The writer, professor of law at McGill University and a specialist in war crimes law, is president of the International Human Rights Center, one of the petitioners in this case. The High Court will have a hard time rejecting the attorney-general's postion on Demjanjuk

IF a country found that a person resided in its jurisdiction against whom there was prima facie evidence that he had "participated in the {Nazi} extermination process," the responsibility would be clear: It would be obliged as a matter of international law to bring the suspected Nazi war criminal to justice.

Moreover, a failure to prosecute would constitute a breach of the "law of nations."

As Israel's Supreme Court put it in the Eichmann case, Israel is obliged as the "guardian of international law and agent for its enforcement" to prosecute war criminals "on behalf of all nations."

In its judgment of July 29, the Supreme Court found that there was a "reasonable doubt" that John Demjanjuk was "Ivan the Terrible" of Treblinka, and acquitted him of that charge.

But the court also found that there was "clear and unequivocal evidence" that he had "aided in murder" as the SS Wachmann Ivan Demjanjuk of Trawnicki; that there was "overwhelming evidence" that he had "participated in murder" at the Sobibor death camp; that, in a word, he was a member of a group of SS Wachmanner "whose purpose was murder and whose objective was genocide and whose like is unknown in the history of humanity."

Yet the attorney-general, responding to a series of petitions calling upon him to bring new war-crimes charges against John Demjanjuk for his alleged participation not only as a Wachmann in Trawnicki and Sobibor, but also at the concentration camps of Flossenberg, Regensburg and Maidanek, recommended against doing so.

In an opinion submitted on August 11, the attorney-general offered four reasons for this position:

-- First, that trying Demjanjuk on these charges might well constitute a case of "double jeopardy," since there had been a "danger" of conviction on these same charges in the first trial.

But this argument ignores the fact that, as the Supreme Court itself stated, the "aiding of murder" at Trawnicki "had never even been pleaded by the prosecution"; and "participation in murder" at Sobibor "had not been the subject of the prosecution's pleading" until the close of the hearing in the Court of First Instance.

-- Second, it was unclear whether Israel had the authority to try Demjanjuk for charges other than Treblinka under the US-Israeli Treaty.

BUT this argument ignores the fact that "participation in murder" is an extraditable offense under the present Extradition Treaty; and that, at the very least, Israel could seek the permission of the US to try Demjanjuk on these charges, a request which US authorities have said would elicit a positive response.

-- Third, the Supreme Court's judgment itself had characterized any further proceedings against Demjanjuk as "unreasonable."

But this again ignores the fact that the Court regarded only the continuation of the same proceedings as "unreasonable"; it did not comment upon, let alone recommend against, new charges in a second trial.

-- Finally, the attorney-general took the view that a new trial was not warranted in the "public interest," as it might well result once again in an acquittal after a protracted, complex proceeding.

This submission appears to confuse the whole character of war-crimes prosecutions. No war crimes trial - or any other trial, for that matter - is guaranteed to secure a conviction; rather, it is warranted whenever there is prima facie evidence that the accused is guilty of war crimes and crimes against humanity.

Indeed, it may well be argued that the "public interest" in the case compels a new trial. For a failure now to prosecute might undermine the underlying principles of international human rights law in general - and international humanitarian law in particular - while weakening the international resolve to bring war criminals to justice.

And it would appear to betray the jus cogens of the Nuremberg legacy, while vindicating not only the old Nazis, but encouraging the new ones.

The High Court of Justice has said that it will rule tomorrow on the merits of the petitions. Its task in the light of the attorney-general's recommendation against prosecution is a most difficult one.

Even if the High Court regards the arguments of the petitioners as well-founded, it may only reject the opinion of the attorney-general if it is "unreasonable in the extreme."

The question is whether Israel's responsibility under international law, in the light of the judicial findings of fact by the Supreme Court itself, make that opinion "unreasonable in the extreme."

(Copyright 1993)