Laws Of War Essay Example For Students

Laws Of War Essay 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 co untry 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? TheInternational 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 su ch 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 understandingof 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 Israels right to judicial processing of alleged Nazi war criminals. To understand the complications involved in Israel placing suspectedNazi war criminals on trial, lets review the history of Israels 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 whathappened. 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 Israels 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 Israels 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 Hausners 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 Hausners proposal was in vain. Israel, sometime after losing their opportunity of obtaining Trifa,decided that Hausners 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:Israels 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 Israels decision to ask the U.S. to extradite Nazis for trial is an important step. This creates the opportunity for at least tacit admission of Israels special position with regard to crimes against Jews anywhere in the world, he sa ys.2After 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 Demjanjuks extradition. After the Sixth Court of Appeals affirmed Battistis ruling and the Supreme Court denied Demjanjuks 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 Barbieoffer 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 personsought by the requesting country. The Giver EssayArgentina went on further to argue that Israels note expressing their regret in the matter of Eichmanns 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, Argentinas claim that the note is an admission of guilt is hardly an argument worth pursuing. Argentinas 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 Governments decision to detain and try Eichmann made them an accessory. This point is Argentinas 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 Argentinas 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 Argentinas 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 inaccordance with the Charter of the United Nations and rules ofinternational 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, Israels 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 Eichmanns apprehension. Eichmanns removal from Argentina brought to light the issue of violation of a countrys 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. FOOTNOTES1 Roberts, Adam, and Richard Guelff, ed. Documents of the Laws ofWar. (Oxford: Clarendon Press, 1982.) 155. 2 Lubert, Steven, and Jan Stern Reed. Extradition of Nazis fromthe United States to Israel: A Survey of Issues inTransnational Criminal Law. Stanford Journal ofInternational Law. 23 (1986): 3. 3 Lubert, Steven, and Jan Stern Reed. Extradition of Nazis fromthe United States to Israel: A Survey of Issues inTransnational Criminal Law. Stanford Journal ofInternational Law. 23 (1986): 15. 4 Lubert, Steven, and Jan Stern Reed. Extradition of Nazis fromthe United States to Israel: A Survey of Issues inTransnational Criminal Law. Stanford Journal ofInternational Law. 23 (1986): 15. 5 Lubert, Steven, and Jan Stern Reed. Extradition of Nazis fromthe United States to Israel: A Survey of Issues inTransnational Criminal Law. Stanford Journal ofInternational Law. 23 (1986): 18. 6 Lubert, Steven, and Jan Stern Reed. Extradition of Nazis fromthe United States to Israel: A Survey of Issues inTransnational Criminal Law. Stanford Journal ofInternational Law. 23 (1986): 18. 7 Lubert, Steven, and Jan Stern Reed. Extradition of Nazis fromthe United States to Israel: A Survey of Issues inTransnational Criminal Law. Stanford Journal ofInternational Law. 23 (1986): 20. 8 Lubert, Steven, and Jan Stern Reed. Extradition of Nazis fromthe United States to Israel: A Survey of Issues inTransnational Criminal Law. Stanford Journal ofInternational Law. 23 (1986): 23. 9 Lubert, Steven, and Jan Stern Reed. Extradition of Nazis fromthe United States to Israel: A Survey of Issues inTransnational Criminal Law. Stanford Journal ofInternational Law. 23 (1986): 23. 10 Silving, Helen. In Re Eichmann: A Dilemma of Law and MoralityThe American Journal of International Law 55 (1961):311. 11 Silving, Helen. In Re Eichmann: A Dilemma of Law and MoralityThe American Journal of International Law 55 (1961):318. 12 Silving, Helen. In Re Eichmann: A Dilemma of Law and MoralityThe American Journal of International Law 55 (1961):313. Political Issues Essays