War Laws 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 …