420 lines
24 KiB
Plaintext
420 lines
24 KiB
Plaintext
ÜÜÜÜÜÜÜÜÜÜÜÜÜ ÜÜÜ ÜÜÜÜ
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ÜÛÛÛÛÛÛÛÛßÛßßßßßÛÛÜ ÜÜßßßßÜÜÜÜ ÜÛÜ ÜÛÛÛÛÛÛÛÛÜÜÜÜÜÛßß ßÛÛ
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ßÛÛÛÛÛÛÛÛÛÛÛÛÛÛÜ ßÛÛ ÜÛÛÛÜÛÛÜÜÜ ßÛÛÛÛÜ ßÛÛÛÛÛÛÛÜÛÛÜÜÜÛÛÝ Ûß
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ßßßÛÛÛÛÛÛÛÛÛÛÜ ÞÝ ÛÛÛÛÛÛÛÛÛÛÛßßÛÜÞÛÛÛ ÛÛÛÛÛÜ ßßÛÛÛÞß
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Mo.iMP ÜÛÛÜ ßÛÛÛÛÛÛÛÝÛ ÞÛÛÛÛÛÛÛÛÛ ÞÛÛÛÛ ÞÛÛÛÛÛÝ ßÛß
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ÜÛÛÛÛÛÛÛ ÛÛÛÛÛÛÛÛÝ ÞÛÛÛÛÛÛÛÛÝ ÛÛÛ ÛÛÛÛÛÛ
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ÜÛÛÛÛÛÛÛÝ ÞÛÛÛÛÛÛÛÛ ÞÛÛÛÛÛÛÛÛ ß ÞÛÛÛÛÛÛÜ ÜÛ
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ÜÛÛÛÛÛÛÛÝ ÛÛÛÛÛÛÛÛ ÛÛÛÛÛÛÛÛÝ ÞÞÛÛÛÛÛÛÛÛÛß
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ÜÛßÛÛÛÛÛÛ ÜÜ ÛÛÛÛÛÛÛÛÝ ÛÛÞÛÛÛÛÛÝ ÞÛÛÛÛÛÛßß
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ÜÛßÛÛÛÛÛÛÜÛÛÛÛÜÞÛÛÛÛÛÛÛÛ ÞÛ ßÛÛÛÛÛ Ü ÛÝÛÛÛÛÛ Ü
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ÜÛ ÞÛÛÛÛÛÛÛÛÛÛß ÛÛÛÛÛÛÛÛÛ ßÛÜ ßÛÛÛÜÜ ÜÜÛÛÛß ÞÛ ÞÛÛÛÝ ÜÜÛÛ
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ÛÛ ÛÛÛÛÛÛÛÛß ÛÛÛÛÛÛÛÛÛÛÜ ßÛÜ ßßÛÛÛÛÛÛÛÛÛß ÜÜÜß ÛÛÛÛÜÜÜÜÜÜÜÛÛÛÛÛß
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ßÛÜ ÜÛÛÛß ßÛÛÛÛÛÛÛÛÛÛÜ ßßÜÜ ßßÜÛÛßß ßÛÛÜ ßßßÛßÛÛÛÛÛÛÛßß
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ßßßßß ßßÛÛß ßßßßß ßßßßßßßßßßßßß
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ARRoGANT CoURiERS WiTH ESSaYS
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Grade Level: Type of Work Subject/Topic is on:
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[ ]6-8 [ ]Class Notes [Term Paper on ]
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[ ]9-10 [ ]Cliff Notes [Extradition of Nazi War ]
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[ ]11-12 [x]Essay/Report [Criminals ]
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[x]College [ ]Misc [ ]
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Dizzed: 11/94 # of Words:3595 School: ? State: ?
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ÄÄÄÄÄÄÄÄÄ>ÄÄÄÄÄÄÄÄÄ>ÄÄÄÄÄÄÄÄÄ>Chop Here>ÄÄÄÄÄÄÄÄÄ>ÄÄÄÄÄÄÄÄÄ>ÄÄÄÄÄÄÄÄÄ>ÄÄÄÄÄÄÄÄÄ
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The following paper was used as a term paper for a sophomore level
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Political Science class centering on international relations. The class was
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taken at a popular university in the state of Massachusetts. The paper
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deals with the legal issues surrounding the act of extradition of Nazi war
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criminals. Two international law cases are dealt with in the paper. The
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paper got an "A" from a fairly difficult grading professor, and once the
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paper is double spaced it should work out to be about 14 or 15 pages. Have
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fun, and good luck.
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The term "laws of war" refers to the rules governing the actual
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conduct of armed conflict. This idea that there actually exists rules that
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govern war is a difficult concept to understand. The simple act of war in
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and of itself seems to be in violation of an almost universal law
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prohibiting one human being from killing another. But during times of war
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murder of the enemy is allowed, which leads one to the question, "if murder
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is permissible then what possible "laws of war" could there be?" The
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answer to this question can be found in the Charter established at the
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International Military Tribunals at Nuremberg and Tokyo:
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Crimes against Humanity: namely, murder, extermination,
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enslavement, deportation, and other inhumane acts committed against any
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civilian population, before or during the war, or persecutions on
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political, racial or religious grounds in execution of or in connection
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with any crime within the jurisdiction of the Tribunal, whether or not in
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violation of the domestic law of the country where perpetrated. Leaders,
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organizers, instigators, and accomplices participating in the formulation
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or execution of a common plan or conspiracy to commit any of the foregoing
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crimes are responsible for all acts performed by any persons in execution
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of such plan.1
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The above excerpt comes form the Charter of the Tribunal Article 6 section
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C, which makes it quite clear that in general the "laws of war" are there
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to protect innocent civilians before and during war.
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It seems to be a fair idea to have such rules governing armed conflict
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in order to protect the civilians in the general location of such a
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conflict. But, when the conflict is over, and if war crimes have been
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committed, how then are criminals of war brought to justice? The
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International Military Tribunals held after World War II in Nuremberg on 20
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November 1945 and in Tokyo on 3 May 1946 are excellent examples of how such
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crimes of war are dealt with. (Roberts and Guelff 153-54) But, rather than
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elaborate on exact details of the Tribunals of Nuremberg and Tokyo a more
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important matter must be dealt with. What happens when alleged criminals of
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war are unable to be apprehended and justly tried? Are they forgotten
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about, or are they sought after such as other criminals are in order to
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serve justice? What happens if these alleged violators are found residing
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somewhere other than where their pursuers want to bring them to justice?
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How does one go about legally obtaining the custody of one such suspect?
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Some of the answers to these questions can be found in an analysis of how
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Israel went about obtaining the custody of individuals that it thought to
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be guilty of Nazi War Crimes. Not only will one find some of the answers
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to the previously stated questions, but also one will gain an understanding
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of one facet of international law and how it works.
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Two cases in specific will be dealt with here. First, the extradition
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of Adolf Eichmann from Argentina, and second, the extradition of John
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Demjanjuk from the United States of America. These cases demonstrate two
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very different ways that Israel went about obtaining the custody of these
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alleged criminals. The cases also expose the intricacy of International
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Law in matters of extradition. But, before we begin to examine each of
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these cases we must first establish Israel's right to judicial processing
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of alleged Nazi war criminals.
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To understand the complications involved in Israel placing suspected
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Nazi war criminals on trial, lets review the history of Israel's situation.
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During World War II the Nazis were persecuting Jews in their concentration
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camps. At this time the state of Israel did not exist. The ending of the
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war meant the ending of the persecution, and when the other countries
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discovered what the Nazis had done Military Tribunals quickly followed.
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Some of the accused war criminals were tried and sentenced, but others
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managed to escape judgement and thus became fugitives running from
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international law. Israel became a state, and thus, some of the Jews that
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survived the concentration camps moved to the state largely populated by
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people of Jewish ancestry. Israel felt a moral commitment because of its
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large Jewish population and set about searching for the fugitive Nazi war
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criminals.
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The situation just described is only a basic overview of what
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happened. The state of Israel views itself as the nation with the greatest
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moral jurisdiction for the trial of Nazi war criminals, and other states
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around the Globe agree with Israel's claim. (Lubet and Reed 1) Former
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Israeli Attorney General Gideon Hausner was interested in confirming Israel
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as the place for bringing to justice all those suspected of genocide of
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Jews. Hausner sought to confirm Israel's status by proposing to the United
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States that they extradite Bishop Valerian Trifa to Israel for trial as a
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war criminal. Israel was reluctant to support Hausner's proposal, which
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resulted in delaying the extradition process and thus gave Trifa the time
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needed to find a country willing to give him residency. Portugal granted
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Trifa residency and thus Hausner's proposal was in vain.
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Israel, sometime after losing their opportunity of obtaining Trifa,
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decided that Hausner's idea of establishing Israel as the place to bring
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Nazi war criminals to trial was a good one, which lead them to seek the
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extradition of John Demjanjuk from the United States. The Wall Street
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Journal reported:
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Israel's request for the extradition of a suspected Nazi war criminal
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living in the U.S. . . appears to be a test case that could determine
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whether Israel pursues other suspects . . . The decision to seek the
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extradition of Mr. Demjanjuk follows months of negotiations between U.S.
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and Israel officials about specific cases and the broader question of
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whether Israel wanted to go through with extraditions requests . . . Gideon
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Hausner, who prosecuted Eichmann, said Israel's decision to ask the U.S. to
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extradite Nazis for trial [in Jerusalem] is an important step. "This
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creates the opportunity for at least tacit admission of Israel's special
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position with regard to crimes against Jews anywhere in the world," he
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says.2
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After much negotiations the United States arrested Demjanjuk in November of
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1983. On April 15, 1985 United States District Judge Frank Battisti ruled
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in favor of Demjanjuk's extradition. After the Sixth Court of Appeals
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affirmed Battisti's ruling and the Supreme Court denied Demjanjuk's
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petition for certiorari, Demjanjuk arrived in Israel on February 27, 1986.
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(Lubet and Reed 3) It would appear, from what has been presented, that the
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extradition process is simple. But this conclusion is not correct because
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there are a few issues that make extradition problematic. One such issue
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that complicates the process of extradition is that of identification and
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proof.
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Leading Nazi war criminals such as Adolf Eichmann and Klaus Barbie
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offer no real dispute in the matter of identification, but war criminals
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that were not so prominent leave room to question whether they truly are
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who they are accused of being. The type of criminal cases that most of us
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are familiar with are those that attempt to prove whether a defendant
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committed a particular act or acts. Extradition cases involve two distinct
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questions:
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1) The prosecution must prove that the defendant is actually the person
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sought by the requesting country.
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2) The court must find probable cause to believe that the accused committed
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the offense.3
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In Demjanjuk extradition case Judge Battisti concluded that
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identification "requires only a threshold showing probable cause."4 How
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this threshold is achieved can be done through the aid of a photograph
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comparison with the accused, fingerprints, or an eyewitness.
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In the matter of probable cause the appellate court used the
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formulation of "any evidence warranting the finding that there was
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reasonable ground to believe the accused guilty."5 Furthermore it has been
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indicated that the extradition process incorporates these rules:
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Probable cause to support extradition may be based entirely on
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hearsay, and the defendant cannot present exculpatory evidence, which the
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presiding judge would have to weigh or balance.6 It must be kept in mind
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that the extradition process does not attempt to prove the innocence or
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guilt of the accused but rather whether the individual is whom he or she is
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accused of being. The accuracy of the identification is an issue that is
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resolved during the course of the actual trial, and not in the extradition
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process. Simply identifying Demjanjuk does not make him extraditable, the
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requirement of criminality has to be met as well.
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Concerning the requirement of criminality the Stanford Journal of Law
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said the following:
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The rule of dual criminality generally provides that extradition
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may be had only for acts extraditable by treaty and considered criminal in
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both the requested and requesting jurisdictions...Since sovereigns rarely
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define crimes using identical phrases and since treaty terms may be
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ambiguous or out of date, a substantial jurisprudence has developed
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interpreting and applying the requirement of criminality.7
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In the case of Demjanjuk Israel was charging him with "the crimes of
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murdering Jews, [which are] offenses under sections 1 to 4 of the Nazi and
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Nazi Collaborators (Punishment) Law."8 The precise phrase, "murdering
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Jews," is not mentioned in the United States-Israel Extradition Treaty,
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also the previously mentioned phrase does not exist in current American
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penal statute. But, according to the American rule of dual criminality a
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way away around this small detail can be found:
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The law does not require that the name by which the crime is
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described in the two countries shall be the same; nor that the scope of the
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liability shall be coextensive, or, in other respects, the same in the two
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countries. It is enough if the particular act charged is criminal in both
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jurisdictions.9 It is clear to see that the previously mentioned American
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rule on dual criminality gives the United States the option of recognizing
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"murdering Jews" as simply to mean "murder." Therefore, the requirement of
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dual criminality in the case of John Demjanjuk is satisfied.
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The issues of identification and probable cause, along with the
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requirement of criminality help to demonstrate the complexities involved in
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the extradition process. Two more brief issues to consider regarding
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Demjanjuk's extradition are the questions of extraterritoriality and
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extratemporality.
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Extraterritoriality in relation to the case of Demjanjuk would have
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only been an issue had another country along with Israel requested the
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extradition of John Demjanjuk. In the case where two countries are
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requesting the same individual the Secretary of State would have to weigh
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the various forums' contacts in order to determine which request to honor.
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Israel has unofficially been recognized as the desirable nation for
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bringing Nazi war criminals to trial. Germany, Poland, and the U.S.S.R.,
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for example, all waived their potential requests for the extradition of
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Eichmann in favor of trial by Israel. (Lubet and Reed 44-45)
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In the matter of extratemporality, the trial judge presiding over the
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Demjanjuk case ruled that murder was not barred by lapse of time because
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the United States recognizes no statue of limitations for that offense.
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(Lubet and Reed 58) Even if murder were to be barred by lapse of time
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Demjanjuk could still have been extradited because of his misrepresentation
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of his wartime activities during his immigration process. Demjanjuk could
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have then been viewed as fleeing from justice and thus no statute of
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limitations would have been extended to him.
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The extradition process of Demjanjuk because it only involves two
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countries would appear to be an easy process to complete. Even when
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countries are cooperative, as were the United States and Israel, concerning
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extradition it is clear that issues such as identification and probable
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cause, requirement of criminality, extraterritoriality, and
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extratemporality demonstrate how complex the process of extradition can be.
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Certainly, Israel could have avoided the complexities and length of time
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involved in extradition and gone about obtaining Demjanjuk the same way
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they obtained Eichmann, but that method, although it was effective, caused
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a bit of a commotion in the international community.
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Adolf Eichmann of the Reich Security Main Office was the alleged
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strategist behind the so-called "final solution of the Jewish question."10
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There have been roughly six million murders attributed to him, so it is
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easy to understand why concentration camp survivors spent fifteen years
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searching for him. Perseverance paid off when Eichmann was found in
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Argentina living under an assumed name. A group of volunteers, some of
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whom were Israeli citizens acting without the support or direction of the
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Israeli Government, removed Eichmann from Argentina and brought him to
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Israel where they turned him over to government so that a trial could take
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place. So far it can be seen that this method of extradition is quicker
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and less complicated than the Demjanjuk method of extradition. There is no
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need for identification or probable cause, requirement of dual criminality,
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extraterritoriality, or extratemporality. The process is as simple as it
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sounds; Eichmann was found and Eichmann was removed. Although the method
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for extradition of Eichmann was quick it did result in leaving Argentina
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very upset.
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Argentina felt that Israel's exercise of authority upon Argentine
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territory was an infringement on its sovereignty. Israel defended itself
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by claiming that Eichmann left Argentina voluntarily, and the Israeli
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Government claimed that the group that removed Eichmann was working under
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its own direction and not that of the Israeli Government. Israel even went
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so far as to issue a letter expressing their regrets for the actions taken
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by the free acting group:
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If the volunteer group violated Argentine law or interfered with
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matters within the sovereignty of Argentina, the Government of Israel
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wishes to express its regrets.11
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Argentina's rejoined that even if Eichmann left Argentina on his own
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free will that Israel should be responsible for the actions of the private
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persons who were Israeli citizens. One simple point to be made here in
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reply to Argentina's argument is that only some of the persons involved
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with the Eichmann removal were Israeli citizens. There is a small
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possibility that the persons who were Israeli citizens were only mere
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accessories to the act, guilty of only marginal involvement. Furthermore,
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the responsibility of states in connection with the acts of private persons
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is predicated upon territorial jurisdiction and not the bond of
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nationality. (Svarlien 136) Israel has no jurisdiction within Argentina
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and thus has no power over the actions of its citizens within Argentina's
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borders. The sole power of jurisdiction in this matter lays in the hands
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of Argentina, and since the claim that Eichmann left voluntarily has
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neither been shown to be false or expressly denied it appears that no real
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Argentine law has been violated.
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Argentina went on further to argue that Israel's note expressing their
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regret in the matter of Eichmann's removal can be viewed as an apology,
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which constitutes an admission of guilt. The phrasing of the note of
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regret sent by Israel is embedded clearly with conditional terms, which
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makes it difficult, if not impossible, to derive an admission of guilt from
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it. At no time in the note does Israel praise or approve the volunteer
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group actions, and neither does Israel try to justify what was done. If
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anything can clearly be derived from the note it is that Israel in fact
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does regret the actions of the volunteer group, and possibly even condemns
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their behavior. But, Argentina's claim that the note is an admission of
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guilt is hardly an argument worth pursuing. Argentina's strongest argument
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against the abduction of Eichmann is that Israel chose to detain Eichmann
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after he had been captured.
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Argentina claimed that even though the abduction of Eichmann was an
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act committed by private citizens, the Israeli Government's decision to
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detain and try Eichmann made them an accessory. This point is Argentina's
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strongest argument because it is known that the jurisdiction of the court
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reaches only as far as the borders of the state of which it is in. If the
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court had no jurisdiction in the nation of the original seizure, then by
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what right does that court have to detain and try the accused? The only
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problem with Argentina's final argument on the Eichmann abduction is that
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proof of forcible seizure or arrest must be presented. Since the abductors
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were acting of their own free will it is doubtful that they arrested
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Eichmann in the name of Israel. It is, however, quite possible that the
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abductors used some force in the removal of Eichmann, but again, use of
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force must be proved to give validity to Argentina's final argument.
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Argentina filed a complaint with the United Nations Security Council
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under Article 33 claiming that Israel violated international law, which
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created an atmosphere of insecurity and distrust jeopardizing the
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preservation of international peace. (Silving 312) After the presentation
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of arguments and debates before the Security Council the follow
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declarations were made:
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violation of the sovereignty of a Member State is incompatible with
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the Charter of the United Nations; repetition of acts such as that giving
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rise to this situation would involve a breach of the principles upon which
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international order is founded creating an atmosphere of insecurity and
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distrust incompatible with the preservation of peace. The "adjudicative"
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part of the resolution.
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1. Declares that acts such as that under considerations, which affect the
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sovereignty of a Member State and therefore cause international friction,
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may, if repeated, endanger international peace and security;
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2. Requests the Government of Israel to make appropriate reparation in
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accordance with the Charter of the United Nations and rules of
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international law.12 The important part of the resolutions that the United
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Nations reached is the phrase "if repeated." It is almost as if the United
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Nations said, "this time we will let the infringement go, but next we will
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take action."
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Considering the unique character of the crimes attributed to Eichmann,
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and since such crimes are, for the most part, universally condemned,
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Israel's breach of international law seems to have been tolerated. It is
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quite possible that had the person who was removed been someone other than
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Eichmann the result of the United Nations Security Council would have been
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much different.
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The two cases of extradition expose the complexities of international
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law. In the case of Demjanjuk, Israel went about the extradition process
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in the correct manner, which resulted in the issues of identification and
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probable cause, requirement of criminality, extraterritoriality, and
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extratemporality. When Israel went about obtaining Adolf Eichmann the
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issues dealt with were ones resulting from the method of Eichmann's
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apprehension. Eichmann's removal from Argentina brought to light the issue
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of violation of a country's sovereignty. In both cases because the accused
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were being charged with Nazi war crimes, specifically genocide, there cases
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seem to get a little leeway and are not dealt with as extremely as other
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cases might be. Nevertheless, their cases demonstrate how one goes about
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bringing to justice those charged with violating the laws of war.
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FOOTNOTES
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1 Roberts, Adam, and Richard Guelff, ed. Documents of the Laws of
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War. (Oxford: Clarendon Press, 1982.) 155.
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2 Lubert, Steven, and Jan Stern Reed. "Extradition of Nazis from
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the United States to Israel: A Survey of Issues in
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Transnational Criminal Law." Stanford Journal of
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International Law. 23 (1986): 3.
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3 Lubert, Steven, and Jan Stern Reed. "Extradition of Nazis from
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the United States to Israel: A Survey of Issues in
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Transnational Criminal Law." Stanford Journal of
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International Law. 23 (1986): 15.
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4 Lubert, Steven, and Jan Stern Reed. "Extradition of Nazis from
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the United States to Israel: A Survey of Issues in
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Transnational Criminal Law." Stanford Journal of
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International Law. 23 (1986): 15.
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5 Lubert, Steven, and Jan Stern Reed. "Extradition of Nazis from
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the United States to Israel: A Survey of Issues in
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6 Lubert, Steven, and Jan Stern Reed. "Extradition of Nazis from
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7 Lubert, Steven, and Jan Stern Reed. "Extradition of Nazis from
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8 Lubert, Steven, and Jan Stern Reed. "Extradition of Nazis from
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9 Lubert, Steven, and Jan Stern Reed. "Extradition of Nazis from
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10 Silving, Helen. "In Re Eichmann: A Dilemma of Law and Morality"
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11 Silving, Helen. "In Re Eichmann: A Dilemma of Law and Morality"
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The American Journal of International Law 55 (1961):318.
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12 Silving, Helen. "In Re Eichmann: A Dilemma of Law and Morality"
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The American Journal of International Law 55 (1961):313.
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