Extradition of Nazi War Criminals


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
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
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
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
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
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
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. 

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
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
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
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
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
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
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
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
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
The American Journal of International Law 55 (1961):311.
11 Silving, Helen. "In Re Eichmann: A Dilemma of Law and
The American Journal of International Law 55 (1961):318.
12 Silving, Helen. "In Re Eichmann: A Dilemma of Law and
The American Journal of International Law 55 (1961):313.

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