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THE CANADIAN JEWISH REVIEW
e Koie ut Law In International
v� '. . � - -. ' � . " . ' ' '
Affairs As flliistfated By The Kchmann Case
IT mormon MILTON KAH, or NEWARK, N.J., AUTHORITY ON INTERNATIONAL uw, WHO WAS
CHIEF OF THI MAftSKAU KAN WITH TNI RANK OF AMSASSAOOft. TNII PAMR WAS DILIVERED
AS TMI fftWIN C. CAFFRIY MEMORIAL 1ICTURI, SFONSOKID IV TNI NIW JER1IV INSTITUTI
FOR rtAOICINe LAWYIRS, AN� IS REPRINTED FROM THE NEW JERSEY LAW JOURNAL
(Concluded from Last Week)
Question: Professor Katz, for prosecution on a trumped up doesn't Israel take the position in charge.
distinguishing the Eichmann -case from other cases which they have tried on the basis of the Nuremberg trial, that Eichmann is distinguished from other criminals in his execution or in his killing of six million Jews and Israel is peculiarly the only country that can not only represent Israel and the Jews of Israel but also the Jews of the world who have a particular stake in the final result of the Eichmann trial?
Professor Katz: My source of information about Israel's position consists of two things. One is the newspapers and the periodicals. The same sources that you have. The other is two conversations I have had with a legal advisor of the Israeli Foreign Office who is concerned with the international implicat:ons of the case. He said nothing to that effect.
I do gather from the newspapers that this position is taken by various Israeli citizens. I do not know what the official position of Israel will be in the actual indictment which will be brought against Eichmann. The only guide I have to what the indictment will say is what the statute says, and the statute defines three groups of crimes, as I told you, crimes against the Jewish people, which might be taken to suggest that they might possibly take the position you have just defined, and the other two; and I would say that we will not know authoritatively what the Israeli position is until we see what the indictment says.
Question: I would like to ask you a question about the first facet of the case. That is the violation of sovereignty of the State of Argentina. It disturbs me just a little bit that where there is in a country a person who is popular to the extent that that country does not wish to assert its rights under international law, that person is left ^ithout any remedy under international law. Now, 1 know that under the traditional view that when you say that, question the view, but some have suggested that there are or ought to be private rights under international law, and I wonder if this isn't an area that points up that need.
Professor Katz: It may well be. I think that the Supreme Court of the United States and the other courts who just said, well, this is not our affair, so to speak, have taken the easy way out. I think that is quite clear.
You see, if Argentina had seen fit to bring a legal proceeding against Israel in an international court, she would have recovered judgment, I assume, because I see no evidence that Israel would seriously have challenged the Argentina contention that international law had been violated. Israel would have conceded this, I think. Then Argentina would have gotten judgment. Then Argentina would have run into a problem familiar to us as lawyers, what would the remedy be? In our own law the usual form of judgment remedy is for damages, you see. In certain cases, you get specific performance, but that isn't the usual remedy.
So that Argentina's claim might well be for reparations in some monetary amount, say fifty thousand or twenty-five thousand dol-
I think this is a serious question and it is one of the many questions with respect to which each individual court tends to find its own way out. I am not saying this critically, but we are all lawyers, we all know what courts do. In effect, they tend to say: Just what is the question before us? We will decide the question before us. And with these other things, that will be worked out some other way, you know.
Well, as lawyers they are right, but it leaves a big hole in the corf-temporary world and in a world in which there are I don't know how many millions of refugees. All one needs is one slight change of events and there will be additional refugees in Algeria, French refugees. Just as there were Dutch refugees in Indonesia. In a world so full of people in such a fix, in a world of changing regimes, this is a very serious problem. I think it is something that ought to be faced.
Question: Sir, in regards to the retroactivity you indicated it is not much of a problem because this has been outlawed in other places, but inasmuch as he is being prosecuted under an Israeli statute I don't see how the fact that it's a crime in, shall we say, international law or may have been codified in another country would help eliminate the retroactive problem in the Israeli statute. v
Professor Katz: I don't think it eliminates it. I suggested I think it affords an answer to it. I would like to try to answer your question under a legal system you and I are both familiar with, and that is our own. Let us assume there is a statute of New Jersey, New York, the Federal Government � I don't care which � providing that any war criminal found anywhere within New Jersey or coming within New Jersey shall be prosecuted for war crimes defined in accordance with established international legal doctrine. And let's assume the New Jersey statute were passed in 1950 and one of these fellows was found in New Jersey � and I'll eliminate kidnapping, you see�and he is prosecuted in New Jersey under that statute � and he challenges the statute under the Fourteenth Amendment.
What I would suggest to you is that, if New Jersey's argument were yes, this is a new statute, but this statute is a statute which in effect is equivalent to one that merely codifies the present existing common law, in this case it codifies not the ordinary present existing common law but it codifies war crimes which are a part of the law of nations, which by the Constitution of the United States, (Congress shall have power to punish, etc.) and which by well established precedent have been found to be punishable by the several states at least since � I haven't traced it back before 1750, but it goes back at least that far � I would suggest that the Supreme Court would say this does not violate the Constitution of the United States.
Now, as I say, it is a problem. It is not an open and shut case. But that is the way I would suggest it seems to me it would be answered.
Question: Professor Katz, 1
lars for an offense against her would like to address a question to sovereignty, and Israel might have the broader problem that you re-
paid the judgment. This would still leave Eichmann precisely where he was to start with. Of course, in the world as it is today, people might be kidnapped who are not .criminals at all. I can well
ferred to generally, that of the development of world law to meet the question of elimination of armament, and so forth. You have suggested that we have a lot to do, ease by ease, and problem by
imagine, for instance, a Commu- problem. You have also suggested rust regime kidnapping a defected that there is a shortage of time. Is Communist and hauling him back there any alternative to a develop-
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ment of a world common lawt Id there something or is there some approach by way. of legislation,, world legislation or world constitutional development, revision of the U. N, Charter, anything along those lines you could suggest?
Professor Katz: I think it is possible, that is to say Governments could enter into international conventions, to establish doctrines of this sort. They could devise ways and means of enforcement.
Let me make one thing clear. I am not suggesting that all problems of disputes between states can ever be handled through law. We don't handle all disputes through law within our own country, the United States of America. There are plenty of cases where there are conflicts which are not ever settled through adjudication in any form. I suppose the most obvious is the strike, the labor disputes, where the law sets the limits within which the conflict takes place. No fraud, no violence, and so on. But within those limits we just leave it to be worked out.
I can give you another illustration which is less obvious but perhaps even more fundamental, and that's an election. In an election, we decide who shall exercise power within the United States. Now, theoretically, you could try to do that by adjudication. I can give you the formula. The formula will sound � and be � awfully silly. It isn't any sillier, I think, than some of the formulae that I have heard offered for eliminating war. You set up nine judges, eighteen, twenty-four, the best people in the country, set them up in a tribunal, and you give them a standard. You say: "We want you to pick as the President of the United States that man who is the wisest, the bravest, the truest, the most loyal, great patriot, the most experienced, the most patient, the strongest, et cetera. Those are the principles. Now you apply them."
Now, we all know perfectly well that that won't happen, it can't happen. We all know that the so-called principles there are just words, that a court can only apply principles to settle cases when the principles are such that every participant by and large understands them in substantially the same way. That is what common law does for us, and that is what statutory interpretation will do for us. By contrast, to set up a standard of "the wisest, the bravest, the truest", et cetera, makes no sense. It is not a standard people can apply. People will not accept the result. In an election system, there is struggle for power. We use propaganda, money, political warfare. We use everything except violence and fraud, which are outside the limits by law. Within these limits, the process works itself out.
I have a right in business to destroy you economically, by trying to do a better job of selling my goods than you can yours. I must operate within limits; no fraud, no monopoly, et cetera; but within those limits I can fight it out with you. In short, all societies recognize there are lots and lots of large disputes which cannot be resolved by adjudication, by their very nature.
What I have in mind as the job in front of us is this. In the fir?t place, the larger the area of international disputes that you can bring within the sphere of law, the better chance you have of dealing with the rest of it through policy, diplomacy, negotation, and so on. The things which we deal with by processes like elections or like strikes or like business compe-
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tition, these things are manageable in part because so much of it ia covered by law that the rest is manageable. If you didn't have any legal system, none of these things would be manageable.
So our first problem ia to. find what can be handled through legal machinery. Beyond that, we have the.additional problem of develop-' ing not law in the technical sense, but institutions and arrangements for coping with these things. And it will be tough. I am not suggesting that we should think of this in terms of millenium. Remember the United States of America was a hundred years old when we fell apart in the bloodiest war we ever had, the Civil War. There can be no guaranty in any constitutional arrangement against that. We became a republic in 1789 � it wasn't a hundred years, it was seventy when we found that we couldn't handle things except through a war, and we fell apart. If you go through the history of the Roman Empire you find that from 180 A.D., when the second of the Antonines died, to the time of Diocletian, about 3CT, about 120 years, the life expectancy of a Ho-man emperor during that period I think was nine months. And they fell, you see, because wars were going on all the time. They were
called civil wars, they were called revolutions. But they smell as sweet by any name.
And, as I say, I am not talking about rearing back and passing miracles. I any saying that the more of this we can bring within law, the better chance we have of handling the rest of it in an approximately sensible way. And the imagination which goes into the legal system can also go into the development of institutions and arrangements. And when I said let each of us do what he can, I wasn't offering that as an adequate substitute for divine intervention. I was saying merely that as mortal men, we have the good fortune to be able to do what we
can. By and large, that's as far as we can get; and most of us don't even get that far. That's all I meant by that.
Question: In the area of retroactivity, is an additional problem posed for you by the fact that Israel did not exist as a state when these acts. were committed?
Professor Katz: I think it's an additional problem, yes. I wouldn't feel it was unmanageable. Supposing Alaska adopted that New Jersey statute 1 was talking about a moment ago. Well, you know, Alaska has been a state a short time. It doesn't seem to me to be really a hurdle, although it is a genuine problem. I think it has to be faced.
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