Nottebohm's Nightmare: Have We Exorcised the Ghosts of WWII Detention Programs or Do They Still Haunt Guantanamo?

Abstract:     
Frederich Nottebohm was the subject of a famous 1956 International Court of Justice (ICJ) decision that still has resonance today. The story of how Mr. Nottebohm, a wealthy German-born businessman living in Guatemala, came to be the subject of a case before the world court exposes a little known program run by the United States during World War II in which the United States pressured Latin American countries like Guatemala to identify persons of German nationality or ancestry and turn them over to the United States for internment for the duration of the war. Many of these persons were assumed to be Nazi sympathizers and were arrested and detained for lengthy periods of time on the basis of mere accusations unsupported by any real investigation or evidence. Sadly, as with the Japanese-Americans who were forced into detention camps during World War II, U.S. law at the time allowed these arrests and detentions of persons with German connections with little or no proof of Nazi sympathies, much less subversive activities.

An examination of the historical record reveals that there are many parallels between the U.S.-Latin American Detention Program during WWII and the treatment of detainees at Guantanamo Bay today. This article begins by telling the story of how Mr. Nottebohm and his extended family came to be caught up in the U.S.-Latin American Detention Program. It relates the motivations behind the creation of the program and analyzes the legality of the program under both United States and international law existing at the time. The article then examines the extent to which the law has evolved and whether the changes in the law would lead to a different result today. The article then draws parallels between the arrest, detention and trial of alleged “alien enemies” during World War II and those practices being employed today with respect to alleged “unlawful enemy combatants” in the current fight against terrorism. Finally, the article suggests some lessons that may be learned regarding the treatment of so-called “alien enemies” during times of conflict that have relevance for current U.S. policies regarding the arrest, detention and trial of suspected foreign terrorists.

Number of Pages in PDF File: 73

Keywords: Nottebohm, enemy aliens, terrorists, indefinite detention, due process, human rights

Accepted Paper Series