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 conflictin order to protect the civilians in the
general location of such aconflict. 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
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