Israel and retroactive laws

Carawaystick

We were talking in work today about the doc on rté the other night about the extermination camp survivor tracking down a nazi woman.

In my lifetime, I remember several nazis getting sent to Israel to be tried for WW2 crimes.
But WW2 happened before Israel existed.
Now I know there was some retroactive-ness with establishing the genocide crimes at the Nuremberg trials, but why does (apart from a huge amount of guilt from modern germans) Israel get to try these nazis?

The nazi's killed more than just people of jewish ancestry, such as romani or gay people, or just common or garden political opponents.

I presume there is some ostensible reason for these extraditions?

meathstevie

You'll find that extraditions weren't always the procedure but abductions and forcible removals have been used as well. Israel didn't exist when the Nazi's were in power but since there's no expiry date on murder it can be argued that a court could claim jurisdiction even before the inception date of the court.

Say for example, an Irish court could have claimed jurisdiction for a murder in 1917 if evidence would have come to light in1924 and the case went to trial in 1925.

conorh91

Carawaystick wrote: »

Now I know there was some retroactive-ness with establishing the genocide crimes at the Nuremberg trials, but why does (apart from a huge amount of guilt from modern germans) Israel get to try these nazis?

Universal jurisdiction.

As for retroactive laws, there is no absolute ban on retroactive laws, even in criminal law.

There can be situations, perhaps not in Irish law, but in international law, where the rule against ex post facto prosecutions does not apply where the prohibition of the guilty act was foreseeable to the Accused.

Read up on the Eichmann trial if you get a chance, it's interesting stuff.

Manach

AFAIR there was rather an interesting debate on the morality of retroactive laws in the realm of international law in terms of WWII crimes. This boiled down to whether Natural law doctrines which now underpin modern Human rights law would allow such trials as the Natural prohibition on genocide always existed. Whilst the more traditional legal scholars were in favour of retroactive laws to try the accused.

Carawaystick

meathstevie wrote: »

Say for example, an Irish court could have claimed jurisdiction for a murder in 1917 if evidence would have come to light in1924 and the case went to trial in 1925.

I can accept that,
Iff the person had some connection to Ireland, or the dead person had some connection to Ireland.

But those killed by the nazis had little or no connection to Palestine during the holocaust.
Especially those who had no connection to Jewry.



@conorh91 Wouldn't universal jurisdiction mean the germans should deal with it?
(or french or paraguyans etc)


My point(s) is(are) that Israel didn't exist when these awful killings happened. They didn't happen near the territory of Israel. The people killed had no connection to the territory of Israel.

I haven't read the Eichmann stuff, but my (handwavey) understanding was that the Nuremberg trials were over by the end of 1947, while Israel didn't exist until 1948.

conorh91

Carawaystick wrote: »

@conorh91 Wouldn't universal jurisdiction mean the germans should deal with it?
(or french or paraguyans etc)

Possibly, but I haven't researched it.

Why would Universal Jurisdiction seem to prefer Germany over Israel?

I can see why Germany would have been reluctant to try an accused Nazi war criminal, later in the 20th century, but I don't understand the objection to universal jurisdiction.

My point(s) is(are) that Israel didn't exist when these awful killings happened. They didn't happen near the territory of Israel. The people killed had no connection to the territory of Israel.

So?

They had no connection to, or recognition of, the Allied Zones or the Bonn Republic either.

I don't believe universal jurisdiction sets down an order of preference in the manner you believe it does.

Carawaystick

conorh91 wrote: »

Why would Universal Jurisdiction seem to prefer Germany over Israel?

Maybe I'm missing something obvious here, but the killers lived in Germany
the Killees lived in Germany. The Killings happened in "Germany"
Testimony would have been from residents of "Germany" i.e. extermination camp survivors.
Something roughly equivalent to "Germany" existed while the genocide went down;
"Israel" didn't exist when the genocide happened. The genocide consisted of lets say 3 or more ethnic groups ( very roughly, and I know sexuality isn't an ethnic group) descendants of people identified as jews, gay people, romani people.

Romani people have a geographic affinity to the Black Sea areas of Europe, but no nazi's ( or accused nazi's yada yada presumption of innocence etc etc) have been sent to Bulgaria or Romania that I can recall.

I just thought that a country who perpetrated a couple of genocides in the last century or so, and who puts itself about in the world as a paragon of virtue would deal with it's own killers.
Or would deal with it's neighbour's (france) genocidal issues sooner than those of a country thousands of km and on another continent away

Or even the country the vast majority of it's guest workers come from

conorh91

Carawaystick wrote: »

Maybe I'm missing something obvious here, but the killers lived in Germany
the Killees lived in Germany. The Killings happened in "Germany"
Testimony would have been from residents of "Germany" i.e. extermination camp survivors.
Something roughly equivalent to "Germany" existed while the genocide went down;
"Israel" didn't exist when the genocide happened.

And again, short of actually going and renting a book on the topic, my understanding is that the question of Universal Jurisdiction does not turn on the above points.

If the above were the deciding factors, then UJ wouldn't be required in the first place.

It's OK to call them "victims" instead of "killees", by the way.

...Regardless of your opinions on "Jewry" which I'm sure you're perfectly keen to share with anyone who will listen.

That's not an invitation.

Carawaystick

conorh91 wrote: »

my understanding is that the question of Universal Jurisdiction does not turn on the above points

Can you outline your understanding of universal jurisdiction?

conorh91

Carawaystick wrote: »

Can you outline your understanding of universal jurisdiction?

ok, I understand it to refer to jurisdiction in the trial of an Accused, in respect of some international crime, where the Accused is present in a state, despite not having been accused of any crime in that State.

As far as I am aware, the guilty act has to be self-evidently a guilty act, even if not codified as such in the country of its commission, and it has to be a crime against humanity, as opposed to a crime against a person, or property.

I'm not sure why I am even explaining my understanding of the law on UJ to you. You are the one who is attempting to make out some issue with the trials.

So why don't you go right ahead and do that, with reference to international law, and see whether people agree with you or not.

Victor

I don't know the particular circumstances of those particular trials, but some factors would have been
* willingness to try the accused - financial and political implications, as much cold war as anything else
* location / custody of the accused and
* the location of witnesses.

There may have been other factors like the governing law - it might have been easier to get a conviction in Israel than Germany.

Carawaystick wrote: »

Can you outline your understanding of universal jurisdiction?

Correspondingly, can you outline your understanding of universal jurisdiction?

Carawaystick

Victor wrote: »

Correspondingly, can you outline your understanding of universal jurisdiction?

I haven't any understanding of universal jurisdiction.

Which is why I'm just wondering why the killers of certain residents of "Germany" by "Germans" in "Germany" are extradited to a country that didn't exist when the crimes occurred.

Victor

Carawaystick wrote: »

I haven't any understanding of universal jurisdiction.

Which is why I'm just wondering why the killers of certain residents of "Germany" by "Germans" in "Germany" are extradited to a country that didn't exist when the crimes occurred.

Don't you mean the residents of quite a few countries by Nazis and their associates, mostly in Poland, under the General Government?

The BRD didn't have the sites, the witnesses or the documents - this would have made convictions harder. It may have engaged in a certain amount of hand wringing.

The DDR had the documents and probably didn't bother with the niceties of trials and went straight from identification to execution. It likely avoided publicity.

Poland (and a few other countries) had the sites and probably didn't bother with the niceties of trials and went straight from identification to execution. It likely avoided publicity.

Israel had lots of witnesses. It went very hard on the publicity.

the world wonders

Carawaystick wrote: »

Testimony would have been from residents of "Germany" i.e. extermination camp survivors.
Something roughly equivalent to "Germany" existed while the genocide went down;
"Israel" didn't exist when the genocide happened.

The Irish Free State came into existence on December 6th 1922 -- it did not exist before then. If you murdered someone in Ireland on December 5th 1922 then you could still be arrested and tried for it in a Free State court on December 7th 1922, despite the fact that this state did not exist when you committed your crime.

Retroactivity does not mean what you think it means.

Ken.

the world wonders wrote: »

The Irish Free State came into existence on December 6th 1922 -- it did not exist before then. If you murdered someone in Ireland on December 5th 1922 then you could still be arrested and tried for it in a Free State court on December 7th 1922, despite the fact that this state did not exist when you committed your crime.

Retroactivity does not mean what you think it means.

Just a quick question, in your scenario could the murderer have been brought to London and tried for the crime?

the world wonders

ken wrote: »

Just a quick question, in your scenario could the murderer have been brought to London and tried for the crime?

Yes, if the United Kingdom had a law allowing it universal jurisdiction for murder

Victor

ken wrote: »

Just a quick question, in your scenario could the murderer have been brought to London and tried for the crime?

Cases are normally tried where the main events occur. In the Irish context, minor court cases are tried in the local District Court, more serious crimes in the relevant Circuit Court or High Court, i.e. if someone is murdered in Cork, the accused is likely to be tried in Cork, unless some issue comes up. In practice, many serious case end up in Dublin.

CIARAN_BOYLE

France has a law that states they can prosecute murder of a french man anywhere in the world

The Israelis have this law, you can find it at the link below by which they claim jurisdiction for all crimes which took part during the nazi regime against jews.

https://www.jewishvirtuallibrary.org/jsource/Politics/nazilaw.html

234

the world wonders wrote: »

The Irish Free State came into existence on December 6th 1922 -- it did not exist before then. If you murdered someone in Ireland on December 5th 1922 then you could still be arrested and tried for it in a Free State court on December 7th 1922, despite the fact that this state did not exist when you committed your crime.

Retroactivity does not mean what you think it means.

Yes, but the issue is complicated by the universal jurisdiction point. In the murder example the act was a crime both in the UK and the Free State so there is no question of a new crime being created.

However, with the Nazis they were tried (both in Israel and Nuremberg) for acts that were not criminal when they committed them as Germany sanctioned what they did.

At Nuremberg they were tried for various crimes against humanity; a concept which had absolutely no legal substance pre-Nuremberg. Similarly, Eichmann was tried in Israel under a specific Israeli statute for things such as crimes against humanity, crimes against the Jewish people.

So there is a retrospectivity problem (even setting aside the UJ point) in that the acts which were considered punishable by the Jerusalem District Court were not crimes when they were carried out.

Aside for OP: UJ is one basis in international law by which a state can claim jurisdiction for a crime that did not occur within it's territory. The idea is that some crimes affect the entire of humanity and therefore any state at all can claim jurisdiction to try them. The classic example is piracy. There are many who would dispute that there was any UJ for genocide before 1945.

Peregrinus

ken wrote: »

Just a quick question, in your scenario could the murderer have been brought to London and tried for the crime?

Ironically, no. The courts that sit in London are the courts of England and Wales. They wouldn't normally try a crime commited in another jurisdiction.

When there is a change of legal regime, as there was in Ireland in 1922, that doesn't "wipe the slate clean" with regard to all crimes not as yet convicted. Why would it? The rule of law continues; it's just the governmental structures which are changing.

The issue with Israel trying war crimes from the Second World War is not really that the crimes were committed before the state of Israel came into being. (After all, they were committed before the Federal Republic of Germany came into being.) It's just that the crimes seem to have little connection with the State of Israel.

But, as others have said, there is a class of crimes for which universal jurisdiction is asserted. Piracy is the classic example; it has long been accepted that any state can try piracy committed on the high seas. And, since the Nuremburg Tribunal, war crimes and crimes against humanity are in in this class. (And we can all thing of sound reasons of policy and principle why this should be so.)

Israel doesn't have to prosecute these crimes; they could be prosecuted in any state. But Israel has an interest in doing so, and is prepared to devote resources to doing so, and we know why this is so.

Peregrinus

234 wrote: »

However, with the Nazis they were tried (both in Israel and Nuremberg) for acts that were not criminal when they committed them as Germany sanctioned what they did.

Actually, the acts mostly were criminal at the time. Germany did have laws against murder, etc, and crimes don't cease to be crimes merely because they are committed by, or with the approval of, a government official, or are committed as a matter of government policy.

Plus, of course, many of the acts took place in countries other than Germany.

234

Peregrinus wrote: »

Actually, the acts mostly were criminal at the time. Germany did have laws against murder, etc, and crimes don't cease to be crimes merely because they are committed by, or with the approval of, a government official, or are committed as a matter of government policy.

Plus, of course, many of the acts took place in countries other than Germany.

Post-Enabling Act the state organised mass-killings wouldn't have qualified as murder.

Peregrinus

234 wrote: »

Post-Enabling Act the state organised mass-killings wouldn't have qualified as murder.

Nitpick: Only if you can show that the mass-killings were sanctioned by the Fuhrer. Which, of course, we all know they were but actual evidence of his personal knowledge is surprisingly hard to come by.

But let's ignore that point; pretend we have evidence. At least with respect to acts committed within Germany, does the Enabling Act give perpetrators a defence?

It does presnent an interesting problem. Basically, the Enabling Act sought to enshrine the Fuhrerprinzip in the German legal system; the claim that, in a National Socialist state, the Will of the Leader is the highest law, antecedent and superior to all legislation. Hence, if the Fuhrer's will was that your house be seized and awarded to some party official, the seizure of your house did not involve theft, assault, etc despite the laws dealing with such matters; the laws gave way to the Fuhrerprinzip.

The conventional analysis of this was that what Germany actually did here was to abrogate the rule of law; the notion that the state, as well as the citizens, is bound by the law and must act within it.

Thus from 1933 to 1945, Germany was a country without the rule of law. They had the appearances and trappings of law, but not the essence of law. Both the party and the state, under the direction of the Leader, could do anything at all, without any kind of legal constraint.

Thus to plead the Enabling Act as a defence is to say "you can't prosecute me for what I did, because it wasn't against the law, because there was no law in Germany". But of course acknowledging that there was no law in Germany at the time just underpins the case for asserting universal jurisdiction. Those in power can'[t be allowed to escape their legal obligations by abolishing all law. If we accept that, then we too are complicit, because we incentivise and reward the destruction of the rule of law. In cases where the Enabling Act might be pleaded, the assertion of a universal jurisdiction seems to me especially strongly justifiable.

234

Peregrinus wrote: »

Thus to plead the Enabling Act as a defence is to say "you can't prosecute me for what I did, because it wasn't against the law, because there was no law in Germany". But of course acknowledging that there was no law in Germany at the time just underpins the case for asserting universal jurisdiction. Those in power can'[t be allowed to escape their legal obligations by abolishing all law. If we accept that, then we too are complicit, because we incentivise and reward the destruction of the rule of law. In cases where the Enabling Act might be pleaded, the assertion of a universal jurisdiction seems to me especially strongly justifiable.

Nobody is going to deny that that is a compelling argument and that the morally correct result was reached. However, the claim to universal jurisdiction was not based on any commonly accepted norm of the time. So while we might be able to point to an absence of the rule of law in Nazi Germany (certainly in the sense that Fuller would use it) that doesn't automatically equate with a right for other states to abandon their own adherence to the rule of law in prosecuting others.

Nazi Germany presents an extreme example, but there are certainly states in the modern world where the rule of law is either absent or very weak. The idea that the West could then seize itself of jurisdiction to prosecute things that we would consider criminal raises rule of law concerns of another kind.

An easily imaginable example would some kind of central African failed state which carried out systematic FGM; morally reprehensible but probably not currently something that the international community could consider sufficient to ground claim based on universal jurisdiction. The rule of law would be similarly absent.

Respect for post-Westphalian conceptions of state sovereignty mean that we have too hold back from what might be a morally preferable development.

the world wonders

Yes but the Enabling Act also says this:

Laws enacted by the Reich government shall be issued by the Chancellor and announced in the Reich Gazette.

Hitler never issued an official decree legalizing the Holocaust, in fact he took great care to stay at arms length and not leave any paper trail. Even the Wannsee Conference involving his top deputies used euphemisms like "deportation", "evacuation" and "final solution".

Peregrinus

Well, except we haven't held back from it, as the example of how we dealt with Nazi Germany indicates.

Nazi Germany was an extreme example - probably the only state in modern times formally to abandon the rule of law. Plus, it's worth remembering, the bulk of the acts that formed the basis of the prosecutions at Nuremburg were committed outside Germany, and the notion that a state can abandon the rule of law and then use that as an excuse to escape legal sanction for everything they do throughout the world is pretty offensive. If we weren't prepared to accept that as a set of circumstances in which the assertion of universal jurisdiction was a proper response, what would we accept?

You assume that states which asserted universal jurisdiction were themselves abandoning the rule of law. I remain to be persuaded of that. The assertion of universal jurisdiction is not in itself contrary to the rule of law; it has been asserted since forever with respect to piracy, for example.

As regards a state which hasn't intentionally abandoned the rule of law, but is just too weak to uphold it, I think the International Criminal Court is in part a response to that phenomenon. The ICC has no jurisdiction if the state concerned is willing and able to prosecute the offence; it only steps in if there is no state which will do this.

Victor

So, what of incidents that occur in non-state territories? The only ones I am aware of ware Antarctica, Western Sahara and Palestine. There will be the very occasional volcanic island or sand bar that will crop up.

Palestine does have a semi-functioning justice system, albeit one that is subject to the whims of Hamas, Fatah and the Israeli military law. The other two don't really have enough people to have a lot of crime.

Of course, international law will apply.

234

Peregrinus wrote: »

Well, except we haven't held back from it, as the example of how we dealt with Nazi Germany indicates.

Nazi Germany was an extreme example - probably the only state in modern times formally to abandon the rule of law. Plus, it's worth remembering, the bulk of the acts that formed the basis of the prosecutions at Nuremburg were committed outside Germany, and the notion that a state can abandon the rule of law and then use that as an excuse to escape legal sanction for everything they do throughout the world is pretty offensive. If we weren't prepared to accept that as a set of circumstances in which the assertion of universal jurisdiction was a proper response, what would we accept?

You assume that states which asserted universal jurisdiction were themselves abandoning the rule of law. I remain to be persuaded of that. The assertion of universal jurisdiction is not in itself contrary to the rule of law; it has been asserted since forever with respect to piracy, for example.

As regards a state which hasn't intentionally abandoned the rule of law, but is just too weak to uphold it, I think the International Criminal Court is in part a response to that phenomenon. The ICC has no jurisdiction if the state concerned is willing and able to prosecute the offence; it only steps in if there is no state which will do this.

OK, but we need to separate the assertion of UJ from the actual crime in respect of which it is asserted.

The assertion by one state of universal jurisdiction, to try an act which was not criminal in the territory in which it was committed, is a particularly obnoxious act. This is what happened with Eichmann and Nuremberg.

Piracy is different in that all states agree that it is a crime. Now genocide is accepted as a crime in respect of which UJ can be asserted. The reason that UJ is limited in its application is because we recognise that there are more appropriate bases on which jurisdiction should be asserted (territory, nationality, passive personality, etc).

An extreme example that shows the potential rule of law concerns with this area would be marijuana. Say that some countries decided that smoking marijuana was an offence in respect of which UJ could be asserted. There is no common norm in international law stating this at the moment, even if one might develop in the future (obviously unlikely). So you could see police arresting people as they got off their return flights from Amsterdam. Now the rule of law concerns and concerns over respect for the sovereign equality of states are evident.

Setting aside issues of extremity, this is not an in-apt analogy to the Nazi situation.

Beano

234 wrote: »

...

The assertion by one state of universal jurisdiction, to try an act which was not criminal in the territory in which it was committed, is a particularly obnoxious act. This is what happened with Eichmann and Nuremberg....

Just so we are absolutely clear here, you think the trial of Adolf Eichmann was an obnoxious act? Am i reading that correctly?

234

Beano wrote: »

Just so we are absolutely clear here, you think the trial of Adolf Eichmann was an obnoxious act? Am i reading that correctly?

No, and the quoted text clearly doesn't say that.

This has been a very interesting exchange so far where we have managed to debate an issue involving Nazis without descending into some reductionist "anything that hurts Nazis is a good thing" rhetoric.

If you want to discuss the merits of Eichmann's trial then I would be more then happy to, but please don't take one work from my post and try to make something inflammatory out of it.

Beano

234 wrote: »

No, and the quoted text clearly doesn't say that.

This has been a very interesting exchange so far where we have managed to debate an issue involving Nazis without descending into some reductionist "anything that hurts Nazis is a good thing" rhetoric.

If you want to discuss the merits of Eichmann's trial then I would be more then happy to, but please don't take one work from my post and try to make something inflammatory out of it.

you will have to excuse me as i'm probably a bit thick but perhaps you could explain what those two sentences (not one word as you seem to think) are saying?

234

Beano wrote: »

you will have to excuse me as i'm probably a bit thick but perhaps you could explain what those two sentences (not one word as you seem to think) are saying?

Where there is a state that would be properly seized of jurisdiction to try a crime, then the assertion of universal jurisdiction represents an erosion of the basis norm of sovereign equality in international law. This becomes "obnoxious" - as I termed it earlier - when universal jurisdiction is asserted in respect of an act that was not criminal in the state in which it was completed.

Setting aside the fact that Adolf Eichmann was a morally reprehensible individual, his kidnapping by Israel and his trial by a court which did not exist at the time of the acts in question, in a state which did not exist at the time of the acts in question, for crimes that did not exist at the time in question, raises a whole host of rule of law concerns.

This doesn't mean that his trial was a bad thing, just that if we adopt a more traditional legal understanding of international law - drawing from our familiarity with state law - there are problems. This can be mitigated by allowing for the fact that international law is not 'real' law but more like a blend of strongly asserted political norms that are eventually codified into quasi-legal standards.

Victor

234 wrote: »

The assertion by one state of universal jurisdiction, to try an act which was not criminal in the territory in which it was committed, is a particularly obnoxious act. This is what happened with Eichmann and Nuremberg.

And killing millions of people was a much more obnoxious act, that trumps the legal methods used in the conviction.

Carawaystick

Victor wrote: »

So, what of incidents that occur in non-state territories? The only ones I am aware of ware Antarctica, Western Sahara and Palestine. There will be the very occasional volcanic island or sand bar that will crop up.

Palestine does have a semi-functioning justice system, albeit one that is subject to the whims of Hamas, Fatah and the Israeli military law. The other two don't really have enough people to have a lot of crime.

Of course, international law will apply.

There's probably parts of Somalia ( Puntland etc), Iraq ( the islamic state parts) and Afghanisan ....


One of my main points was that it wasn't just Jews killed in extermination camps, but there seems to be no stomach for the fight to prosecute the killings of Gypsies or Gay people.

Regarding legality in Germany, if the nazi era laws applied and it wasn't murder, then surely Germany could not extradite people for something that wasn't a crime?

I remembered after I started this thread, that Pinochet was wanted by Spain and got t arrested in England, for killing/torture, and the english&welsh (if not the british) judiciary ruled he should be extradited to Spain, until Jack Straw thought Pinochet was too sick to stand trial....

Which I guess is similar. But the law lords ruled that no retroactive crimes could be punished.


Some have mentioned the Free State inherited laws from the ukgbi, and Ireland inherited laws from it's predecessor; but Israel was a new state carved out of Palestine, and not a successor state, like Ireland (or Scotland...) or the 5th republic francais




I accept that desperate times sometimes call for desperate measures and I agree with the retroactivity of punishing nazis for their killings.

Just thinking now, was the fact most(/almost all) concentration camps apart from Bergen Belzen were across the iron curtain a factor in not letting the soviets deal with the nazis ( as they might have taken Stalin's approach of "kill 'em. We'll find reasons later, if we've the time to do so...")?

234

Victor wrote: »

And killing millions of people was a much more obnoxious act, that trumps the legal methods used in the conviction.

Morally yes, legally no.

Beano

234 wrote: »

...
Setting aside the fact that Adolf Eichmann was a morally reprehensible individual, his kidnapping by Israel and his trial by a court which did not exist at the time of the acts in question, in a state which did not exist at the time of the acts in question, for crimes that did not exist at the time in question, raises a whole host of rule of law concerns.
...

The only concern is that the guilty are punished. Do we really need to depend on a law being enacted to know that the murder of millions of people is a crime? The fact that no other country was willing to act is the real obnoxious act.

234

Beano wrote: »

The only concern is that the guilty are punished. Do we really need to depend on a law being enacted to know that the murder of millions of people is a crime? The fact that no other country was willing to act is the real obnoxious act.

And who gets to decide that you are guilty? If you were gay would you be comfortable with an extremist theocracy kidnapping you when you went there on holiday, trying and imprisoning you?

I certainly don't dispute the fact that the right result was reached with Eichmann, but the means by which Israel got there raise concerns.

It's easy to justify executing a Nazi, but when you start applying the same principles to more borderline cases then suddenly the whole thing becomes a lot less palatable.

Beano

Carawaystick wrote: »

...

Regarding legality in Germany, if the nazi era laws applied and it wasn't murder, then surely Germany could not extradite people for something that wasn't a crime?
...

Perhaps somebody could enlighten me but did nazi germany ever enact a law that made the murder of jews and other undesirables legal? Hitler was ruling by decree at this time so did he ever issue an order that specifically said it was ok to murder jews? Just because these acts were committed by arms of state does not in itself make them legal.

Beano

234 wrote: »

And who gets to decide that you are guilty? If you were gay would you be comfortable with an extremist theocracy kidnapping you when you went there on holiday, trying and imprisoning you?

I certainly don't dispute the fact that the right result was reached with Eichmann, but the means by which Israel got there raise concerns.

It's easy to justify executing a Nazi, but when you start applying the same principles to more borderline cases then suddenly the whole thing becomes a lot less palatable.

your example is ridiculous. I have not suggested that we extend the same principle to borderline cases. The only person who has done that is you. Your "thin end of the wedge" argument is poor at best.

Beano

234 wrote: »

Morally yes, legally no.

legal in the sense that there was a trial at all?

Victor

Carawaystick wrote: »

There's probably parts of Somalia ( Puntland etc), Iraq ( the islamic state parts) and Afghanisan ....

While they may seem lawless in our eyes, they do have social norms and traditional tribal and Islamic law to rely upon. So murder and theft are easily punishable, but insider trading might not be. I got the impression that Puntland was fairly stable and did have provincial law.

Just thinking now, was the fact most(/almost all) concentration camps apart from Bergen Belzen were across the iron curtain a factor in not letting the soviets deal with the nazis ( as they might have taken Stalin's approach of "kill 'em. We'll find reasons later, if we've the time to do so...")?

Quite possibly.

Just on the Enabling Act issue, surely if the Nazis forcefully excluded opposition legislators (presumably contrary to law), so as to pass and then benefit from the Enabling Act, then it can be argued all the Nazi decrees were void ab initio?

234

Beano wrote: »

Perhaps somebody could enlighten me but did nazi germany ever enact a law that made the murder of jews and other undesirables legal? Hitler was ruling by decree at this time so did he ever issue an order that specifically said it was ok to murder jews? Just because these acts were committed by arms of state does not in itself make them legal.

Here is a wikipedia quote dealing with some of the offences with which he was charged.

The legal basis of the charges against Eichmann was the 1950 Nazi and Nazi Collaborators (Punishment) Law,[136][d] under which he was indicted on 15 criminal charges, including crimes against humanity, war crimes, crimes against the Jewish people, and membership in a criminal organisation.

Setting aside any murder charges, none of these crimes existed in Nazi Germany or the territories which it occupied. And none of these, at the time, formed the basis for an accepted assertion of universal jurisdiction.

234

Beano wrote: »

your example is ridiculous. I have not suggested that we extend the same principle to borderline cases. The only person who has done that is you. Your "thin end of the wedge" argument is poor at best.

It's not a thin end of the wedge argument; it's the ordinary process of legal reasoning by analogy. I'm not suggesting that there is any risk of this happening, but if you want to have an argument based on a sound principle then it needs to hold up in borderline cases.

Saying "but that's just how we deal with Nazis, we treat everybody else differently" is not any kind of reasoned argument.

Peregrinus

I think the point here is that we would all agree that the trial of Eichmann was not an obnoxious act. If we are looking for obnoxious acts in this story, we should be looking at things like helping Eichmann to escape, affording Eichmann a safe haven, etc.

Nevertheless, it’s fair to ask, is this a hard case making bad law? Just because protecting and sheltering Eichmann is obnoxious, is this enough to justify any state that wants to take the moral high ground kidnapping him, smuggling him to their own country, and trying and hanging him for his admittedly repellent crimes? Do we not see a cure there that might eventually become worse than the disease?

And I agree with 234 that it’s not enough to say that what happened to Eichmann passes muster because Naziism. If because Naziism, why not because Communism? Islamism? Terrorism? Separatism? Treason? Betrayal of state secrets? Remember, Israel has also kidnapped, rendered, tried and convicted Mordechai Vanunu (though they didn’t hang him). And if that’s justifiable, then would the US not be justified in doing something similar to Ed Snowden? And Julian Assange?

What we are seeing since the Second World War is a shift in the circumstances in which the international community will assert, or will sanction the assertion of, universal jurisdiction. This was driven by the events of the war; if international law was to have any moral or political credibility at all, it had to have a response to what happened in Europe in the 1930s and 1940s. But once you start to move the boundaries and allow universal jurisdiction to trespass to a greater extent on national sovereignty, you really need to articulate in a credible way where the new boundary lies. Otherwise it lies wherever the powerful choose to put it from time to time. And this is precisely the danger that 234 points to.