Archive/File:
people/e/eichmann.adolf/transcripts/Sessions/Defence-Submission-01-02
Last-Modified: 1999/06/09

3. Moreover, according to the aforesaid law, Israeli courts
are vested with criminal jurisdiction irrespective of the
nationality of the victims injured by the offences (see art.
1 (a)). This principle applies quite unequivocally to crimes
against humanity and war crimes, while a superficial glance
might show that the restriction based on the so-called
passive personality principle seems to have been adopted as
to the so-called crimes against the Jewish People. However,
a thorough inspection proves that even in that case it only
looks as if a restriction (or an application of the passive
personality principle) has been made. For Israeli
jurisdiction is claimed in respect of offences committed
against Jews of any nationality whatsoever (see sec. 1(a)
and (b) of the law); the "restriction" is made, therefore,
only with regard to the victim's belonging to a certain race
(his religious belief, e.g., is not relevant either), but
not with regard to his nationality which alone would be
relevant according to the tests applying under the passive
personality principle. It is true that the law does not
provide for a detailed definition of the term "the Jewish
People"; however, when read together with the provisions of
the law as to its territorial application (see "enemy
country," as described above), there cannot be any doubt
that for the purpose of the aforesaid law the meaning of the
"Jewish People" is the total number of all members of the
Jewish race in the world and that this term has no
connection, and certainly is not identical, with the nation
of the new State of Israel nor even with the (Jewish)
inhabitants of the former Mandatory territory of Palestine.

4. Contrary to the provisions of the Penal Law Revision
(Offences Committed Abroad) Law (sec. 3) - which excludes
Israeli jurisdiction where the offender has been convicted
or acquitted abroad of the same offence - the Nazis and Nazi
Collaborator (Punishment) Law excludes, as a rule, in sec. 9
(a) the defence of "autrefois convict" or "autrefois acquit"
("ne bis in idem"). Sec. 6 (b) provides only - as a
directory provision - that the Israeli court, when
sentencing the convicted offender, shall take into
consideration the punishment undergone abroad.

5. By penalizing membership in an "enemy organization" and
by referring to art.9 of the Charter of the International
Military Tribunal set forth in the annex to the Four Power
Agreement of 8 May 1945, Israel is claiming international
jurisdiction (the exact character of which - direct or
indirect? - cannot yet be determined in this context in
detail) which is to be exercised by a national court.

6. Further additional aggravations to the detriment of the
Accused constituting additional evidence for the exceptional
character  of the Nazi and Nazi Collaborators (Punishment)
Law, are provided for, e.g. in sec. 8 - which excludes
various defences (in the nature of justification and
exculpation), in sec. 12 making exceptional provisions for
the periods of prescription, and in sec. 15 which enables
the court to depart from the application of the existing
rules of evidence, as the court in its discretion sees fit.

B: Basis and limits of Israeli criminal jurisdiction over
the Accused Eichmann under the rule of international law.

I. General remarks.

The examinations in this chapter shall be opened by quoting
a thesis put forward quite recently by Moshe Pearlman:

     "On jurisdictional competence, let me dispose of a
     popular misconception. There is no principle of
     international law governing this point. There is no
     doctrine which lays down the conditions under which the
     court of any nation may accept criminal cases for
     trial. The court of law of each country has the right
     and power to decide on the problem of
     jurisdiction."[20]

Pearlman does not even attempt to prove this allegation of
his which touches a most sensitive nerve in the proceedings
against Eichmann. Certainly the question of jurisdiction
would not have become the subject matter of a discussion
which has reached world-wide dimensions, as they may be
called without exaggeration, if the thesis of the complete
sovereignty of a state in the matter of criminal
jurisdiction had been an unchallenged doctrine in
international law.

In support of his thesis, Pearlman could even have relied
upon German writers.

The view that municipal law is at liberty to determine the
scope of its application as to the subject matter and the
persons concerned, without being restricted by rules of
international law, had been argued by Rohland[21] and
Binding[22] and adopted,later on, also by Franz von
Liszt.[23] Thus, e.g., Binding states categorically: "Every
sovereign state is unfettered in determining the scope of
its criminal law."[24]  However, it is already subject to
doubt whether this view reflects the international law in
force at that time or whether it is not to be considered
rather as the expression of exaggerated ideas of the nation-
state grown from the roots of the doctrine of sovereignty in
its extreme form.

As to international law in force at present, at any rate, it
can be stated with certainty that, in the question of the
scope of application of penal law and of national criminal
jurisdiction, the competence to determine competence is not
without limits and restrictions.

One of the restrictions - which deserves to be mentioned
only briefly, as the question involved does not arise in the
present proceedings - is completely unchallenged: No state
is entitled to exercise jurisdiction within the territory of
another state.[25].  This restriction has also been stressed
most lucidly by the Permanent Court of International Justice
in its decision in the Lotus case.

     "The first and foremost restriction imposed by
     international law upon a State is that - failing the
     existence of a permissive rule to the contrary - it may
     not exercise its power in any form in the territory of
     another State."[26]

However, beyond these - obvious - limits, there are further
restrictions of national jurisdiction.  The decision of the
Permanent Court of International Justice in the Lotus
case[27] recognizes already the restriction of national
jurisdiction "in certain cases by prohibitive rules." The
existence of such limitations is stressed even more
vigorously in the dissenting opinion of Justice Moore in
that decision.[28]
Recent works on international law also recognize the
existence of such limitations of national jurisdiction in
criminal matters which go beyond the limits described above
and which derive from the principle of sovereignty. For
instance Guggenheim, a Swiss authority on international law,
states as follows: "However, the claim of the state for
jurisdiction in criminal matters is by no means without any
limits."[29] In his opinion, this principle applies in
particular where a state claims jurisdiction over an alien
in respect of offences committed abroad. The same view is
held, e.g., by the Austrian Professor of International Law
Verdross,[30] and by Oppenheim.[31] In addition, the
existence of boundaries to municipal criminal jurisdiction
is at the basis of comments made by Quincy Wright,[32]
Travers,[33] and - amongst the relevant German writers -
Jescheck[34] and Hellmuth Mayer.[35]

As an extreme case, the well-known "Cutting Case" deserves
to be mentioned[36] - a dispute between the United States
and Mexico, where the United States most forcefully
challenged Mexico's right to try in a Mexican criminal court
an American citizen resident in Mexico for having committed
slander of a Mexican in Texas and to try him according to
Mexican criminal law then in force.

The nature of these restrictions in detail will be discussed
only at a later stage. However, it results already from the
examinations carried out so far that Pearlman's thesis -
quoted at the outset - of the absolute absence of any limits
to the power of a state to determine itself the scope of its
own jurisdiction, is untenable from the point of view of
international law.

II. The doctrine of "Acts of State."

1. A further restriction of any national jurisdiction
consists in the principle of international law, that no
state has jurisdiction over another state. This principle
has been known for ages as the maxim par in parem non habet
imperium (vel jurisdictionem);[37] it is based upon the
mutual independence of sovereign states and the fact
resulting therefrom, namely that no state in its capacity as
a subject of international law can be subject to the laws of
another state.[38]  However, the meaning of par in parem non
habet imperium must not be whittled down and misunderstood
so that only the grant of personal immunity to the highest
representatives of a foreign state will result therefrom.
For this is only a logical ancillary result of the main and
far more important effect of the said principle, the
principle par in parem... based upon the equality of
sovereign states means, in the first place, that acts
carried out by a state in the exercise of its sovereign
powers are exempted from the jurisdiction of other states by
virtue of their very nature.  The principle of international
law that foreign states are exempted from municipal
jurisdiction signifies therefore in the first place the
grant of material functional immunity.  The immunity of the
highest representatives of a foreign state from prosecution
in a municipal court (and from other forms of exercise of
sovereign power) that is to say the grant of immunity
ratione personae - is only the consequence of this original
original immunity ratione materiae, a consequence - it is
true, resulting necessarily from the rules of logic and also
required practically, in order to guarantee the immunity
ratione materiae.

This relationship between immunity ratione personae and
immunity ratione materiae is most important; it has not
always been stressed clearly enough, when particular
questions of international law have been discussed. The
disregard of this derivative character of personal immunity
and the isolated examination of the mere personal aspect of
the principle of immunity is also probably the cause for the
opinions voiced sometimes that the principle of the
exemption of a state from the jurisdiction of other states
does not constitute a genuine legal rule, but rather a rule
of international courtesy, a conventional rule. Of course,
it cannot be disputed that refraining from the prosecution
of foreign representatives of a state in a municipal court
is also in conformity with the rules of international
courtesy and that, historically, also these rules of
international courtesy under which the prosecution of an
organ of a foreign state in a municipal court is deemed to
be a violation  of conventional rules, are partly at the
origin of the principle of personal immunity. However, this
is not the legal justification of the principle of personal
immunity. Therefore, the view prevailing today in judicial
decisions as well as in learned opinion is that the duty to
grant immunity constitutes a genuine duty in law and that
therefore the principle of the exemption of the state from
the jurisdiction of other states is a legal principle of
international law and not only a rule of international
courtesy.[39]

2. The upshot of the so-called "Act of State Doctrine" which
will be examined hereinafter in detail, is not to widen the
scope of the principle of immunity (ratione materiae and
ratione personae) but rather to give only a legal shape to
the principle par in parem non habet imperium.  Kelsen, a
scholar of international law, respected all over the world,
has recently given this doctrine its most lucid expression.
In this context, a personal remark has to be added
immediately namely, that Kelsen, formerly a professor
teaching at the University of Vienna, had suffered
personally from National Socialist persecution and had been
compelled to emigrate to the United States. Therefore it
would only be human and absolutely understandable, if, owing
to the effect of the "Acts-of-State-Doctrine" (hereafter
called "A.o.S.D.") turning out in favour of the main German
war criminals - which will yet have to be explained in
detail - Kelsen would have tried to reject or to weaken the
validity of this doctrine in international law. It bears
witness to the human integrity and the juristic impartiality
of this scholar that, being under the influence of obvious
and only too understandable resentments, he has not
succumbed to this temptation, but has affirmed time and
again the validity of the A.o.S.D. with forceful
determination.

He did so, probably, at a time when the plan to punish the
National-Socialist war criminals after the War was only at
the stage of general discussion, in 1943, in an article on

"Collective and Individual Responsibility in International
Law with Particular Regard to War Criminals.[40]  He voiced
his opinion again in 1944 - when the plans of the Allied
Powers began to materialize - in his book Peace Through
Law.[41]  Even after the Nuremberg Trials of war criminals
and contrary to the judgments delivered in them, he has
upheld the A.o.S.D. as a valid rule of international law in
his book Principles of International Law, published in
1952.[42]

(a) The meaning of the A.o.S.D.:

The meaning of the A.o.S.D. is as follows:

No individual is liable to punishment by a foreign tribunal,
for an act committed by him in his capacity as an organ of
the State.[43]  The punishment of an organ would constitute
a violation of the principle of general international law,
namely that no state has jurisdiction over another state;
for by punishing the organ, jurisdiction is exercised,
indirectly, in respect of the foreign sovereign Act of
State.[44]  This principle applies also to sovereign acts of
a foreign organ of the state which are contrary to
international law.[45]

According to Kelsen's definition, "Acts of State," in this
context have the following meaning:

     "Acts of State, that is, according to general
     international law, acts of the government, or performed
     at the government's command, or with its
     authorization."[46]

In this respect, no distinction is made between the Head of
State or other organs of the state.[47]

However, the A.o.S.D. cannot be misconstrued, by any means,
so as to exclude any reaction of the injured state which is
contrary to international law.

The A.o.S.D. denies only the existence of individual
responsibility and of criminal liability of the official who
committed the act which is contrary to international law.
On the other hand, the doctrine permits expressly to inflict
upon the State sanctions stemming from the collective
responsibility of the State for the act of one of its organs
which has been committed in violation of international law.

This legal consequence is defined by Kelsen as follows:

     "The legal meaning of the statement that an act is an
     Act of State, is that this act is to be imputed to the
     State, not to the individual who has performed the
     act."[48]
     
     "According to general international law, a person who,
     in the service of a State, has violated a rule of
     international law, is not responsible."[49]

     "The collective responsibility of a State for its own
     acts excludes, according to general international law,
     the individual responsibility of the person, who is a
     member of the government, at the command or with the
     authorization of the government, has performed the
     act."[50]

Individual responsibility and criminal liability for an Act
of State presuppose the existence of a treaty with the home-
state of the perpetrator. This view is held most vigorously
by Kelsen who argues51 that the punishment of individuals
for acts performed by them as "Acts of State," by a
municipal court of another state or by an international
tribunal presupposes the existence of a treaty with the home-
state of the perpetrator. Jurisdiction would be "conferred"
only by virtue of such a treaty. The exercise of
jurisdiction without such a consent of the home-state -
whether by a municipal court or by an international tribunal
- would constitute a violation of international law.[52]"

The A.o.S.D., as defined by Kelsen, cannot be attached by
arguing that the doctrine is no longer in line with the
present state of international law, by reason of its
denying the capacity of the individual as a subject of
international law and excluding, as a rule, individual
responsibility under criminal international law.  Kelsen
starts his examination rather on the assumption that
international law as at present in force most definitely
recognizes individual responsibility under international
law.[53]  He mentions, as examples, the criminal liability
of the pirate, based upon international law,[54] and
furthermore, the "illegitimate warfare" - warfare by private
persons. "Consequently, one can say that international law
imposes upon individuals the obligation to abstain from acts
injurious to other States, and that international law in
these cases[55] establishes individual responsibility."[56]

Home ·  Site Map ·  What's New? ·  Search Nizkor