Laws of War

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