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