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The following paper was used as a term paper for a sophomore
level Political Science class centering on international relations.
The class was taken at a popular university in the state of
Massachusetts. The paper deals with the legal issues surrounding
the act of extradition of Nazi war criminals. Two international
law cases are dealt with in the paper and footnotes and sources
used can be found in the files, "footnotes.txt", and "sources.txt."
I suggest that you import the files into your favorite word
processor and adjust them accordingly. The paper got an "A" from a
fairly difficult grading professor, and once the paper is double
spaced it should work out to be about 14 or 15 pages. Have fun,
and good luck.
The term "laws of war" refers to the rules governing
the actual conduct of armed conflict. This idea that
there actually exists rules that govern war is a difficult
concept to understand. The simple act of war in and of
itself seems to be in violation of an almost universal law
prohibiting one human being from killing another. But
during times of war murder of the enemy is allowed, which
leads one to the question, "if murder is permissible then
what possible "laws of war" could there be?" The answer
to this question can be found in the Charter established
at the International Military Tribunals at Nuremberg and
Tokyo:
Crimes against Humanity: namely,
murder, extermination, enslavement,
deportation, and other inhumane acts
committed against any civilian
population, before or during the war, or
persecutions on political, racial or
religious grounds in execution of or in
connection with any crime within the
jurisdiction of the Tribunal, whether or
not in violation of the domestic law of
the country where perpetrated.
Leaders, organizers, instigators, and
accomplices participating in the
formulation or execution of a common
plan or conspiracy to commit any of the
foregoing crimes are responsible for all
acts performed by any persons in
execution of such plan.1
The above excerpt comes form the Charter of the Tribunal
Article 6 section C, which makes it quite clear that in
general the "laws of war" are there to protect innocent
civilians before and during war.
It seems to be a fair idea to have such rules
governing armed conflict in order to protect the civilians
in the general location of such a conflict. But, when the
conflict is over, and if war crimes have been committed,
how then are criminals of war brought to justice? The
International Military Tribunals held after World War II
in Nuremberg on 20 November 1945 and in Tokyo on 3 May
1946 are excellent examples of how such crimes of war are
dealt with. (Roberts and Guelff 153-54) But, rather than
elaborate on exact details of the Tribunals of Nuremberg
and Tokyo a more important matter must be dealt with.
What happens when alleged criminals of war are unable to
be apprehended and justly tried? Are they forgotten
about, or are they sought after such as other criminals
are in order to serve justice? What happens if these
alleged violators are found residing somewhere other than
where their pursuers want to bring them to justice? How
does one go about legally obtaining the custody of one
such suspect? Some of the answers to these questions can
be found in an analysis of how Israel went about obtaining
the custody of individuals that it thought to be guilty of
Nazi War Crimes. Not only will one find some of the
answers to the previously stated questions, but also one
will gain an understanding of one facet of international
law and how it works.
Two cases in specific will be dealt with here.
First, the extradition of Adolf Eichmann from Argentina,
and second, the extradition of John Demjanjuk from the
United States of America. These cases demonstrate two
very different ways that Israel went about obtaining the
custody of these alleged criminals. The cases also expose
the intricacy of International Law in matters of
extradition. But, before we begin to examine each of
these cases we must first establish Israel's right to
judicial processing of alleged Nazi war criminals.
To understand the complications involved in Israel
placing suspected Nazi war criminals on trial, lets review
the history of Israel's situation. During World War II
the Nazis were persecuting Jews in their concentration
camps. At this time the state of Israel did not exist.
The ending of the war meant the ending of the persecution,
and when the other countries discovered what the Nazis had
done Military Tribunals quickly followed. Some of the
accused war criminals were tried and sentenced, but others
managed to escape judgement and thus became fugitives
running from international law. Israel became a state,
and thus, some of the Jews that survived the concentration
camps moved to the state largely populated by people of
Jewish ancestry. Israel felt a moral commitment because
of its large Jewish population and set about searching for
the fugitive Nazi war criminals.
The situation just described is only a basic overview
of what happened. The state of Israel views itself as the
nation with the greatest moral jurisdiction for the trial
of Nazi war criminals, and other states around the Globe
agree with Israel's claim. (Lubet and Reed 1) Former
Israeli Attorney General Gideon Hausner was interested in
confirming Israel as the place for bringing to justice all
those suspected of genocide of Jews. Hausner sought to
confirm Israel's status by proposing to the United States
that they extradite Bishop Valerian Trifa to Israel for
trial as a war criminal. Israel was reluctant to support
Hausner's proposal, which resulted in delaying the
extradition process and thus gave Trifa the time needed to
find a country willing to give him residency. Portugal
granted Trifa residency and thus Hausner's proposal was in
vain.
Israel, sometime after losing their opportunity of
obtaining Trifa, decided that Hausner's idea of
establishing Israel as the place to bring Nazi war
criminals to trial was a good one, which lead them to seek
the extradition of John Demjanjuk from the United States.
The Wall Street Journal reported:
Israel's request for the extradition of
a suspected Nazi war criminal living in
the U.S. . . appears to be a test case
that could determine whether Israel
pursues other suspects . . . The
decision to seek the extradition of Mr.
Demjanjuk follows months of negotiations
between U.S. and Israel officials about
specific cases and the broader question
of whether Israel wanted to go through
with extraditions requests . . . Gideon
Hausner, who prosecuted Eichmann, said
Israel's decision to ask the U.S. to
extradite Nazis for trial [in Jerusalem]
is an important step. "This creates the
opportunity for at least tacit admission
of Israel's special position with regard
to crimes against Jews anywhere in the
world," he says.2
After much negotiations the United States arrested
Demjanjuk in November of 1983. On April 15, 1985 United
States District Judge Frank Battisti ruled in favor of
Demjanjuk's extradition. After the Sixth Court of Appeals
affirmed Battisti's ruling and the Supreme Court denied
Demjanjuk's petition for certiorari, Demjanjuk arrived in
Israel on February 27, 1986. (Lubet and Reed 3) It would
appear, from what has been presented, that the extradition
process is simple. But this conclusion is not correct
because there are a few issues that make extradition
problematic. One such issue that complicates the process
of extradition is that of identification and proof.
Leading Nazi war criminals such as Adolf Eichmann and
Klaus Barbie offer no real dispute in the matter of
identification, but war criminals that were not so
prominent leave room to question whether they truly are
who they are accused of being. The type of criminal cases
that most of us are familiar with are those that attempt
to prove whether a defendant committed a particular act or
acts. Extradition cases involve two distinct questions:
1) The prosecution must prove that the
defendant is actually the person sought
by the requesting country.
2) The court must find probable cause to
believe that the accused committed the
offense.3
In Demjanjuk extradition case Judge Battisti
concluded that identification "requires only a threshold
showing probable cause."4 How this threshold is achieved
can be done through the aid of a photograph comparison
with the accused, fingerprints, or an eyewitness.
In the matter of probable cause the appellate court
used the formulation of "any evidence warranting the
finding that there was reasonable ground to believe the
accused guilty."5 Furthermore it has been indicated that
the extradition process incorporates these rules:
Probable cause to support extradition
may be based entirely on hearsay, and
the defendant cannot present exculpatory
evidence, which the presiding judge
would have to weigh or balance.6
It must be kept in mind that the extradition process does
not attempt to prove the innocence or guilt of the accused
but rather whether the individual is whom he or she is
accused of being. The accuracy of the identification is
an issue that is resolved during the course of the actual
trial, and not in the extradition process. Simply
identifying Demjanjuk does not make him extraditable, the
requirement of criminality has to be met as well.
Concerning the requirement of criminality the
Stanford Journal of Law said the following:
The rule of dual criminality generally
provides that extradition may be had
only for acts extraditable by treaty and
considered criminal in both the
requested and requesting
jurisdictions...Since sovereigns rarely
define crimes using identical phrases
and since treaty terms may be ambiguous
or out of date, a substantial
jurisprudence has developed interpreting
and applying the requirement of
criminality.7
In the case of Demjanjuk Israel was charging him with "the
crimes of murdering Jews, [which are] offenses under
sections 1 to 4 of the Nazi and Nazi Collaborators
(Punishment) Law."8 The precise phrase, "murdering Jews,"
is not mentioned in the United States-Israel Extradition
Treaty, also the previously mentioned phrase does not
exist in current American penal statute. But, according
to the American rule of dual criminality a way away around
this small detail can be found:
The law does not require that the name
by which the crime is described in the
two countries shall be the same; nor
that the scope of the liability shall be
coextensive, or, in other respects, the
same in the two countries. It is enough
if the particular act charged is
criminal in both jurisdictions.9
It is clear to see that the previously mentioned American
rule on dual criminality gives the United States the
option of recognizing "murdering Jews" as simply to mean
"murder." Therefore, the requirement of dual criminality
in the case of John Demjanjuk is satisfied.
The issues of identification and probable cause,
along with the requirement of criminality help to
demonstrate the complexities involved in the extradition
process. Two more brief issues to consider regarding
Demjanjuk's extradition are the questions of
extraterritoriality and extratemporality.
Extraterritoriality in relation to the case of
Demjanjuk would have only been an issue had another
country along with Israel requested the extradition of
John Demjanjuk. In the case where two countries are
requesting the same individual the Secretary of State
would have to weigh the various forums' contacts in order
to determine which request to honor. Israel has
unofficially been recognized as the desirable nation for
bringing Nazi war criminals to trial. Germany, Poland,
and the U.S.S.R., for example, all waived their potential
requests for the extradition of Eichmann in favor of trial
by Israel. (Lubet and Reed 44-45)
In the matter of extratemporality, the trial judge
presiding over the Demjanjuk case ruled that murder was
not barred by lapse of time because the United States
recognizes no statue of limitations for that offense.
(Lubet and Reed 58) Even if murder were to be barred by
lapse of time Demjanjuk could still have been extradited
because of his misrepresentation of his wartime activities
during his immigration process. Demjanjuk could have then
been viewed as fleeing from justice and thus no statute of
limitations would have been extended to him.
The extradition process of Demjanjuk because it only
involves two countries would appear to be an easy process
to complete. Even when countries are cooperative, as were
the United States and Israel, concerning extradition it is
clear that issues such as identification and probable
cause, requirement of criminality, extraterritoriality,
and extratemporality demonstrate how complex the process
of extradition can be. Certainly, Israel could have
avoided the complexities and length of time involved in
extradition and gone about obtaining Demjanjuk the same
way they obtained Eichmann, but that method, although it
was effective, caused a bit of a commotion in the
international community.
Adolf Eichmann of the Reich Security Main Office was
the alleged strategist behind the so-called "final
solution of the Jewish question."10 There have been
roughly six million murders attributed to him, so it is
easy to understand why concentration camp survivors spent
fifteen years searching for him. Perseverance paid off
when Eichmann was found in Argentina living under an
assumed name. A group of volunteers, some of whom were
Israeli citizens acting without the support or direction
of the Israeli Government, removed Eichmann from Argentina
and brought him to Israel where they turned him over to
government so that a trial could take place. So far it
can be seen that this method of extradition is quicker and
less complicated than the Demjanjuk method of extradition.
There is no need for identification or probable cause,
requirement of dual criminality, extraterritoriality, or
extratemporality. The process is as simple as it sounds;
Eichmann was found and Eichmann was removed. Although the
method for extradition of Eichmann was quick it did result
in leaving Argentina very upset.
Argentina felt that Israel's exercise of authority
upon Argentine territory was an infringement on its
sovereignty. Israel defended itself by claiming that
Eichmann left Argentina voluntarily, and the Israeli
Government claimed that the group that removed Eichmann
was working under its own direction and not that of the
Israeli Government. Israel even went so far as to issue a
letter expressing their regrets for the actions taken by
the free acting group:
If the volunteer group violated
Argentine law or interfered with matters
within the sovereignty of Argentina, the
Government of Israel wishes to express
its regrets.11
Argentina's rejoined that even if Eichmann left
Argentina on his own free will that Israel should be
responsible for the actions of the private persons who
were Israeli citizens. One simple point to be made here
in reply to Argentina's argument is that only some of the
persons involved with the Eichmann removal were Israeli
citizens. There is a small possibility that the persons
who were Israeli citizens were only mere accessories to
the act, guilty of only marginal involvement.
Furthermore, the responsibility of states in connection
with the acts of private persons is predicated upon
territorial jurisdiction and not the bond of nationality.
(Svarlien 136) Israel has no jurisdiction within
Argentina and thus has no power over the actions of its
citizens within Argentina's borders. The sole power of
jurisdiction in this matter lays in the hands of
Argentina, and since the claim that Eichmann left
voluntarily has neither been shown to be false or
expressly denied it appears that no real Argentine law has
been violated.
Argentina went on further to argue that Israel's note
expressing their regret in the matter of Eichmann's
removal can be viewed as an apology, which constitutes an
admission of guilt. The phrasing of the note of regret
sent by Israel is embedded clearly with conditional terms,
which makes it difficult, if not impossible, to derive an
admission of guilt from it. At no time in the note does
Israel praise or approve the volunteer group actions, and
neither does Israel try to justify what was done. If
anything can clearly be derived from the note it is that
Israel in fact does regret the actions of the volunteer
group, and possibly even condemns their behavior. But,
Argentina's claim that the note is an admission of guilt
is hardly an argument worth pursuing. Argentina's
strongest argument against the abduction of Eichmann is
that Israel chose to detain Eichmann after he had been
captured.
Argentina claimed that even though the abduction of
Eichmann was an act committed by private citizens, the
Israeli Government's decision to detain and try Eichmann
made them an accessory. This point is Argentina's
strongest argument because it is known that the
jurisdiction of the court reaches only as far as the
borders of the state of which it is in. If the court had
no jurisdiction in the nation of the original seizure,
then by what right does that court have to detain and try
the accused? The only problem with Argentina's final
argument on the Eichmann abduction is that proof of
forcible seizure or arrest must be presented. Since the
abductors were acting of their own free will it is
doubtful that they arrested Eichmann in the name of
Israel. It is, however, quite possible that the abductors
used some force in the removal of Eichmann, but again, use
of force must be proved to give validity to Argentina's
final argument.
Argentina filed a complaint with the United Nations
Security Council under Article 33 claiming that Israel
violated international law, which created an atmosphere of
insecurity and distrust jeopardizing the preservation of
international peace. (Silving 312) After the presentation
of arguments and debates before the Security Council the
follow declarations were made:
violation of the sovereignty of a Member
State is incompatible with the Charter
of the United Nations;
repetition of acts such as that giving
rise to this situation would involve a
breach of the principles upon which
international order is founded creating
an atmosphere of insecurity and distrust
incompatible with the preservation of
peace.
The "adjudicative" part of the resolution.
1. Declares that acts such as that under
considerations, which affect the
sovereignty of a Member State and
therefore cause international friction,
may, if repeated, endanger international
peace and security;
2. Requests the Government of Israel to
make appropriate reparation in
accordance with the Charter of the
United Nations and rules of
international law.12
The important part of the resolutions that the United
Nations reached is the phrase "if repeated." It is almost
as if the United Nations said, "this time we will let the
infringement go, but next we will take action."
Considering the unique character of the crimes
attributed to Eichmann, and since such crimes are, for the
most part, universally condemned, Israel's breach of
international law seems to have been tolerated. It is
quite possible that had the person who was removed been
someone other than Eichmann the result of the United
Nations Security Council would have been much different.
The two cases of extradition expose the complexities
of international law. In the case of Demjanjuk, Israel
went about the extradition process in the correct manner,
which resulted in the issues of identification and
probable cause, requirement of criminality,
extraterritoriality, and extratemporality. When Israel
went about obtaining Adolf Eichmann the issues dealt with
were ones resulting from the method of Eichmann's
apprehension. Eichmann's removal from Argentina brought
to light the issue of violation of a country's
sovereignty. In both cases because the accused were being
charged with Nazi war crimes, specifically genocide, there
cases seem to get a little leeway and are not dealt with
as extremely as other cases might be. Nevertheless, their
cases demonstrate how one goes about bringing to justice
those charged with violating the laws of war.
FOOTNOTES
1 Roberts, Adam, and Richard Guelff, ed. Documents of the Laws of
War. (Oxford: Clarendon Press, 1982.) 155.
2 Lubert, Steven, and Jan Stern Reed. "Extradition of Nazis from
the United States to Israel: A Survey of Issues in
Transnational Criminal Law." Stanford Journal of
International Law. 23 (1986): 3.
3 Lubert, Steven, and Jan Stern Reed. "Extradition of Nazis from
the United States to Israel: A Survey of Issues in
Transnational Criminal Law." Stanford Journal of
International Law. 23 (1986): 15.
4 Lubert, Steven, and Jan Stern Reed. "Extradition of Nazis from
the United States to Israel: A Survey of Issues in
Transnational Criminal Law." Stanford Journal of
International Law. 23 (1986): 15.
5 Lubert, Steven, and Jan Stern Reed. "Extradition of Nazis from
the United States to Israel: A Survey of Issues in
Transnational Criminal Law." Stanford Journal of
International Law. 23 (1986): 18.
6 Lubert, Steven, and Jan Stern Reed. "Extradition of Nazis from
the United States to Israel: A Survey of Issues in
Transnational Criminal Law." Stanford Journal of
International Law. 23 (1986): 18.
7 Lubert, Steven, and Jan Stern Reed. "Extradition of Nazis from
the United States to Israel: A Survey of Issues in
Transnational Criminal Law." Stanford Journal of
International Law. 23 (1986): 20.
8 Lubert, Steven, and Jan Stern Reed. "Extradition of Nazis from
the United States to Israel: A Survey of Issues in
Transnational Criminal Law." Stanford Journal of
International Law. 23 (1986): 23.
9 Lubert, Steven, and Jan Stern Reed. "Extradition of Nazis from
the United States to Israel: A Survey of Issues in
Transnational Criminal Law." Stanford Journal of
International Law. 23 (1986): 23.
10 Silving, Helen. "In Re Eichmann: A Dilemma of Law and Morality"
The American Journal of International Law 55 (1961):311.
11 Silving, Helen. "In Re Eichmann: A Dilemma of Law and Morality"
The American Journal of International Law 55 (1961):318.
12 Silving, Helen. "In Re Eichmann: A Dilemma of Law and Morality"
The American Journal of International Law 55 (1961):313.