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Neutral States and the Extradition of War Criminals

Published online by Cambridge University Press:  20 April 2017

Robert G. Neumann
Robert G. Neumann*
Affiliation:
University of California, Los Angeles
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Abstract

The determination of the Allied Powers to seize and punish war criminals was implemented several years ago by the corollary decision to ask for their extradition from foreign countries. President Roosevelt announced on October 7, 1942

Type
Research Article
Information
American Journal of International Law , Volume 45 , Issue 3 , July 1951 , pp. 495 - 508
Copyright
Copyright © American Society of International Law 1951

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References

1 The term “war criminal” is used here in that broad sense which has now become current, including not only violators of the rules of war, but also those accused of atrocities and of “crimes against peace.”

2 The New York Times, Oct. 7, 1942.3U. S. Treaty Series, No. 678; this JOURNAL, Supp., Vol. 13 (1919), p. 151.

4 See James Brown Scott, “The Trial of the Kaiser,” in Edward H. House and Charles Seymour, What Keally Happened in Paris (New York, 1921), p. 237; James W.Garner, “Punishment of Offenders against the Laws and Customs of War,” this JOURNAL, Vol. 14(1920), pp. 70 ft.; Quincy Wright, “The Legal Liability of the Kaiser,” American Political Science Review, Vol. XIII (1919), pp. 121 ff. It should be noted that the extra-legal nature of the indictment against the ex-Kaiser was well recognized in Art. 227 of the Versailles Treaty itself by proclaiming that the accused was to be arraigned for “ a supreme offense against international morality and the sanctity of treaties.” Analogously, the international tribunal which was to try him was to be ’ ‘ guided by the highest motives of international policy, with a view of vindicating the solemn obligations of international morality.”

5 Weimar Constitution, Art. 112; see Wolfgang Mettgenberg, Ein Deutscher darf nicht ausgeliefert werden (Berlin, 1925).

6 This JOURNAL, Supp., Vol. 38 (1944), p. 5. 7 Hugo Grotius, De Jure Belli ac Pacis, Vol. II, eh. XXI, Sec. V, Nos. 1 and 2. See Andre1 Mercier, “ L'Extradition,” in AcadSmie de Droit International, BecueU des Cours(1930), Vol. I l l , p. 181.

8 L. Oppenheim, International Law (5th ed. by H. Lauterpacht, London, New York,Toronto, 1937), Vol. I, pp. 558 ff.

9 See Secretary of State Jefferson to President Washington, Nov. 9, 1791, quoted by John B. Moore, Extradition and Interstate Rendition (Boston, 1891), Vol. I, pp. 22 ff.;Secretary of State Webster to Lord Ashburton, Aug. 1, 1842, quoted by Moore, op. eit.,Vol. I, p. 15; Secretary of State Marcy to Mr. Hulsemann, Austrian Charge d'Affaires, Sept. 26, 1853, ibid.; and in “Beport of the Secretary of State,” Dee. 5, 1853, Senate Documents, 33rd Cong., 1st Sess., Vol. I, pp. 23-50; Commonwealth ex rel. Short v.Deacon, 10 Sergeant & Eawle 125 (1823); Holmes v. Jennison, 14 Peters 540 (1840);IT. S. v. Eauscher, 119 U. S. 407 (1886).

10 In re Gonzales, Memoria de la Corte Federal y Casacidn de Venezuela (1927), p.115; In re Fernando Benet Memoria (1927), p. 154; In re Manuel Augusto Marques da Silva, 145 Fallos de la Corte Suprema (Argentina) 391 (1927). A similar decision was handed down in the case of Tsieras, Eumanian Court of Cassation, March 20, 1929,in Annual Digest of Public International Law Cases, 1929/30, No. 173.

11 Fleischmann's assertion (in his 12th edition of Franz von Liszt's VoeVkerreeht(Berlin, 1925), p. 357, note 10) that Art. 228 of the Treaty of Versailles, providing for the extradition of certain alleged German war criminals, constituted a “disgraceful violation of the principles of international law” is therefore without foundation. Treaties,including peace treaties, may regulate extradition as the parties seefit.

12 See James W. Garner's comment on German military government in Belgium 1914-18, in International Law and the World War (New York, London, 1920), Vol. II, pp.58-185.

13 Liszt, Voelkerrecht, p. 556; Alfred von Verdross, Voellcerrecht (Berlin, 1937), p.290; Georg Schwarzenberger, International Law (London, 1945), Vol. I, p. 331.

14 Oppenheim, op. cit. (6th ed. by H. Lauterpacht), Vol. II, p. 467. See also C. C.Hyde, International Law Chieflyas Interpreted and Applied by the United States (2nded., Boston, 1945), Vol. I l l , pp. 2389 ff.

15 Hans Kelsen, ‘ ‘ The Legal Status of Germany according to the Declaration of Berlin,” this JOURNAL, Vol. 39 (1945), p. 518.

16 Declaration of the United States of America, the United Kingdom, the Union of Soviet Socialist Kepublics, and the Provisional Government of the French Bepublic,Berlin, June 5, 1945. This JOURNAL, Supp., Vol. 39 (1945), p. 171.

17 Carl Meurer, Die voelleerrechtliche Stellung der vom Feinde besetzten Qebiete(Tuebingen, 1915), p . 13.

18 But states may in their discretion and purely as a matter of comity grant extradition even in the absence of a treaty and of definite assurance of reciprocity, unless such surrender is prohibited by statute.

19 Art. 11, Sec. 3, Law of June 4, 1913. This JOURNAL, Supp., Vol. 29 (1935), Pt. I,p. 416.

20 Art.9, Law of Jan.22, 1892. Feuille Fédérate, Vol. I , p . 444.

21 Case of Kilatschitsky, Entscheidungen des schweizerischen Bundesgerichts (1907),Vol. 33, I, p. 408.

22 The majority of states list all extradition crimes in their treaties. Some (e.g.,Switzerland) list them also intheir laws.

23 Factor v. Laubenheimer et al., 290 XJ. S. 276 (1933) ; Case of Blaekmer, Annual Digest, 1931/32, No. 160. For avigorous refutation of the court's view in the Factor case, see Manley O. Hudson, “The Factor Case and Double Criminality in Extradition,”this JOURNAL, Vol. 28 (1934), pp. 274 ff.; and Edwin Borchard, ibid., p. 742. See also Bex v. Corrigan, [1930] 1 K.B. 527; Rex v. Flannery, 3 DominionLaw Reports 689,Annual Digest, 1919/20, No. 200.

24 Swedish Extradition Act, Art. 4; Swiss Extradition Act, Art. 6.

25 E.g., Art. 3, sec. 1, Treaty between Germany and Turkey of Sept. 3, 1930. 133 League of Nations Treaty Series 334.

26 See War Department, 1940, Rules of Land Warfare, Field Manual 27-10.

27 Harvard Research in International Law, Draft Convention, this JOUKNAL, Supp.,Vol. 29 (1935), Pt. I, pp. 119-122. See also: Moore, Extradition, Vol. I, pp. 611-623;Albert Billot, TraitS de I'Extradition (Paris, 1874), pp. 94-100; Ludovic Beauchet, TraitS de I'Extradition, (Paris, 1899), pp. 268-278.

28 Art. 4, Treaty between Colombia and Panama, Dec. 24, 1927. 87 L.N.T.S. 409.

29 A number of treaties allow extradition for military offenses if extradition could have been granted for the same act, had it been committed by a person not subject to military law. Harvard Research Draft, loc. cit., p. 121. For a list of treaties containing this provision, see ibid., note 3.30Heinrich Lammasch, Auslieferungspflicht und Asylrecht (Leipzig, 1887), p. 254.31Not stipulated in Art. 13, Italian Penal Code of 1930,but the prohibition of surrendering political offenders is contained in practically all extradition treaties to which Italy is a party. No prohibition is contained in the law of the Soviet Union. See Law of Oct. 31, 1924, Art. 16, Sooraniye Zakonov t Sasporashenii, Dec. 6, 1924, pp. 16 ft.See also T. A. Taracouzio, “International Cooperation of the U.S.S.R. in Legal Matters,”this JOURNAL, Vol. 31 (1937), pp. 55 ff. But compare Art. 129 of the Soviet Constitution of 1936 which promises asylum to “foreign citizens persecuted for defending the interests of the toilers, or for their scientific activities, or for their struggle for national liberation.”

32 “ Circulaire adressè aux services pènitentiaires,” issued by M. Barthou, quoted by N. P. A. Donnedieu de Vabres, Les principes modernes du droit pènal international(Paris, 1928), p. 277.

33 Pasquale Fiore, Traitd de droit pSnal international et de Vextradition (Paris, 1880,French translation by F. Antoine), Vol. II, p. 592.

34 Franz von Liszt, Lehrbuch des deutschen Strafrechts (18th ed., Berlin, 1911), p. 115.

35 Harvard Research Draft, loc. cit., pp. 112 ff.

36 Act of Dec. 23, 1929, Beichsgesetzblatt, 1929, Vol. I, Pt. I, p. 239.

37 In re Castioni, [1891] 1 Q.B. 149.

38 Compare for instance the opinions of the Swiss Federal Tribunal in the cases of Kerreselidze and Magaloff, Entscheidungen (1907), Vol. 33 (I), p. 169, and Jaffai, Entscheidungen (1901), Vol. 27 (I), p. 52. In the former case the court, in refusing extradition to Eussia,bore in mind the oppressive methods which that government employed in Georgia. But in the Jaffai case, the court held that the personal character,as well as the manner of governing by the assassinated King Humbert I of Italy was such that there could be no possible justification for the crime. See Roger Corbaz, Le Crime Politique et la Jurisprudence du Tribunal Fèdèral Suisse en matilère d’Extradition(Lausanne, 1927), p. 139, note.

39 An act which renders the perpetrator liable to penal sanction solely because of its political character.

40 Some publicists make a further distinction between the complex crime {d6lit complete),where both the common andthe political crimes are committed by the same act,and the connected crime (dèlit connexe), consisting of two separate acts connected with each other. See Albert Billot, Traitè de l’ Extradition (Paris, 1874), pp. 104 ff.; Paul Bernard, Traitè thiorique et pratique de L’Extradition (Paris, 1890), Vol. II, p. 272.

41 Here again the German Extradition Act attempts a definition. It is described as an act so connected with a purely political offense as to be “destined to secure, cover or conceal ( it ) . “ Art. 3, See. 1.

42 Case of the Mexican Revolutionists, U. S. Foreign Relations (1880), p. 788;Case of Cazo, Moore, op. cit., Vol. I, p. 325; Case of Rudewitz, Hackworth, Digest of International Law (Washington, 1940-44), Vol. TV, pp. 49 ft. A particularly feeble link appeared in the Lynchhaun case, An Irish-American Victory over Great Britain(Indianapolis, 1903), pp. 112 ff.

43 Sweden is in the same category, having adopted the Swiss system of weighing predominance in relative political crimes. Act of June 4, 1913, Art. 7.

44 Case of Kerreselidze and Magaloff, supra; Case of Belenzow, Entscheidungen(1906), Vol. 32 (I), p. 531.

45 Swiss Extradition Act, Art. 10.

46 Identical wording in the cases of Vogt, Entscheidungen (1924), Vol. 50 (I), p. 249,and Kaphengst, Entscheidungen (1930), Vol. 56 (I), p. 457.

47 See Charter of the International Military Tribunal, this JOURNAL, Supp., Vol. 39(1945), p. 258.

48 Argentine Extradition Act of Aug. 25, 1885, Art. 3, See. 2; Turkish Penal Code,Art. 9; British Extradition Act of 1870, Art. 3, Sec. 1; Belgian Extradition Act of Oct.1, 1833, Art. 6.

49 Extradition Treaty between the United States and Great Britain, Dec. 22, 1931(TJ. S. Treaty Series, No. 849), Art. 6.

50 Especially Rumania, whose policy in this respect was influenced by Professor Vespasian Pella, one of the prime protagonists of the unification of criminal law and the fight against international terrorism. See the Acts of the Conferences for the Unification of Penal Law at Brussels(1930), Paris (1931), Madrid (1933), and Copenhagen(1935). See also Radu Meitani, “ ĽExtradition dans les nouveaux codes Soumains,” Revue de Droit International et de Lègislation Comparèe (1937, 3ème sèric), Vol. 18,pp. 34, 50 ff.; and the treaties between Panama-Colombia (1927), 87 L.N.T.S. 410;Bulgaria-Spain (1930), 114 L.N.T.S. 43; Italy-Panama (1930), 114 L.N.T.S. 241.

51 Convention for the Prevention and Punishment of Terrorism, League of Nations, Proceedings of the International Conference on the Repression of Terrorism, Geneva,Nov. 1-16, 1937 (C.49. M.47. 1938. V.), Art. 8, Sees. 1 and 4. Compare the Report of the International Law Association, 35th Report (Warsaw, 1928), p. 32, Art. 7 as amended.

52 Cf. Cases of Jaffai, Belenzow, Vogt, Kaphengst, cited supra; Wassilieff, JSntscheidungen(1908), Vol. 24 (I), p. 549; the French Extradition Act of March 10, 1927, Art.5, Sec. 2, par. 2; also Resolutions of the Institute of International Law, Geneva, 1892, Annuaire, Vol. 12, p. 182.

53 The defense that extradition under such an agreement would constitute an ex post facto law would not be successful, since extradition does not imply judicial decision of guilt but merely an act of “judicial aid” to the proper authorities who have jurisdiction over the offense in question.

54 Compare the suggestion made by James W. Garner, ‘ ‘ Punishment of Offenders against the Laws and Customs of War,” this JOURNAL, Vol. 14 (1920), pp. 70 ff.

55 Pierre Laval was expelled by Spain (The New York Times, Aug. 1, 1945), and Edda Ciano by Switzerland {ibid., Aug. 18, 1945).

56 Technically there is no “right of asylum” for the fugitive under the law of extradition. Only the stateshave a “ right “ to accord or refuse extradition according to their laws and treaties. But since most states have adopted the procedure by which their courts will either decide the question of extradition or at least play an important part in that decision, a high degree of protection is actually accorded to fugitives from justice, particularly when a political element is involved.

57 The first law definitely prohibiting extradition for political offenses was enacted by Belgium on Oct. 1, 1833. Some writers claim that a French ministerial directive of April, 1832, was actually the first such instance, Heinrich Lammasch, Das Becht der Auslieferung wegen politischer Verbrechen (Vienna, 1884), p. 35. It has also been claimed that such a prohibition was already contained in the constitution of the Duchy of Saxony-Meiningen of Aug. 23, 1829, but the evidence does not appear entirely conclusive.See Wolfgang Mettgenberg, “ Das erste Verbot der Auslieferung politischer Verbrecher,” Zeitschrift fuer Voellcerrecht (1928), Vol. 14, p. 239.

58 Lord Palmerston in the House of Commons, Feb. 28, 1851, quoted by Lammasch, op. cit., p. 42.

59 This list is incomplete.

60 Gesetz ueber Kriegsverbrecher, Sec. 1; Verfassungsuebergangsgesetz, adopted by the Austrian Cabinet Council, June 26, 1945 (private source).

61 The overwhelming majority of nations prohibit the extradition of their nationals outright. Only Great Britain has consistently agreed to surrender them. Regina v.Nillins, [1884] 53 L.J.M.C. 157; Hex v. Godfrey, [1923] 1 K.B. 24. The United States has sometimes extradited nationals when in the opinion of the courts the treaty in question warranted it. Charlton v. Kelly, 229 U. S. 447 (1912). But the majority of treaties entered into by the United States contain the provision that the contracting parties shall not be bound to give up their nationals. This has been interpreted by the U. S. Supreme Court as withholding authority from the Executive to surrender a citizen.Valentine v. U. S. ex rel. Neidecker, 299 U. S. 5 (1936). This interpretation is to be regretted and has been widely opposed. See James W. Garner, “Non-Extradition of American Citizens—the Neidecker Case,” this JOURNAL, Vol. 30 (1936), p. 480. For a comprehensive treatment of the whole subject, see Robert W. Rafuse, The Extradition of Nationals (Urbana, 1939).

62 Eesolution of the Hungarian Ministry of Justice, Annual Digest, 1925/26, No. 228. Even when nationality has been acquired after the commission of the crime, no extradition can be granted. In re D.G.D., Court of Thrace, Greece, Annual Digest, 1933/34, No.141. Particularly objectionable appears to be a decision of the Greek Areopagus in 1929, which ruled that an Albanian national of Hellenic blood could not be surrendered,as he was included in the term “ national . “ Albania National Case, Annual Digest,1929/30, No. 178.

63 The New York Times, Nov. 17, 19, 1944.

64 Ibid., Oct. 5, 1945.

65 Art. 10, Treaty between Great Britain and the United States (1931), U. S. Treaty Series, No. 849.

66 Art. 14, Sec. 2, Swiss Extradition Act. But due consideration will also be given to the nationality of the accused. A number of treaties provide that in the case of conflicting requisitions, the requested state is free to choose. Treaty between United States and Germany, July 12, 1930, 119 L.N.T.S. 247. If the conflicting requisitions concern the same act, preference is usually given to the country in which the crime was committed.Art. 7, Seventh International Conference of American States, Convention of Montevideo,Dec. 26, 1933; Harvard Besearch Draft, Appendix I I I , p. 290.

67 The surrender by Sweden to the Soviet Union of numerous Baltic nationals (The New York Times, Jan. 18, 1946) did not constitute extradition, as the fugitives were,at least at the time of their surrender, not charged with any crimes.

68 Convention for the Creation of an International Criminal Court, Proceedings of the International Conference on the Repression of Terrorism, cited supra, note 51.

69 See Art. 13, Charter of the United Nations; also report of 2nd Session of United Nations International Law Commission,this JOURNAL, Supp., Vol. 44 (1950), p. 134,and not thereon by Yuen-li Liang, below, p. 524.