Laws of War

Laws of War


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



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