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War Laws

.. 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.

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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. Bibliography 1 Roberts, Adam, and Richard Guelff, ed. Documents of the Laws of War. (Oxford: Clarendon Press, 1982.) 155. 2 Lubert, Steven, and Jan Stern Reed.

“Extradition of Nazis from the United States to Israel: A Survey of Issues in Transnational Criminal Law.” Stanford Journal of International Law. 23 (1986): 3. 3 Lubert, Steven, and Jan Stern Reed. “Extradition of Nazis from the United States to Israel: A Survey of Issues in Transnational Criminal Law.” Stanford Journal of International Law. 23 (1986): 15.

4 Lubert, Steven, and Jan Stern Reed. “Extradition of Nazis from the United States to Israel: A Survey of Issues in Transnational Criminal Law.” Stanford Journal of International Law. 23 (1986): 15. 5 Lubert, Steven, and Jan Stern Reed. “Extradition of Nazis from the United States to Israel: A Survey of Issues in Transnational Criminal Law.” Stanford Journal of International Law.

23 (1986): 18. 6 Lubert, Steven, and Jan Stern Reed. “Extradition of Nazis from the United States to Israel: A Survey of Issues in Transnational Criminal Law.” Stanford Journal of International Law. 23 (1986): 18. 7 Lubert, Steven, and Jan Stern Reed. “Extradition of Nazis from the United States to Israel: A Survey of Issues in Transnational Criminal Law.” Stanford Journal of International Law.

23 (1986): 20. 8 Lubert, Steven, and Jan Stern Reed. “Extradition of Nazis from the United States to Israel: A Survey of Issues in Transnational Criminal Law.” Stanford Journal of International Law. 23 (1986): 23. 9 Lubert, Steven, and Jan Stern Reed.

“Extradition of Nazis from the United States to Israel: A Survey of Issues in Transnational Criminal Law.” Stanford Journal of International Law. 23 (1986): 23. 10 Silving, Helen. “In Re Eichmann: A Dilemma of Law and Morality” The American Journal of International Law 55 (1961):311. 11 Silving, Helen.

“In Re Eichmann: A Dilemma of Law and Morality” The American Journal of International Law 55 (1961):318. 12 Silving, Helen. “In Re Eichmann: A Dilemma of Law and Morality” The American Journal of International Law 55 (1961):313.

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