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Int Org, Jurisdiction, Immunity,

Nottebohm (Liechtenstein v. Guatemala)

Li echtenstein v. Guatemala is the proper name for the 1955 contentiouscase adjudicated by the International Court of Justice (ICJ). Liechtensteinsought a ruling to force Guatemalan recognition of Friedrich Nottebohm asa Liechtenstein national .[1]

History

Nottebohm, born September 16, 1881 in Hamburg, Germany, possessedGerman citizenship. Although he lived in Guatemala from 1905 until 1943he never became a citizen of Guatemala. On October 9, 1939, Nottebohmapplied to become a naturalized citizen of Liechtenstein. The applicationwas approved and he became a citizen of Liechtenstein. He then returned toGuatemala on his Liechtenstein passport and informed the localgovernment of his change of nationality. When he tried to return toGuatemala once again in 1943 he was refused entry as an enemy alien sincethe Guatemalan authorities did not recognise his naturalisation and regardedhim as still German. It has been suggested that the timing of the event wasdue to the recent entry of the United States and Guatemala into the SecondWorld War.

He was later extradited to the U.S., where he was held at an internment

camp until the end of the war. All his possessions in Guatemala wereconfiscated. After his release, he lived out the rest of his life inLiechtenstein.

Implications for international law

Background of the ICJ case

The Government of Liechtenstein granted Nottebohm protection againstunjust treatment by the government of Guatemala and petitioned theInternational Court of Justice. However, the government of Guatemalaargued that Nottebohm did not gain Liechtenstein citizenship for the

purposes of international law. The court agreed and thus stopped the casefr,om continuing.

Decision

Although the Court stated that it is the sovereign right of all states todetermine its own citizens and criteria for becoming one in municipal law,such a process would have to be scrutinized on the international planewhere the question is of diplomatic protection. The Court upheld the

principle of effective nationality, (the Nottebohm principle) where thenational must prove a meaningful connection to the state in question. This

principle was previously applied only in cases of dual nationality todetermine which nationality should be used in a given case. However

Nottebohm had forfeited his German nationality and thus only had thenationality of Liechtenstein. The question arises, who then had the power togrant Nottebohm diplomatic protection?

The Nottebohm case was subsequently cited in many definitions ofnationality.

United States v. Vasquez-Velasco

Facts

Javier Vasquez-Velasco (defendant) was allegedly a member of theGuadalajara Narcotics Cartel, a drug trafficking group in Guadalajara,Mexico. The cartel was engaged in drug trafficking in the United States inthe early 1980s. In 1984 and 1985, members of the American DrugEnforcement Agency (DEA) engaged in law enforcement activitiesresulting in losses of billions of dollars to the cartel. In retaliation for theselosses, Vasquez-Velasco and his co-defendants allegedly engaged in violentcrimes in aid of a racketeering enterprise in violation of 18 U.S.C. 1959.Vasquez-Velasco was charged with the 1985 kidnapping and murders ofEnrique Camarena, an American agent with the DEA, and Alfredo Zavala,a DEA informant. At trial, however, it came out that Vasquez-Velasco hadactually been involved with the murders of two other men in a different

incident. On January 30, 1985 in Guadalajara, Mexico, Vasquez-Velascogathered with other members of the drug cartel at the La Langostarestaurant. Two men John Walker, an American author, and AlbertoRadelat, an American photographer entered the restaurant. The drugcartel mistook them for DEA agents, and they were seized and beaten bymembers of the drug cartel. They were tortured until one confessed theywere police, and were then dragged outside and killed in a field. Vasquez-Velasco was convicted of these crimes in violation of 18 U.S.C. 1959,and appealed. On appeal, he argued that the district court erred in rulingthat 1959 applies extraterritorially and in finding that it had jurisdictionover the matter.

Judgement affirmed. Appeal denied.

Key TermsProtective Principle

A principle of international law which provides that a State mayassert jurisdiction over foreigners for acts committed outsidethe State that are directed against the territorial integrity,security, or political independence of the State.

Objective Territorial Principle

A principle of international law which provides that a State may

assert jurisdiction over acts performed outside its borders thatproduce detrimental effects within the State.

H artford Fi re Insurance Co. v. Calif ornia

H artford Fi re Insurance Co. v. Calif ornia , 113 S.Ct. 2891 (1993 )[1], was acontroversial United States Supreme Court case which held that foreigncompanies acting in foreign countries could nevertheless be held liable forviolations of the Sherman Antitrust Act if they conspired to restrain tradewithin the United States, and succeeded in doing so.

Facts

Various reinsurance companies in the United Kingdom had conspired tocoerce U.S. insurers into abandoning certain policy practices that were

beneficial to consumers, but costly to the reinsurers. When U.S. states(including the named plaintiff, California) filed a lawsuit alleging antitrustviolations, the defendant companies raised a number of defenses, assertingthat the United States lacked jurisdiction over their acts, that variousstatutes exempted them from liability, and that principles of comity dictatedthat they should not be brought before a U.S. court. The United Statesdistrict court in which the case was brought accepted these arguments anddismissed the case. The Court of Appeals reversed the dismissal.

Result

The Supreme Court, in an opinion by Justice Souter, stated that "it i s wellestablished by now that the Sherman Act applies to foreign conduct thatwas meant to produce and did in fact produce some substantial effect in theUnited States."

The defendants raise, and the Court rejects the applicability of 402 of theForeign Trade Antitrust Improvements Act of 1982 (FTAIA) 96 Stat. 1246,15 U.S.C. 6a, which states that the Sherman Act does not apply toconduct involving foreign trade or commerce (other than import trade orimport commerce), unless "such conduct has a direct and reasonablyforeseeable effect" on domestic or import commerce. The Court found thatthe conduct at issue here clearly had such an effect.

The Court also found that, in enacting the FTAIA, the U.S. Congress didnot intend to write principles of comity into the Sherman Act - but even ifthey had, this would not affect the outcome. Both the defendant andHartford argued that the conduct in which the reinsurers had engaged waslawful in the United Kingdom. Nevertheless, the Court looked to theRestatement (Third) Foreign Relations Law, 415, Comment j for the

principle that:
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The fact that conduct is lawful in the state in which it took placewill not, of itself, bar application of the United States antitrustlaws, even where the foreign state has a strong policy to permitor encourage such conduct.

Furthermore, the Court cited Restatement (Third) Foreign Relations Law, 403, Comment e for the proposition that no conflict exists "where a personsubject to regulation by two states can comply with both."

Dissent

Justice Scalia dissented, joined in part by Justices O'Connor , Kennedy, andThomas. Scalia acknowledged that the federal courts had jurisdiction overthis case, and that the Sherman Act could be applied extraterritorially, solong as the foreign acts complained of were directed into the United States.

Nevertheless, Scalia contended that the actions of the U.S. courts showed alack of judicial respect for the comprehensive regulatory scheme enacted bythe UK. Although Congress may have intended the Sherman Act to applyto acts originating abroad, it was unreasonable to assume that Congressintended to apply the antitrust laws where they would be disruptive ofanother country's legislative scheme.

UNITED STATES of America, Plaintiff-Appellee,v.Francesco COLUMBA-COLELLA, Defendant-Appellant.

1 In this case, unfortunately, the legally correct result produces somethinglike declaring an open season on motor vehicles in American border towns

provided that the recipient of the stolen vehicles escapes the clutches ofMexican and Canadian law. Nevertheless, for lack of jurisdiction, we mustreverse the district court's judgment entering defendant FrancescoColumba-Colella's plea of guilty to the offense of receiving a stolen vehiclein foreign commerce in violation of 18 U.S.C. 2313. The criminal offenseoccurred in Mexico.I.

2 On the evening of August 21, 1978, Francesco Columba-Colella met ayoung man named Keith in Curley's Bar in Juarez, Mexico. The two struckup a conversation and became casual friends. Two days later they met again

by chance at five-thirty in the afternoon on a Juarez street. Keith toldFrancesco he wanted to sell a car, and Francesco, who had lived in Juarezfor at least two years, responded that he knew someone who might be

interested in buying it. Keith then informed him for the first time that thecar had been stolen in El Paso, Texas, and offered Francesco half the proceeds of any sale he could arrange. Francesco assented, took the keys tothe car, a Ford Fairmont, and agreed to meet Keith the next day at 2:00 p.m. in The Kentucky Bar in Juarez. The meeting was not to take place.Later, the same evening, as Francesco was approaching the car with hiswife, he was arrested by Mexican police.

3 The defendant, who was nineteen years old, resided in Juarez, where helived with the Mexican woman whom he had married in 1976. He is aBritish citizen who was not employed in the United States and did not own

property in the United States. He intended to reside permanently in Mexicoand become a Mexican citizen.

4 After the defendant's motion to dismiss was denied, Columba-Colella pleaded guilty, but reserved the right to appeal the jurisdictional issue. The

trial court committed him to the custody of the Attorney General for fiveyears.

II.

5 The only question raised on appeal is whether the lower court had jurisdiction over the case. Had the defendant been a United States citizen,there would be no jurisdictional problem, for a country may supervise andregulate the acts of its citizens both within and without its territory. See, e.g., Blackmer v. United States, 1932 , 284 U.S. 421, 437, 52 S.Ct. 252, 76L.Ed. 375; The Apollon, 1824, 22 U.S. (9 Wheat.) 362, 369-70, 6 L.Ed.111; United States v. King, 9 Cir. 1976, 552 F.2d 833, 851, Cert. denied,430 U.S. 966, 97 S.Ct. 1646, 52 L.Ed.2d 357; United States v. Pizzaruzzo,2 Cir. 1968 , 388 F.2d 8, 10, Cert. denied, 392 U.S. 936, 88 S.Ct. 2306, 20L.Ed.2d 1395; Rocha v. United States, 9 Cir. 1961, 288 F.2d 545, 548,Cert. denied, 366 U.S. 948, 81 S.Ct. 1902, 6 L.Ed.2d 1241. See alsoRestatement (2d) of Foreign Relations Law of the United States 30(1).

6 When an allegedly criminal act is performed by an alien on foreign soilcourts in the United States have long held that if jurisdiction is to be

extended over that act, it must be supported by either the Protective or theObjective territorial theory. Under the protective theory, which does not

bear on the resolution of the case before us, a country's legislature iscompetent to enact laws and, assuming physical power over the defendant,its courts have jurisdiction to enforce criminal laws wherever and bywhomever the act is performed that threatens the country's security ordirectly interferes with its governmental operations. A state/nation iscompetent, for example, to punish one who has successfully defrauded itstreasury, no matter where the fraudulent scheme was perpetrated. UnitedStates v. Fernandez, 5 Cir. 1974, 496 F.2d 1294, 1296. See also UnitedStates v. Bowman, 1922, 260 U.S. 94, 97-98, 43 S.Ct. 39, 67 L.Ed. 149;United States v. Vicars, 5 Cir. 1972, 467 F.2d 452, 456 (per curiam), Cert.denied, 410 U.S. 967, 93 S.Ct. 1451, 35 L.Ed.2d 702; United States v.Williams, 2 Cir. 1972, 464 F.2d 599, 601; United States v. Pizzaruzzo, 2Cir. 1968 , 388 F.2d 8, 10-11, Cert. denied, 392 U.S. 936, 88 S.Ct. 2306, 20L.Ed.2d 1395; Restatement (2d) of Foreign Relations Law of the UnitedStates 18.

7 The objective territorial theory looks not to interference withgovernmental interests but to objective effects within the sovereign state.The theory requires that before a state may attach criminal consequences toan extraterritorial act, the act must be intended to have an effect within thestate. As Mr. Justice Holmes announced the theory, in the context of aninterstate extradition:Acts done outside a jurisdiction, but intended to

produce and producing effects within it, justify a state in punishing thecause of the harm as if he had been present at the effect, if the state shouldsucceed in getting him within its power.

8 Strassheim v. Daily, 1911, 221 U.S. 280, 284-85, 31 S.Ct. 558, 560, 55L.Ed. 735. Assume, for example, that persons or their agents conspire torent a boat in Miami, sail it beyond United States coastal waters, and load itwith a cargo of illegal drugs. Then, en route to a United States port butwhile still on the high seas, the conspirators are apprehended. This countrymay under the objective territorial theory apply its drug laws to punishthem if it can establish intent to violate those laws. See United States v.Postal, 5 Cir. 1979, 589 F.2d 862; United States v. Cadena, 5 Cir. 1979, 588F.2d 100; United States v. Winter, 5 Cir. 1975, 509 F.2d 975, 980-83, Cert.denied sub nom. Parks v. United States, 423 U.S. 825, 96 S.Ct. 39, 46L.Ed.2d 41.

III.

9 There is no basis for jurisdiction over the defendant in the present case.

He is not a United States citizen. He has not threatened the security of thiscountry or interfered with its governmental function. Although theobjective territorial theory applies, the fact that no conspiracy has beenalleged means that the theory does not support jurisdiction in the case.

10 Had a conspiracy been demonstrated, the defendant could be said tohave been engaged in a criminal enterprise, an essential element of which,the theft, occurred in the United States. Had Columba-Colella's intentanticipated and embraced the car theft in Texas, that act could be imputedto him. And since the United States is competent to proscribe the theft of

property within its borders, it would then have had the jurisdiction it assertsin this case.

11 The defendant did not conspire to steal the car, and the theft in no waydepended on any act or intent of the defendant. Whatever injury the ownerof the car suffered was complete before Columba-Colella's chance meeting

with Keith on the street in Juarez on the afternoon of August 22, 1978, andthe agreement their meeting produced. To put it differently, thoughColumba-Colella's agreement to fence the car followed Keith's crime, hisact, which may have been a crime under Mexican law, is legally unrelatedto the prior crime. His act was no constituent element of Keith's act and isnot made so by the coincidence that the property subject to their agreement

belonged to a citizen of the jurisdiction in which the theft occurred.12 The district judge relied on United States v. Fernandez, 5 Cir. 1974,496F.2d at 1294, in finding he had jurisdiction over the case. In Fernandez, thedefendant was charged with possessing, forging, and uttering stolen UnitedStates Treasury checks. The defendant argued that this Court lacked

jurisdiction because all the criminal acts involved were alleged to havetaken place not in the United States but in Mexico. In finding that there was

jurisdiction, we noted that the defendant's acts "prevent(ed) the normaldisbursement of Social Security Funds to those lawfully entitled to receivesuch funds". 496 F.2d at 1296. The Fernandez case parallels a case in the

Second Circuit, United States v. Pizzaruzzo, 2 Cir. 1968, 388 F.2d 8, Cert.denied, 392 U.S. 936, 88 S.Ct. 2306, 20 L.Ed.2d 1395. There the court heldit had jurisdiction to enforce a criminal penalty against an alien whoknowingly supplied false information to a federal official in the course ofobtaining a United States passport in an American consulate abroad.
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Although the Fernandez court referred to both the objective territorial and protective theories, the cases relied on the protective theory of jurisdiction.In each case the a lien intended to and did directly interfere with one of thefunctions of the United States government. The district court's reliance onFernandez is misplaced in this case, for here there was no interference witha governmental function, and therefore no reason to invoke the protectivetheory.IV.13 There is no question, of course, that Columba-Colella's conductsomehow affected a United States citizen. Had he been successful in hisenterprise, he would have prevented the stolen car from finding its way

back to its owner. But that an act affects the citizen of a state is not asufficient basis for that state to assert jurisdiction over the act. It is difficultto distinguish the present case from one in which the defendant hadattempted not to fence a stolen car but instead to pick the pockets ofAmerican tourists in Acapulco. No one would argue either that Congresswould be competent to prohibit such conduct or that the courts of theUnited States would have jurisdiction to enforce such a prohibition werethe offender in their control. Indeed, Congress would not be competent toattach criminal sanctions to the murder of an American by a foreignnational in a foreign country, even if the victim returned home andsuccumbed to his injuries. See Restatement (2d) of Foreign Relations Lawof the United States 18, 30(2).

14 These hypothetical cases involve criminal conduct that takes placewholly within a country, and whose character must therefore be determined

by the law of the place where the act was done. The present case is similar.We therefore follow the method set out in American Banana Co. v. UnitedFruit Co., 1909, 213 U.S. 347, 357, 29 S.Ct. 511, 53 L.Ed. 826, 832. Seealso United States v. Aluminum Company of America, 2 Cir. 1945, 148F.2d 416, 443. We find that because the defendant's act in this case is

beyond its competence to proscribe, Congress did not intend to assert jurisdiction here under 18 U.S.C. 2313.

15 In contradistinction to the present case are the drug importation cases ofthis Court. These cases have applied the federal drug laws to the conduct ofaliens, even when apprehended beyond United States coastal waters,engaged in importing illegal drugs. United States v. Postal, 5 Cir. 1979 ,589F.2d 862; United States v. Cadena, 5 Cir. 1979, 588 F.2d 100; United Statesv. Winter, 5 Cir. 1975, 509 F.2d 975, Cert. denied sub nom. Parks v. UnitedStates, 423 U.S. 825, 96 S.Ct. 39, 46 L.Ed.2d 41; Rivard v. United States, 5Cir. 1967 , 375 F.2d 882, Cert. denied sub nom. Groleau v. United States,389 U.S. 884, 88 S.Ct. 151, 19 L.Ed.2d 181; Marin v. United States, 5 Cir.1965 , 352 F.2d 174. The cases thus far decided have all involvedconspiracies, in which aliens who had themselves performed no act within

the United States have had imputed to them the acts of coconspiratorswhich were performed in the United States. We recently suggested inUnited States v. Postal, 5 Cir. 1979, 589 F.2d 862, 886 n.39, however, thatthere might be jurisdiction in a drug case under 21 U.S.C. 963 (1976),even absent overt acts performed within United States territory, if therewere proof of intent to produce territorial effects. Though the questionremains open whether jurisdiction would be proper in that case, we notethat such an assertion of jurisdiction would not be inconsistent with ourholding in the present case. If intent can be proved, the interrupted processof carrying out in the United States acts in contravention of United Stateslaws might be sufficient to serve as the basis of jurisdiction even absentovert acts committed here. In the present case, however, as we mentioned,the defendant's intent need never have touched upon the United States; hisacts may adequately be described without any reference to this country orany anticipated detrimental effects within it. Unlike the enterprise ofsmugglers on the high seas, Columba-Colella's act does not cast a sufficient

shadow on the United States to permit jurisdiction.

V.

16 The practical problem we face i s that our decision may encourage carthefts in border towns. Two facts limit this encouragement. In the ordinarycase, as the United States Attorney averred in oral argument before thisCourt, a conspiracy will be charged and proved. When this is possible,there is no jurisdictional problem. And even where a conspiracy cannot beshown, each sovereign may punish the wrongful act committed in itsterritory: when we release Columba-Colella, he will be subject to whateversanctions are applicable under the law of Mexico.

17 The result we reach is part of the price a nation must pay to supportmutuality of comity between sovereign nations.

18 The judgment is REVERSED and the charge is DISMISSED.

UNITED STATES v. BOWMAN.

Mr. Chief Justice TAFT delivered the opinion of the Court.

This is a writ of error under the Criminal Appeals Act (34 Stat. c. 2564, p.1246 Comp. St. 1704) to review the ruling of the District Court sustaininga demurrer of one of the defendants to an indictment for a conspiracy todefraud a corporation in which the United States was and is a stockholder,under section 35 of the Criminal Code, as amended October 23, 1918 ( 40Stat. 1015 Comp. St. Ann. Supp. 1919, 10199).

During the period covered by the indictment, i. e., between October, 1919,and January, 1920, the steamship Dio belonged to the United States. TheUnited States owned all the stock in the United States Shipping BoardEmergency Fleet Corporation. The National Shipping Corporation agreedto operate and manage the Dio for the Fleet Corporation, which under thecontract was to pay for fuel, oil, labor, and material used in the operation.The Dio was on a voyage to Rio Janeiro under this management. Wry washer master, Bowman was her engineer, Hawkinson was the agent of theStandard Oil Company at Rio Janeiro, and Millar was a merchant and shiprepairer and engineer in Rio. Of these four, who were the defendants in theindictment, the first three were American citizens, and Millar was a Britishsubject. Johnston & Co. were the agents of the National ShippingCorporation at Rio. The indictment charged that the plot was hatched byWry and Bowman on board the Dio before she reached Rio. Their plan wasto order, through Johnston & Co., and receipt for, 1,000 tons of fuel oil

from the Standard Oil Company, but to take only 600 tons aboard, and tocollect cash for a delivery of 1,000 tons through Johnston & Co., from theFleet Corporation, and then divide the money paid for the undelivered 400tons among the four defendants. This plan was to be, and was, made

possible through the guilty connivance of the Standard Oil agent,Hawkinson, and Millar, the Rio merchant, who was to, and did, collect themoney. Overt acts charged included a wireless telegram to the agents,Johnston & Co., from the Dio while on the high seas ordering the 1,000tons of oil. The Southern District of New York was the district into whichthe American defendants were first brought and were found, but Millar, theBritish defendant, has not been found.

The first count charged a conspiracy by the defendants to defraud the FleetCorporation, in which the United States was a stockholder, by obtainingand aiding to obtain the payment and allowance of a false and fraudulentclaim against the Fleet Corporation. It laid the offense on the high seas, out

of the jurisdiction of any particular state, and out of the jurisdiction of anydistrict of the United States, but within the admiralty and maritime

jurisdiction of the United States. The second count laid the conspiracy onthe Dio on the high seas and at the port of Rio Janeiro, as well as in the city.The third count laid it in the city of Rio Janeiro. The fourth count was formaking and causing to be made in the name of the Standard Oil Company,for payment and approval, a false and fraudulent claim against the FleetCorporation in the form of an invoice for 1,000 tons of fuel oil, of which400 tons were not delivered. This count laid the same crime on board theDio in the harbor of Rio Janeiro. The fifth count laid it in the city, and thesixth at the port and in the city.

No objection was made to the indictment or any count of it for lack of precision of fulness in describing all the elements of the crimes denouncedin section 35 of the Criminal Code as amended. The sole objection was thatthe crime was committed without the jurisdiction of the United States or ofany state thereof and on the high seas or within the jurisdiction of Brazil.The District Court considered only the first count, which charged theconspiracy to have been committed on the Dio on the high seas, and,having held that bad for lack of jurisdiction, a fortiori it sustained thedemurrer as the others.

The court in its opinion conceded that under many authorities the UnitedStates as a sovereign may regulate the ships under its flag and the conductof its citizens while on those ships, and cited to this point Crapo v. Kelly,16 Wall. 610, 623-632, 21 L. Ed. 430; United States v. Rodgers, 150 U. S.249, 260, 261, 264, 265, 14 Sup. Ct. 109, 37 L. Ed. 1071; The Hamilton,207 U. S. 398, 403, 405, 28 Sup. Ct. 133, 52 L. Ed. 264; American BananaCo. v. United Fruit Co., 213 U. S. 347, 29 Sup. Ct. 511, 53 L. Ed. 826, 16Ann. Cas. 1047; Wilson v. McNamee , 102 U. S. 572, 574, 26 L. Ed. 234;United States v. Smiley, 6 Sawyer, 640, 645, Fed Cas. No. 16,317. The

court said, however, that while private and public ships of the United Stateson the high seas were constructively a part of the territory of the UnitedStates indeed, peculiarly so, as distinguished from that of the States Congress had always expressly indicated it when it intended that its lawsshould be operative on the high seas. The court concluded that, because
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jurisdiction of criminal offenses must be conferred upon United Statescourts and could not be inferred, and because section 35, like all the othersections of chapter 4 (Comp. St. 10191-10252), contains no reference tothe high seas as a part of the locus of the offense defined by it, as thesections in chapters 11 and 12 of the Criminal Code (Comp. St. 10445-10483a) do, section 35 must be construed not to extend to acts committedon the high seas. It confirmed its conclusion by the statement that section35 had never been invoked to punish offenses denounced, if committed onthe high seas or in a foreign country.

We have in this case a question of statutory construction. The necessary

locus, when not specially defined, depends upon the purpose of Congress asevinced by the description and nature of the cr ime and upon the territoriallimitations upon the power and jurisdiction of a government to punishcrime under the law of nations. Crimes against private individuals or their

property, like assaults, murder, burglary, larceny, robbery, arson,embezzlement, and frauds of all kinds, which affect the peace and goodorder of the community must, of course, be committed within the territorial

jurisdiction of the government where it may properly exercise it. If punishment of them is to be extended to include those committed out sideof the strict territorial jurisdiction, it is natural for Congress to say so in thestatute, and failure to do so will negative the purpose of Congress in thisregard. We have an example of this in the attempted application of the

prohibitions of the antitrust law to acts done by citizens of the United Statesagainst other such citizens in a foreign country. American Banana Co. v.United Fruit Co., 213 U. S. 347, 29 Sup. Ct. 511, 53 L. Ed. 826, 16 Ann.Cas. 1047. That was a civil case, but as the statute is criminal as well as

civil, it appears an analogy.

But the same rule of interpretation should not be applied to criminal statuteswhich are, as a class, not logically dependent on their locality for thegovernment's jurisdiction, but are enacted because of the right of thegovernment to defend itself against obstruction, or fraud wherever

perpetrated, especially if committed by its own citizens, officers, or agents.Some such offenses can only be committed within the territorial jurisdictiondiction of the government because of the local acts required to constitutethem. Others are such that to limit their locus to the strictly territorial

jurisdiction would be greatly to curtail the scope and usefulness of thestatute and leave open a large immunity for frauds as easily committed bycitizens on the high seas and in foreign countries as at home. In such cases,Congress has not thought it necessary to make specific provision in the lawthat the locus shall include the high seas and foreign countries, but allows itto be inferred from the nature of the offense. Many of these occur in chapter

4, which bears the title 'Offenses against the Operation of the Government.'Section 70 of that chapter (Comp. St. 10238) punishes whoever as consulknowingly certifles a false invoice. Clearly the locus of this crime asintended by Congress is in a foreign country, and certainly the foreigncountry in which he discharges his official duty could not object to the trialin a United States court of a United States consul for crime of this sortcommitted within its borders. Forging or altering ship's papers is made acrime by section 72 of chapter 4 (Comp. St. 10240). It would be going toofar to say that because Congress does not fix any locus it intended toexclude the high seas in respect of this crime. The natural inference fromthe character of the offense is that the sea would be a probable place for itscommission. Section 42 of chapter 4 (Comp. St. 10206) punishes enticingdesertions from the naval service. Is it possible that Congress did not intend

by this to include such enticing done aboard ship on the high seas or in aforeign port, where it would be most likely to be done? Section 39 (Comp.St 10203) punishes bribing a United States officer of the civil, military, or

naval service to violate his duty or to aid in committing a fraud on theUnited States. It is hardly reasonable to construe this not to include suchoffenses when the bribe is offered to a consul, ambassador, and army or anaval officer in a foreign country or on the high seas, whose duties are

being performed there, and when his connivance at such fraud must occurthere. So, too, section 38 of chapter 4 (Comp. St. 10202) punishes thewillfully doing or aiding to do any act relating to the bringing in, custody,sale or other disposition of property captured as prize, with intent todefraud, delay or injure the United States or any captor or claimant of such

property. This would naturally often occur at sea, and Congress could nothave meant to confine it to the land of the United States. Again, in section36 of chapter 4 (Comp. St. 10200), it is made a crime to steal, embezzle,or knowingly apply to his own use ordinance, arms, ammunition, clothing,subsistence stores, money or other property of the United States furnishedor to be used for military or naval service. It would hardly be reasonable tohold that if any one, certainly if a citizen of the United States, were to steal

or embezzle such property which may properly and lawfully be in thecustody of army or naval officers either in foreign countries, in foreign ports or on the high seas, it would not be in such places an offense whichCongress intended to punish by this section.

What is true of these sections in this regard is true of section 35, underwhich this indictment was drawn. We give it in full in the margin . 1

It is directed generally against whoever presents a false claim against theUnited States, knowing it to be such, to any officer of the civil, military ornaval service or to any department thereof, or any corporation in which theUnited States is a stockholder, or whoever connives at the same by the useof any cheating device, or whoever enters a conspiracy to do these things.The section was amended in 1918 to include a corporation in which theUnited States owns stock. Tiis was evidently intended to protect theEmergency Fleet Corporation in which the United States was the sole

stockholder, from fraud of this character. That corporation was expected toengage in, and did engage in, a most extensive ocean transportation business, and its ships were seen in every great port of the world openduring the war. The same section of the statute protects the arms,ammunition, stores, and property of the army and navy from fraudulentdevices of a similar character. We cannot suppose that when Congressenacted the statute or amended it, it did not have in mind that a wide fieldfor such frauds upon the government was in private and public vessels ofthe United States on the high seas and in foreign ports and beyond the land

jurisdiction of the United States, and therefore intended to include them inthe section.

Nor can the much-quoted rule that criminal statutes are to be strictlyconstrued avail. As said in United States v. Lacher, 134 U. S. 624, 629, 10Sup. Ct. 625, 627 (33 L. Ed. 1080), quoting with approval from Sedgwick,Statutory and Const. Law (2d. Ed.) 288:

'Penal provisions, like all others, are to be fairly construed according to thelegislative intent as expressed in the enactment.'

They are not to be strained either way. It needs no forced construction tointerpret section 35 as we have done.

Section 41 of the Judicial Code (Comp. St. 1023) provides that:

'The trial of all offenses committed upon the high seas, or elsewhere out ofthe jurisdiction of any particular state or district, shall be in the districtwhere the offender is found, or into which he is first brought.'

The three defendants whe were found in New York were citizens of theUnited States, and were certainly subject to such laws as it might pass to protect itself and its property. Clearly it is no offense to the dignity or rightof sovereignty of Brazil to hold them for this crime against the governmentto which they owe allegiance. The other defendant is a subject of GreatBritain. He has never been apprehended, and it will be time enough toconsider what, if any, jurisdiction the District Court below has to punishhim when he is brought to trial.

The judgment of the District Court is reversed, with directions to overrulethe demurrer and for further proceedings.

CC | Transformed by Public.Resource.Org

1

Section 35 of the Criminal Code, as amended October 23, 1918 ( 40 Stat.1015), is as follows:

Whoever shall make or cause to be made or present or cause to be presented, for payment or approval, to or by any person or officer in thecivil, military, or naval service of the United States, or any departmentthereof, or any corporation in which the United States of America is astockholder, any claim upon or against the government of the United States,or any department or officer thereof, or any corporation in which the UnitedStates of America is a stockholder, knowing such claim to be false,fictitious, or fraudulent; or whoever, for the purpose of obtaining or aidingto obtain the payment or approval of such claim, or for the purpose andwith the intent of cheating and swindling or defrauding the government ofthe United States, or any department thereof, or any corporation in which

the United States of America is a stockholder, shall knowingly and willfullyfalsify or conceal or cover up by any trick, scheme, or device a materialfact, or make or cause to be made any false or fraudulent statements orrepresentations, or make or use or cause to be made or used any false bill,receipt, voucher, roll, account, claim, certificate, affidavit or deposition,
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knowing the same to contain any fraudulent or fictitious statement or entry;or whoever shall take and carry away or take for his own use or for the useof another, with intent to steal or purloin, any personal property of theUnited States, or any branch or department thereof, or any corporation inwhich the United States of America is a stockholder; or whoever shall enterinto any agreement, combination, or conspiracy to defraud the governmentof the United States, or any department or officer thereof, or anycorporation in which the United States of America is a stockholder, byobtaining or aiding to obtain the payment or allowance lowance of any falseor fraudulent claim; and whoever, having charge, possession, custody, orcontrol of any money or other public property used or to be used in themilitary or naval service, with intent to defraud the United States, or anydepartment thereof,

or any corporation in which the United States of America is a stockholder,or willfully to conceal such money or other property, shall deliver or causeto be delivered to any person having authority to receive the same anyamount of such money or other property less than that for which hereceived a certificate or took a receipt; or whoever, being authorized tomake or deliver any certificate, voucher, receipt, or other paper certifyingthe receipt of arms, ammunition, provisions, clothing, or other property soused or to be used, shall make or deliver the same to any other personwithout a full knowledge of the truth of the facts stated therein and withintent to defraud the United States, or any department thereof, or anycorporation in which the United States of America is a stockholder, shall befined not more than $10,000 or imprisoned not more than ten years, or both.And whoever shall purchase, or receive in pledge, from any person any

arms, equipment, ammunition, clothing, military stores, or other propertyfurnished by the United States, under a clothing allowance or otherwise, toany soldier, sailor, officer, cadet, or midshipman in the military or navalservice of the United States or of the National Guard or Naval Militia, or toany person accompanying, serving, or retained with the land or naval forcesand subject to military or naval law, having knowledge or reason to believethat the property has been taken from the possession of the United States orfurnished by the United States under such allowance, shall be fined notmore than $500 or imprisoned not more than two years, or both.

United States v. Romero-Galue case brief, 757 F.2d 1147 (11th Cir.1985)

United States v. Romero-Galue , 757 F.2d 1147 (11th Cir. 1985)

- Issue: whether Congress, in enacting Section 955(a)(c) (which makesit a crime for all vessels within US waters to knowingly or intentionally possess marijuana with the intent to distribute it), intended to reach possession of marijuana by foreigners aboard a foreign vessel on the highseas- The court finds that although the ship is outside US waters per Section955 (a)(c), if there is a treaty between the US and the country concernedwhich allows the US to enforce jurisdiction on a foreign ship, that treatywill define customs waters rather than Section 955(a)(c)

Thus, whether such a treaty exists between the US and Panama(here, the ship was Panamanian) is a matter for the lower court

- In dicta, the court addresses the protective principle:

In dicta, the court says that the US could still exercise jurisdiction over the Panamanian ship even if there is no treaty because the protective principle would allow the US to prosecute foreign nationals on foreign vessels on the high seasfor possession of narcotics (and in some way inherently harmedthe US)

The protective principle permits a nation to assert jurisdictionover a person whose conduct outside the nations territorythreatens the nations security or could potentially interfere withthe operation of its governmental functions.

Note: Orentlicher says that the US overstepped its jurisdictional boundarieswhen it tried to regulate foreign corporations under the protective principle(see Sensor case)

The Eichmann Case *

THE announcement by Prime Minister David Ben-Gurion of Israel onMay23, 1960, of the capture and impending trial of Nazi arch-criminalAdolf Eichmann initiated a chain of events which led, on June 23, to action

by the UN Security Council, and a month later, on July 22, to the expulsionof the Israeli ambassador from Argentina. Adolf Eichmann was commonlyrecognized to have been Hitler's chief adviser on the "Jewish problem" andin direct charge of killing the Jews of Germany, Austria, Czechoslovakia,Poland, and Hungary. Though not indicted during the Nuremberg trials, hewas cited by the Nuremberg tribunal as the person most responsible for the

Nazi program of killing the Jews.

Exchange of Notes between Israel and ArgentinaIn his May 23 announcement to the Keneset, Ben-Gurion said thatEichmann had been discovered by Israel's security services, was underarrest in Israel, and would stand trial there under the law for the trial of

Nazis and their collaborators. (This law, enacted in 1950, provided thedeath penalty for a "person who has committed . . . during the period of the

Nazi regime, in an enemy country, an act constituting a crime against theJewish people.") On the following day, Police Inspector-General Joseph

Nahamias, the head of Israel's security service, stated at a news conferencethat Eichmann had

been traced and captured by his agents alone. For some days after the Ben-Gurion announcement, the place of Eichmann'scapture remained a mystery; speculation ranged from various countries inEurope, the Middle East, and Latin America to Israel itself. Then rumorsthat Eichmann had been captured in Argentina appeared in the press ofIsrael, Argentina, and other countries. Responding to these rumors,Argentine Foreign Minister Diogenes Taboada, on June 1, requested thatIsraeli Ambassador Aryeh Levavi obtain full data on the Eichmann casefrom his government. Ambassador Levaviresponded with a note, dated June 3, dissociating his government from theactual capture of Eichmann. The note explained that the capture had beenaccomplished by a group of volunteers, including some Israelis, who hadremoved Eichmann from Argentina and turned him over to Israel's securityservices; that the Israeli government had first been informed of the captureon May 23, and only later of the place of capture, and that Eichmann hadagreed to go to Israel voluntarily to make known the story of his activitiesin Germany, "in order that the true picture of the facts be transmitted tofuture generations." The note also conveyed Israel's "regret" for anyviolation of Argentine law or sovereign rights that might have beencommitted by the volunteers. It asked the Argentine government to takeinto consideration "the fact that there has been brought before the tribunalthe man on whom weighs the responsibility for the assassination of millionsof persons belonging to the Jewish people that the volunteers, themselves

survivors of the massacre, placed this historic mission above any otherconsideration." The June 3 note, which contradicted Ben-Gurion's May 23statement thatEichmann had been apprehended by Israeli security services, failed tosatisfy Argentina and was quickly followed, on June 8, by a note from theArgentine foreign minister to Ambassador Levavi, conveying Argentina's"most formal protest for the illicit act committed in violation of one of themost fundamental rights of the Argentine state." The Argentine noterequested the punishment of the persons who had violated Argentineterritoryand the return of Eichmann "in the course of the present week." Itsuggested that if Israel complied, it could apply for Eichmann's extradition"through means contemplated by international law," but it also observedthat if extradited on the charge of genocide, he had to be tried either inGermany where the crime took place or before an international court. IfIsrael did not comply, it warned, Argentina would complain to the UN

under the articles of the UN charter pertaining to the "peaceful settlement ofdisputes." It conceded that Argentina understood the sentiments of theJewish people in regard to Eichmann, but insisted that this did not alterIsrael's obligation to abide by the rules of international law. It rejected as"gratuitous" the charge in the Israeli note to the effect that "numerous Nazisreside in Argentina."

In a conciliatory personal note to Argentine President Arturo Frondizi,dated June 7, Prime Minister Ben-Gurion had expressed the hope thatArgentina would place the moral considerations of the case above thetechnicalities of international law. He described Eichmann's role ofexecutioner of European Jewry, expressed his conviction that "only a veryfew persons in the world will fail to understand the profound motivationand supreme moral justification of this act," and asked for acceptance of"the expression of our most sincere regret for all the violations of the lawsof the

Argentine Republic that may have occurred. . . ."Despite the prime minister's note, Argentina notified the president of theSecurity Council, Tingfu F. Tsiang, on June 10, of its intention to complainto the council unless Eichmann was promptly returned by Israel. On thesame day, Argentina recalled its ambassador, Rudolfo Garcia Arias, from


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Israel. On June 14, Foreign Minister Golda Meir met with Mario Amadeo,Argentine ambassador to the UN. She rejected his proposal that Eichmann

be kept in custody in the Argentine embassy in Tel-Aviv pending a decision by the International Court of Justice as to which court should try him.

UN DebateArgentina thereupon, on June 15, submitted a formal complaint to the UNSecurity Council under Article 34 of the Charter, which provides that "theSecurity Council may investigate any dispute, or any situation which mightlead to international friction or give rise to a dispute, in order to determinewhether the continuance of the dispute or situation is likely to endanger themaintenance of international peace and security."

The complaint stated:. . . the illicit and clandestine transfer of Eichmann from Argentine territoryconstitutes a flagrant violation of the Argentine state's right of sovereigntyand the Argentine government is legally justified in requesting reparation.That right cannot be qualified by any other considerations, even thoseinvoked by the government of Israel with regard to the importanceattaching to the trial of a man accused of responsibility for exterminations,though the Argentine government and people understand those reasons totheir full value. Any contrary interpretation would be tantamount toapproving the taking of the law into one's own hands and the subjecting ofinternational order to unilateral acts which, if repeated,would involve undeniable dangers for die preservation of peace. . . . A

political question is involved which, apart from gravely prejudicingArgentine sovereignty, constitutes a precedent dangerous for international

peace and security, for the maintenance of which the Security Council bears primary responsibility.The Security Council considered the Argentine complaint on June 22 and23 in an atmosphere unusually free of rancor and recrimination. All

participants in the debate expressed their appreciation of the merits of the positions of both litigants. On the one hand, they acknowledged the justiceof Argentina's grievance over the violation of its sovereignty, and that itmight set a dangerous precedent to ignore Israel's action. At the same time,they recognized the enormity and uniqueness of Eichmann's crimes and theintensity of feeling engendered by them. The climate was conduciveto the ultimate adoption of a compromise resolution designed to appease

both Argentine and Israeli sentiment, but not to disturb the status quo.Ambassador Amadeo began his opening statement, on June 22, by referringto the hitherto cordial relations between Argentina and Israel and to thefavorable situation of the Jews of his country, who enjoyed full equality oftreatment. After reviewing the sequence of events leading up to thecomplaint to the Security Council, he charged the government of Israel with

violation of Argentine sovereignty. He dismissed the "so-called consent" ofEichmann to be taken to Israel, as well as the suggestion that the capturewas carried out by volunteers. In accepting Eichmann from the "volunteers"and announcing its intention to try him, he contended, Israel becameresponsible for their acts. He demanded that Israel condemn thoseresponsible for the capture and make reparations to Argentina. He basedArgentina's complaint on the "illegal exercise of foreign authority onArgentine territory," rather than on Israel's violation of the rulesof territorial asylum or of the conventions protecting political refugees: . . .the principal threat against international peace and security . . . arises out ofthe great importance of the principle which is compromised because of thisviolation. This principle is the absolute respect which states owe to eachother and which excludes the exercise of jurisdictional acts inforeign territory. . . . If this principle were to become obsolescent, if eachstate feels authorized, every time it sees fit to do so, to supplant or replacethe authority of another state and take justice into its own hands,

international law would rapidly become the law of the jungle. Who candeny that the UN is competent . . . to take the necessary measures that suchastate of affairs shall not occur? . . .He disputed the interpretation of the charter which would limit theintervention of the UN to situations posing imminent danger of ageneralized conflict or war. "International peace and security is endangeredwhen there exists a possibility that between two states even thoughneither one of the two is a great world power, and even though they aredistant geographically there would arise a situation of hostility whichgravely affects their relations."Although Amadeo did not formally base his complaint on the violation ofthe concept of political asylum, he did, in fact, refer to this consideration,even making the point that Eichmann had come to Argentina under the veryliberal admissions policy from which Jewish refugees had benefited:. . . in defending our rights we are defending the security of millions of men

and women who seek protection outside their native land in order to flee persecution and in order to found a new home. . . . It has not always beeneasy to separate the ore from the pure metal, but if we had gone into a greatinvestigation of background, perhaps many of those who accuse us today of

protecting undesirable refugees would not be alive.

The Argentine representative concluded by formally introducing hisresolution, which accused Israel of having violated the sovereignty ofanother state and sought "adequate reparations" (a term he did not define).Israel Foreign Minister Golda Meir, who attended the session to representher government in this debate, denied the presence of danger tointernational peace and security and challenged the jurisdiction of thecouncil under Article 34.While reiterating Israel's regret concerning, the violations of Argentine law

by individual Israelis, she denied any violation of Argentine sovereignty bythe government of Israel. She expressed appreciation for the favorabletreatment accorded Jews in Argentina, but objected to Amadeo's equatingof Eichmann's illegal entry with the admission of Jewish refugees from

Nazi oppression. "I find it quite extraordinary that . . . the distinguishedrepresentative of Argentina found it possible . . . to speak in the same

breath of Eichmann and his victims." Most of her speech, however, wasgiven to a detailed review of Eichmann's crimes, in the light of which thelegal violations entailed in his capture had to be judged. In concluding, sheasked Amadeo to define the meaning of the expression "adequatereparation," and expressed her government's view that "the expressions ofregret which we have already made to the Argentine government and whichwere repeated here by me today constitute adequate reparation." In dosing,she demanded:Is this a problem for the Security Council to deal with? Is this a threat to

peace Eichmann brought to trial by the very people to whose total physical annihilation he dedicated all his energies, even if the manner of hisapprehension violated the laws of the Argentine? Or did the threat to peacelie in Eichmann at large, Eichmann unpunished, Eichmann free tospread the poison of his twisted soul to a new generation? The Sovietrepresentative, Arkody Sobolev, while supporting the Argentine complaintregarding the violation of her sovereignty, centered his presentation on thefailure of the Western powers to carry out their obligations underagreements made during World War II with regard to the punishmentof war criminals. He charged that some of them had found asylum inArgentina and many of them still occupied leading posts in the FederalRepublic of Germany, and in the organs of the North Atlantic TreatyOrganization.The representatives of Italy, Ecuador and France, too, while expressingsympathy with Argentina's concern over violation of its sovereignty,acknowledged the special character of the case. United States Ambassadorto the UN Henry Cabot Lodge, similarly, paid tribute to the merits of both

positions. He proposed that the Argentine resolution be approved, but withtwo amendments: one, citing the persecution of the Jews under the Nazisand the concern of people in all countriesthat Eichmann be brought to justice; and the other expressing the hope that

the traditional friendly relations between Argentina and Israel would beadvanced.On June 23, before the vote on the Argentine resolution, the United Statesrepresentative explained to the council that his support of the resolutionwas conditioned on the understanding that . . . adequate reparations willhave been made by the expression of views by the Security Council in the

pending resolution taken together with the statement of the ForeignMinister of Israel making apology on behalf of the government of Israel.We therefore think that when we have adoptedthe pending resolution adequate reparation will have been made, and thatthe incident will then be closed. The normal, friendly relations between thetwo governments can then progress.This "understanding" was also endorsed by the representatives of theUnited Kingdom and France. Following the vote, the Soviet representativeexpressed his understanding that the term "reparation" could never be usedas a basis for demanding the return of Eichmann to Argentina.

The resolution was adopted by a vote of 8-0, with the Soviet Union andPoland abstaining; the nations voting for it were the United States, UnitedKingdom, France, Ceylon, Nationalist China, Italy, Ecuador, and Tunisia.As adopted, the preamble to the resolution, including the United Statesamendment, read:Mindful of the universal condemnation of the persecution of the Jews underthe Nazis and of the concern of people in all countries that Eichmannshould be brought to appropriate justice for the crimes of which he isaccused. . . .The operative paragraphs of the resolution read as follows:The Security Council . . .1. Declares that acts such as that under consideration, which affect thesovereignty of a Member State, and therefore cause international friction,may if repeated, endanger international peace and security;2. Requests the government of Israel to make appropriate reparation inaccordance with the Charter of the United Nations and the rules of

international law;3. Expresses the hope that the traditionally friendly relations betweenArgentina and Israel will be advanced.With the adoption of the resolution world-wide attention to the disputediminished. However, friction between Argentina and Israel continued.


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On June 28 Argentina sent Israel a note asking for an official statement ofintent regarding the council's recommendation for "adequate reparation."On July 5, Israel replied with a note citing the "understanding" of the majorsupporters of the council resolution and asking that Argentina consider thecase closed. On July 22, Argentina declared Israeli Ambassador Levavi

persona non grata. On July 23, Israel expressed official "regret" over theexpulsion of its ambassador. On July 25, Shabbethai Rosenne, legal adviserto the Israel Foreign Ministry, arrived in Argentina to try to rectify relations

between the countries.On August 4, both governments issued a joint statement announcing thatthe "incident" between them was closed. The statement said that the twogovernments had been "animated by the wish to comply with the resolutionof the Security Council of June 23, in which the hope was expressed thatthe traditional friendly relations between the two countries will beadvanced."The statement made no reference to the "adequate reparation" thatArgentina had been demanding.On October 17, 1960, diplomatic relations between Argentina and Israelwere officially resumed after a four-month break, with Joseph Avidar asIsrael's new ambassador to Argentina, and Rogelio Iristany as the newArgentine ambassador to Israel.

Legal and Moral IssuesBesides causing a temporary rift in the hitherto friendly relations betweenIsrael and Argentina, the circumstances of Eichmann's capture provokedmany political passions. The debate, which for a time occupied theattention of the world press and other news media, confronted the criticsand supporters of the Israeli position with highly ambiguous and complexlegal and moral issues.It revealed, in the minds of most of the disputants, a confusion of questionsof international law with those of domestic law, and of law with morals. Indispute were issues of jurisdiction, retroactivity of penal legislation, theright to represent the Jewish people, the use of admittedly improper meansto accomplish an admittedly proper end, and others.

Critics of the "legality" of Israeli conduct leveled, among others, thefollowing charges:since the means used to apprehend Eichmann were illegal,Israel had no valid jurisdiction over him; under the "territorial"principle Eichmann could be properly tried only in the jurisdictionwhere his crimes had been committed, namely, Germany someacknowledged that other countries of Central and Eastern Europe mightclaim jurisdiction but not in Israel , which did not even exist when thecrimes were committed ;

Israel was not entitled to jurisdiction even under principles of jurisdictionwith lesser status than the "territorial" principle, such as the principles of"active nationality" (country of nationality of the accused) or "passivenationality" (country of nationality of the victims);it was improper to try Eichmann under Israel's Nazi and Nazi Collaborators

Law of 1950, which, having beenenacted years after the commission of Eichmann's crimes, was an ex post

facto law; Eichmann should be tried by an international tribunal;Israel had no legal some also said, moral right to represent the Jewish

people, but only her own citizens.

Apart from the strictly legal criticisms, a charge of immoral conductwas leveled against Israel, namely, that it had resorted to espionageand invasion of another state's sovereignty, which constituted immoralmeans even if theend the apprehension of an internationally wanted criminal was

proper.

It was also urged that it was in the interest of Israel itself and of Jewseverywhere to make dear that it was against humanity as a whole, and notsimply against Jews, that Eichmann's crimes had been directed. A trial

before aGerman court or an international tribunal would have this significance in away that a trial in Israel would not.Spokesmen for and supporters of Israel defended its action on variousgrounds, legal and moral. They stressed the distinction betweeninternational and domestic law, pointing out that there exist no acceptedrules ofinternational law limiting the penal competence of national courts, whichare free to establish their own standards. Thus, international law does notdeny jurisdiction to a state because it did not comply with regularextradition procedures, or because in the process of apprehending an

accused, it violated the domestic law of another state. Further, it is theaccepted position in the fundamental law of most states, the United Statesincluded, that the manner in which a criminal suspect is brought before acourt has no bearing on the right to try him.

As to the several principles of jurisdiction that have achieved somerecognition in international law ("territorial," "active nationality," "passivenationality," " universal crime"), defenders of the Israeli actionsuggested an analogy between Eichmann's crimes (which were in theclass of "universal crimes" which placed him in the category of"enemies of the human race") and the crime of piracy, in relation towhich, by international law , all nationalcourts have jurisdiction. By this standard, Israel can claim jurisdiction as amember of the international community, and need not even confront thequestion of its right to speak in the name of the Jewish people.

(In support of this position, the Moscow Declaration of 1943 was cited, tothe effect that the Nazi crimes did not constitute crimes of any "specificgeographical locality," and hence that the "territorial" principle didnot apply .)Moreover, the Israeli reasoning proceeded, if necessary, Israel's jurisdictioncould be defended even under the "territoriality" and "passive nationality"

principles.The rationale of the first, based as it is on the proposition that the best placeto try a crime is the territory where it was committed

since most of the witnesses and evidence are likely to be there isapplicable to Israel. For even though the crime itself was not committedwithin its boundaries, the greater part of surviving witnesses and evidenceare to be found there. As to the "passive nationality" principle, moresurviving victims are located in Israel than in any other country.The Israeli spokesmen also denied that Eichmann would be tried underan ex post facto law, inasmuch as the Nazi and Nazi Collaborator Law of1950 was "declaratory" and not "constitutive "; that is, it merely restated

preexistinginternational law in the language of national legislation. The act inquestion murder (genocide) obviously had not been designated a crimefor the first time in 1950, but had been recognized under all prior legalsystems, in every age and continent. Hence, the accused could not claimthat at the time he perpetrated his acts he did not know they were wrong.His crimes were merely codified "declared" not "constituted" in the

Nuremberg Charter, the principles of which, in turn, were translated intodomestic law by Israel in 1950.Furthermore, they pointed out, the ex post facto rule applied only tostatutory and not to customary law, and international penal law is by itsnature customary. Moreover, even if it is ex post facto, a sovereign state isnot stopped by international law from making laws with retroactive effect.The assertion that Eichmann should be tried by an international tribunalwas refuted as unrealistic by the Israelis, who pointed out that the

jurisdiction of the present International Court of Justice is limited only to

disputes between states; that the Nuremberg tribunals had been disbanded adecade earlier; that proposals for establishing a new permanentinternational criminal court had made no headway, and that, in the courseof the Security Council debate, not one member had proposed the lattermeasure. They also rejected the implication that they had prejudiced, bytheir action, the right of refuge. In this connection, they cited article 14 ofthe Declaration ofHuman Rights, which explicitly excluded war criminals from the protectionof this right.On the moral question, they pointed out that Israel had every right to act on

behalf of the six million murdered Jews and their survivors, which right,incidentally, was acknowledged by West Germany when it signed a specialreparations agreement with Israel. The fact was that, except for Israel, noother nation had manifested any particular interest in seeking out Eichmannand bringing him to justice. As to the manner of apprehension of Eichmann,it would be even more immoral to permit such a criminal to remain

unpunished.Finally, the Israelis asserted, their main object was not to punish Eichmann for no merely human punishment could be great enough but rather touse his trial to spread on the historical record the authentic history of the

Nazi crimes against the Jews in its full magnitude and horror, which hadnot yet been done and which only an Israeli court could be relied on to doadequately.

John Demjanjuk: Prosecution of A Nazi Collaborator

Overview Born in Ukraine, John (Iwan) Demjanjuk was the defendant in fourdifferent court proceedings relating to crimes that he committed whileserving as a collaborator of the Nazi regime.

Investigations of Demjanjuk's Holocaust-era past began in 1975.Proceedings in the United States twice stripped him of his Americancitizenship, ordered him deported once, and extradited him from the United


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States twice to stand trial on criminal charges, once to Israel and once toGermany. His trial in Germany, which ended in May 2011, may be the lasttime that an accused Nazi-era war criminal stands trial. If so, it would markthe culmination of a 65-year period of prosecutions that began with theInternational Military Tribunal at Nuremberg i n 1945.

Some facts of Demjanjuk's past are not in dispute. He was born in March1920 in Dobovi Makharyntsi, a village in Vinnitsa Oblast of what was thenSoviet Ukraine. Conscripted into the Soviet army, he was captured byGerman troops at the battle of Kerch in May 1942. Demjanjuk immigratedto the United States in 1952 and became a naturalized US citizen in 1958.

He settled in Seven Hills, Ohio, a suburb of Cleveland, and worked formany years in a Ford auto plant.

First Trial: Israel, 1987 The US Department of Justice (DOJ) began investigating Demjanjuk in1975 and filed denaturalization proceedings against him in 1977, allegingthat he had falsified his immigration and citizenship papers in order toconceal World War II service at the Treblinka killing center.

The case had begun as an investigation into the Sobibor camp, due toDemjanjuk's alleged service at that killing center and to the testimony of aSoviet witness named Ignat' Danil'chenko in the late 1940s. Danil'chenkohad stated that he knew Demjanjuk from their service together in Sobiborand at the Flossenbrg concentration camp until 1945. After Jewishsurvivors viewing a photo spread identified Demjanjuk as serving at

Treblinka near the gas chambers, however, US government officials instead pursued the Treblinka charges. In 1979, the newly created Office of SpecialInvestigations (OSI) in the DOJ took over prosecution of the case.

Following a lengthy investigation and a 1981 trial, the US District FederalCourt in Cleveland stripped Demjanjuk of his US citizenship. As USauthorities moved to deport Demjanjuk, the Israeli government requestedhis extradition. After a required hearing, US authorities extraditedDemjanjuk to Israel to stand trial on charges of crimes against the Jewish

people and crimes against humanity. Demjanjuk was only the second person to be tried for these charges in Israel. The first, Adolf Eichmann, was found guilty in 1961 and executed in 1962.

The trial opened in Jerusalem on February 16, 1987. The prosecutionclaimed that while Demjanjuk was a prisoner of war (POW) being held by

the Germans, he volunteered to join a special SS ( Schutzstaffel ; ProtectionSquadrons) unit at the Trawniki t raining camp (near Lublin, Poland), wherehe trained as a police auxiliary to deploy in Operation Reinhard, the plan tomurder all Jews residing in German-occupied Poland. The prosecutioncharged that he was the Treblinka killing center guard known to prisonersas Ivan the Terrible, and that he had operated and maintained the dieselengine used to pump carbon monoxide fumes into the Treblinka gaschambers. Several Jewish survivors of Treblinka identified Demjanjuk asIvan the Terrible, key evidence placing hi m at the killing center.

Trawniki Training Camp A critical piece of evidence was Demjanjuk's Trawniki camp identificationcard, located in a Soviet archive. The authorities at Trawniki issued suchdocuments to men detailed to guard detachments outside the camp.Demjanjuk's defense claimed that the card was a Soviet-inspired forgery,despite several forensic tests that verified it as authentic. Demjanjuk, then

67 years old, testified on his own behalf, claiming that he had spent most ofthe war as a POW in German captivity in a camp near Chelm, Poland.

Though key to the American government's and the Israeli prosecution'scase, the identity card did not place Demjanjuk in Treblinka, but rather as aguard at an SS estate in Okzw, near Chelm in September 1942, and as aguard at the Sobibor killing center from March 1943. Though the cardcontained some information that was inconsistent with the testimony of theTreblinka survivors, it was the only document available that placedDemjanjuk at Trawniki as a police auxiliary (that is, in the pool ofauxiliaries from which Treblinka guards were selected). No wartimedocumentary evidence that definitively placed Demjanjuk at Treblinka hasever surfaced.

Demjanjuk's Tattoo

Another piece of evidence in the prosecution's case involved scars underDemjanjuk's left arm, the remains of a tattoo identifying his blood type. SSauthorities introduced the practice of blood-type tattooing into the Waffen-SS (Military SS) in 1942. Some members of SS Death's Head Units in theGerman concentration camp system also received such tattoos, as they were

considered linked to the Waffen SS administratively after 1941. Nevertheless, blood-type tattooing was never consistently implemented.Hence this physical evidence only suggested, but by no means proved, thatDemjanjuk might have served as a concentration camp guard.

The existence of scars from an SS tattoo, particularly given confusion in popular culture between the blood-type tattoo (mandatory) and the SS-runetattoo (voluntary), misled prosecutors both in the United States and Israel asto its significance. There is no evidence that POWs trained as policeauxiliaries at Trawniki received such tattoos.

Israeli Verdict and Appeal Based primarily on the survivor identifications, the Israeli court convictedDemjanjuk and, on April 25, 1988, sentenced him to death, only the secondtime that an Israeli court had imposed capital punishment upon a convicteddefendant (the first being Eichmann) .

As Demjanjuk's appeal made its way to the Israeli Supreme Court, theSoviet Union disintegrated in 1991. Hundreds of thousands of pages of

previously unknown documents became available to both the prosecutionand the defense. In the records of the former Ukrainian KGB in Kiev, theDemjanjuk defense team found dozens of statements of former Treblinkaguards whom Soviet authorities had tried in the early 1960s.

None of them identified Demjanjuk as having served at Treblinka. Theydid, however, consistently refer to an Ivan Marchenko, who had served as agas motor operator at Treblinka from the summer of 1942 until the prisoneruprising in 1943, and who had stood out as a particularly cruel policeauxiliary, perpetrating acts that were consistent with the memory of theJewish Treblinka survivors. After returning to Trawniki in August 1943,Marchenko transferred to Trieste, Italy and disappeared towards the end ofthe war. His fate remains unknown.

The existence of these statements alone, however, created sufficientreasonable doubt that Demjanjuk ever served at Treblinka, moving theIsraeli Supreme Court to overturn Demjanjuk's conviction on July 29, 1993,without prejudice, signifying that the Israeli prosecution could choose to tryDemjanjuk on charges related to other crimes.

New Evidence from Former Soviet Archives Such a proceeding became possible upon the discovery of internal Trawnikitraining camp personnel correspondence in the Archives of the FederalSecurity Service of the Russian Federation in Moscow. These documents

placed Demjanjuk at the Sobibor killing center as of March 26, 1943, and atthe Flossenbrg concentration camp as of October 1, 1943. The evidence

placing him at Sobibor was consistent with the information on Demjanjuk'sTrawniki identification card and with Danil'chenko's testimony.

Moreover, after Demjanjuk's extradition to Israel, investigators at the OSI,while reviewing original personnel and administrative records fromFlossenbrg, found references to Demjanjuk's name linked to his Trawnikimilitary identification number (1393), thus independently corroboratingDanil'chenko's testimony that Demjanjuk served at Flossenbrg.

In the summer of 1991, an OSI investigator searching in the Lithuanian National Archives in Vilnius for documentation related to a Lithuanian

police battalion found by chance a document that placed Demjanjuk as amember of a Trawniki-trained guard detachment stationed at the Majdanekconcentration camp between November 1942 and early March 1943.

American Citizenship Restored, Then Revoked Again After his original extradition to Israel, Demjanjuk's family had fi led aFreedom of Information Act request with the US Department of Justice toobtain access to all investigative files at the OSI that related to Demjanjuk,Trawniki, and Treblinka. Upon receiving these files, and after years oflitigation, Demjanjuk's American defense team filed a suit against the USgovernment to set aside the judgment stripping him of his citizenship, andaccused the OSI of prosecutorial misconduct.

Meanwhile, despite having the legal option, Israeli authorities declined to prosecute Demjanjuk for his activities at Sobibor, and prepared to release

him. Based on a June 1993 finding of a US Special Master that OSI hadinadvertently withheld documentation that might have been helpful to theDemjanjuk defense in 1981, the Sixth Circuit Court of Appeals inCincinnati ordered the Attorney General of the United States, Janet Reno,not to bar Demjanjuk's return to the United States. After five more years of
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litigation, the District Court in Cleveland restored Demjanjuk's UScitizenship on February 20, 1998, but without prejudice, leaving the optionopen for OSI to proceed with a new case based on new evidence.

With five years of careful review into thousands of Trawniki-relateddocuments that had been unavailable before 1991, OSI investigators couldtrack through wartime documents Demjanjuk's entire career as a Trawniki-trained guard and as a concentration camp guard from 1942 to 1945. Withthis new evidence, the OSI team had also developed a more thoroughlydocumented understanding of the importance of the Trawniki camp duringthe Holocaust as well as the process of how camp authorities made

personnel assignments.

In 1999, OSI filed a new denaturalization proceeding against Demjanjuk,alleging that he served as a Trawniki-trained police auxiliary at Trawnikiitself, Sobibor, and Majdanek, and, later, as a member of an SS Death'sHead Battalion at Flossenbrg. As a result, in 2002 Demjanjuk again losthis American citizenship, this time for good. After a federal appeals courtupheld this decision, OSI filed a deportation proceeding in December 2004.One year later, in December 2005, a US Immigration Court orderedDemjanjuk deported to his native Ukraine.

Demjanjuk appealed the deportation order on various grounds, includingthe argument that, given his age and poor health, deportation wouldconstitute torture against which he was seeking protection under the United

Nations Convention Against Torture. On May 19, 2008, the US Supreme

Court declined to review his appeal. That same year, German authoritiesexpressed interest in prosecuting Demjanjuk on charges of accessory tomurder during his service at Sobibor.

Second Trial: Germany, 2009 Demjanjuk was removed from the United States to Germany in May 2009.Upon his arrival, German authorities arrested him and held him in Munich'sStadelheim prison.

In July 2009, German prosecutors indicted Demjanjuk on 28,060 counts ofaccessory to murder at Sobibor. The German jurisdictional authority restedon the murder of people brought to Sobibor on 15 transport trains from theWesterbork camp in the Netherlands between April and July 1943, amongwhom were individual German citizens who had fled to Holland in the1930s.

Demjanjuk, at 89 years old, claimed that he was too frail to stand trial, butthe court ruled that the trial could proceed with two 90-minute sessions perday. In November 2009, he again sat in the defendant's dock. During thistrial, the evidence implicating Demjanjuk rested not on survivor testimony,

but on wartime documentation of his service at Sobibor. Since the earlierwitnesses were now deceased, the Munich court accepted that survivortestimony be read into the proceeding to facilitate findings of mass murderand determine the identity and citizenship of many of the victims.

After 16 months of trial, proceedings closed in mid-March 2011. On May12, 2011, Demjanjuk was convicted and sentenced to five years in prison.He was freed pending appeal of the conviction. Demjanuk died in a Germannursing home on March 17, 2012.

International Interest The trials of John Demjanjuk have attracted global media attention for threedecades. These legal battles underscore the interdependence of thehistorical record and the long search for justice to redress crimes againsthumanity.

UNITED STATES OF AMERICA, - v. - USAMA BINLADEN

n1 This opinion deals solely with defendants claims that theCourt lacks jurisdiction. Other matters raised in defendantspending motions will be dealt with in succeeding opinions.

[**2]

The sixth superseding indictment in this case (theIndictment) charges fifteen defendants with conspiracy tomurder United States nationals, to use weapons of massdestruction against United States nationals, to destroyUnited States buildings and property, and to destroy UnitedStates defense utilities. The Indictment also chargesdefendants Mohamed Sadeek Odeh, Mohamed RashedDaoud al- Owhali, and K halfan Khamis Mohamed, amongothers, with numerous crimes in connection with the August1998 bombings of the United States Embassies in Nairobi,Kenya, and Dar es Salaam, Tanzania, including 223 countsof murder. The Indictment also charges defendant Wadih elHage with numerous perjury and false statement counts.Six of the Defendants are presently in the custody of theBureau of Prisons: Mamdouh Mahmud Salim, Ali Mohamed,Wadih El Hage, Mohamed Rashed Daoud Al-Owhali, KhalfanKhamis Mohamed, and Mohamed Sa deek Odeh (Odeh).Presently before the Court is Odehs Motion to DismissCounts 5-244 for Lack of Jurisdiction, in which the otherdefendants join. For the reasons given below, we grantOdehs Motion as to Counts 234, 235, 240, and 241, butdeny it as to Counts 5-233, 236-239, and [**3] 242-244.

Discussion

Odeh argues that most of the counts charged in theIndictment must be dismissed by this Court bec

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