecution against Demjanjuk; nor did it make removal contingent upon whether the United States recognized their authority to try him for alleged involvement in Nazi crimes.19

Having assented to Israeli authority to try Demjanjuk based on universality, the federal courts provided formal, post-Nuremberg judicial recognition that Nazi Germany’s destruction of European Jewry constituted crimes universally condemned by civilized nations. Their decisions vitalize the principle that any nation may, consistent with international law, criminally prosecute the alleged perpetrators. By ratifying the validity of Israel’s jurisdictional position, these courts strengthened a precedent that remains useful in securing the prosecution of those accused of crimes against humanity. These rulings emerged as a necessary consequence of the courts’ upholding Israel’s extradition request.

Conclusion

Because it results in criminal prosecutions, extradition of Nazi perpetrators has served as a legal mechanism to attain a measure of justice against those who made possible “the greatest moral catastrophe of our civilization.”20 No such legal consequences attach, nor is criminal prosecution certain to follow, when one is deported, even under the HA. Given these differences between extradition and deportation, using the terms interchangeably or synonymously impedes society’s commitment to promote greater understanding of the historical and legal significance of the law’s efforts to confront the unprecedented Nazi criminality of the Holocaust.

Lee A. Spielmann is an assistant regional counsel with the U.S. Environmental Protection Agency in New York City. He lectures and writes on the law’s attempt to confront issues arising from the Holocaust.

Endnotes:

1. Robert McFadden, “John Demjanjuk, Accused of Atrocities as Nazi Camp Guard, Is Dead at 91,” The New York Times, March 18, 2012, page 22.

2. See, e.g., Deborah Lipstadt, “Demjanjuk in Munich,” The New York Times (op-ed), May 17, 2011, A27 (also incorrectly stating he was extradited to Germany); Jack Ewing and Alan Cowell, “Ex-Guard at Nazi Death Camp Is Found Guilty by German Court,” The New York Times, May 13, 2011, A4; Nicholas Kulish, “Man, 89, Accused of Crimes at a Nazi Camp Is Deported,” The New York Times, May 12, 2009, A10; and James Perry, “Buchanan, Fighting Bush, Is Himself Attacked for His Views About Jews, Israel and the Nazis,” The Wall Street Journal, Feb. 13, 1992.

3.Fong Yue Ting v. U.S, 149 U.S. 698, 709 (1893).

4. Valentine v. U.S., 299 U.S. 5, 9 (1936) (authority). See also Ntakirutimana v. Reno, 184 F.3d 419, 422 (5th Cir. 1999) (statute implementing executive agreement for the surrender of persons wanted by international criminal tribunal). Charlton v. Kelly, 229 U.S. 447, 467 (1913) (extradition of citizens). 18 U.S.C. §3186 (Secretary of State).

5. 18 U.S.C. §3184 authorizes judges to hold hearings to determine extraditability where a treaty or convention exists and a person is charged “with having committed within the jurisdiction of any such foreign government any of the crimes provided for by such treaty or convention….” See, e.g., Terlinden v. Ames, 184 U.S. 270, 289 (1902): “Extradition [constitutes] the surrender by one nation to another of an individual accused or convicted of an offense outside its own territory, and within the territorial jurisdiction of the other, which, being competent to try and punish him, demands the surrender.”

6. Collins v. Miller, 252 U.S. 364, 369 (1920) (no appeal); Fernandez v. Phillips, 268 U.S. 311, 312 (1925) (review limited).

7. Bugajewitz v. Adams, 228 U.S. 585, 591 (1913).

8. U.S. v. Tod, 263 U.S. 149, 153 (1923); Minasyan v. Gonzales, 401 F.3d 1069, 1075 (9th Cir. 2005). 8 U.S.C. §1231(b)(2)(E) (where one might be deported).

9. See, e.g., Fong Yue Ting, 149 U.S. at 709: “‘Deportation’ is the removal of an alien out of the country simply because his presence is deemed inconsistent with the public welfare, and without any punishment being imposed or contemplated, either under the laws of the country out of which he is sent or under those of the country to which he is taken.”

10. 8 U.S.C. §1227(a)(4)(D) [removal]. For example, as of June 2010, of the 12 native Lithuanians removed from (or left under threat of removal) the United States because of their collaboration in Nazi persecutions, Lithuania criminally prosecuted only three, and none was punished. Paul Frysh, “The Holocaust in Lithuania: One man’s crusade to bring justice,” CNN.com, posted June 3, 2010 (available at http://www.cnn.com/2010/WORLD/europe/06/03/lithuania.nazi. prosecutions/index.html.)

11. Kalejs v. INS, 10 F.3d 441, 444 (7th Cir. 1993), cert. denied, 510 U.S. 1196 (1994); Schellong v. INS, 805 F.2d 655, 662 (7th Cir. 1986), cert. denied, 481 U.S. 1004 (1987). See also Kulle v. I.N.S., 825 F.2d 1188, 1193 (7th Cir. 1987), cert. denied, 484 U.S. 1042 (1988), “This is not a criminal proceeding [and] [t]he legal principles established at Nuremberg…have no immediate bearing on a deportation proceeding….” (former concentration camp guard).

12. Linnas v. INS, 790 F.2d 1024, 1030-31 (2d Cir.), cert. denied, 479 U.S. 995 (1986).

13. Treblinka was one of three extermination camps the Nazis established for killing the Jews living in German-occupied central/eastern Poland; the other two were Belzec and Sobibor. In these camps, 1.5 million were killed, approximately 925,000 at Treblinka. See, e.g., Peter Black, “Foot Soldiers of the Final Solution: The Trawniki Training Camp and Operation Reinhard,” 25 Holocaust and Genocide Studies 2, 93 n.285 (2011). From late July to mid-September 1942, more than 250,000 Jews from the Warsaw ghetto were murdered there. See, e.g., Peter Longerich, Holocaust: The Nazi Persecution and Murder of the Jews (NY: Oxford University Press, 2010), 335.

14. In re Extradition of John Demjanjuk, 612 F.Supp. 544, 546-47, 554 (N.D. Ohio 1985). The United States “was under no obligation to elect deportation or extradition as the exclusive means of proceeding….” Id. at 547.

15. Demjanjuk v. Petrovsky, 776. F.2d 571, 582 (6th Cir. 1985), cert. denied, 475 U.S. 1016 (1986), vacated on other grounds, 10 F.3d 338 (6th Cir. 1993), cert. denied sub nom., Rison v. Demjanjuk, 513 U.S. 914 (1994). The appeals court affirmed the district court’s denial of habeas corpus. 612 F.Supp. 571 (N.D. Ohio 1985).

16. 612 F.Supp. at 558 (footnote omitted). The court noted Israeli jurisdiction did not violate American jurisdictional principles and Israeli courts have recognized their jurisdiction, consistent with universality jurisdiction, to try accused Nazis under the NPL, citing to Israel’s 1961 prosecution of Adolf Eichmann. 612 F.Supp at 554, 555. Eichmann’s office was responsible for deporting Jews from throughout Europe (other than occupied Poland) to the killing centers. See, e.g., Raul Hilberg, The Destruction of the European Jews (New Haven: Yale University Press, 3rd edition, 2003).

17. 776 F.2d at 582-83.

18. Demjanjuk v. Meese, 784 F.2d 1114, 1117 (D.C. Cir. 1986).

19. In re John Demjanjuk, File A# 08-237-417, Department of Justice, Immigration Court, Dec. 28, 2005. In 1993 Israel’s Supreme Court acquitted him of his trial court conviction; he was subsequently returned to America. His citizenship was restored, then later revoked. U.S. v. Demjanjuk, 367 F.3d 623 (6th Cir.), cert. denied, 543 U.S. 970 (2004). Deported in 2009 to Germany, he was tried and found guilty as an accessory to murder of more than 28,000 people at the Sobibor extermination camp (where he had served as a guard). See, e.g., Nicholas Kulish, “Germans Weigh More Charges for Nazi Guards,” The New York Times, Oct. 6, 2011, A6. Approximately 167,000 Jews were murdered at Sobibor. Black, 93 n.285. Demjanjuk’s appeal was pending when he died.

20. U.S. v. Szehinskyj, 104 F.Supp.2d 480, 501 (E.D. Pa. 2000), aff’d, 277 F.3d 331 (3d Cir. 2002) (Nazi camp guard denaturalized). The United States has extradited two other persons in connection with Nazi crimes. In re Extradition of Andrija Artukovic, 628 F.Supp. 1370 (C.D. Cal.), stay denied, 784 F.2d 1354 (9th Cir. 1986) (Yugoslavia); In re Extradition of Hermine Ryan (nee Braunsteiner), 360 F.Supp. 270 (E.D.N.Y.), aff’d, 478 F.2d 1397 (2d Cir. 1973) (West Germany).

 

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