The Trial of Adolf Eichmann
Kelsen's description of the extent and limits of the
A.o.S.D. has been supported without reserve, e.g. by Judge
R.P.Pal, the Indian judge of the International Military
Tribunal for the Far East[58], and by Jescheck;[59] complete
agreement has been voiced also by the German scholar of
international law, Professor Jahrreiss.[60]
(b) The A.o.S.D. in its practical application by the States:
In the practice of the United States the A.o.S.D. has always
been respected meticulously. In this respect the decision of
the Supreme Court of the U.S.A. dated 1812 in the case of
Schooner Exchange vs. McFaddon[61] has to be mentioned in
the first place. The facts in this case were the following:
In this context, Jescheck emphasizes most properly that "the
Americans, in this instance, were not activated by the idea
of immunity or extraterritoriality of the Head of State, but
by the general principle - in international law - that Acts
of State are exempt from foreign jurisdiction, and,
therefore, by the idea of immunity ratione materiae as a
direct consequence of the principle "par in parem non habet
imperium,"[65] the importance of which has already been
mentioned above.
A most striking example of the application of the A.o.S.D.in
the practice of international law in the United States is
presented by the case of the "Caroline" (case of
McLeod)[66]:
As an authority from recent times for the validity in
international law of the doctrine of absolute immunity
granted to foreign Acts of State, the Convention on the
Privileges and Immunities of the United Nations, dated 13
February 1946, ought to be mentioned. Art. V,* {*The article
in question is Art. IV and not Art. V referred to in the
German original (Translator).} section 12, of this
Convention provides expressly that representatives of the
member states to the principle and subsidiary organs of the
UN shall enjoy immunity from legal process "in respect of
words spoken or written and all acts done by them in
discharging their duties" even after the termination of
their mission. A similar provision appears in the Convention
of Ottawa providing for the organization of NATO, dated 20
September 1951.[72]
3. The A.o.S.D. - restrictions of the scope of application
and its rejection.
(a) Does the doctrine apply also in times of war?
Kelsen holds the view that the A.o.S.D. applies without any
restrictions - with the exception of the cases mentioned
above of espionage and treason in times of war. Above all,
even the outbreak of war does not invalidate, in his
opinion, the force of the rule of immunity:
In this context, Kelsen points out that the same view has
been held without any modification in Oppenheim's
International Law from its first to its fifth editions:
Lauterpacht, too, had originally been a supporter of this
opinion, for he adopted, without modification, Oppenheim's
view - which has just been quoted - in the 5th edition of
International Law of which he is the author. Only in view of
the planned trials of war crimes committed by German war
criminals has Lauterpacht abandoned - in 1944, in the 6th
edition of International Law - Oppenheim's and also his own
view, namely that the A.o.S.D. applies also to war crimes,
and reformulated paragraph 253 of the book. Kelsen most
properly criticizes and rejects Lauterpacht's reformulating
of paragraph 253 of International Law as an inadmissible
confusion between the A.o.S.D. and the "plea of superior
orders"[77] - and there are further objections to this volte
face of Lauterpacht's which will be discussed in detail
below. These two legal doctrines have to be sharply
distinguished.
It is true that war crimes committed as Acts of State would
constitute acts in violation of international law, although
they would not constitute punishable acts of the individual
perpetrators. According to the general rule, in these cases
only such sanctions could be imposed which can be justified
by the collective responsibility of the State for wrongs
committed by its organs.[78]
Therefore, the general rule that individual punishment could
be imposed without violating the rules of international law,
only "with the consent of the home State of the delinquent,
that is to say, on the basis of an international treaty
concluded with the State for whose acts the individual
perpetrators are to be punished" - should apply also in
respect of war criminals.[79]
However, it has to be admitted that Kelsen's view of the
unrestricted validity of the A.o.S.D. even between
belligerent powers is not uncontested.
Thus, e.g., Morgan[80] recognizes the application of the
A.o.S.D. without restrictions in times of peace; however, he
admits the existence of a restriction of the "immunity of
sovereignty" in times of war, in respect of war crimes.
The same view is held by Verdross and Lauterpacht.
Verdross states in this respect:
"Such an individual responsibility based directly upon
general rules of international law is imposed, however,
only upon war criminals; for the States are entitled,
in international law, ab antiquo, to punish the
prisoners of war of the enemy captured by them, also
for those acts committed by them, prior to their
capture, in violation of the Law of War. The
prosecution of these offences is permitted according to
the customs of war, that is to say directly by virtue
of international law."[82]
On the other hand, by no means would the outbreak of war
lift the immunity - ratione materiae and ratione personae -
of organs of the State, generally and totally, so that any
State, that is to say even a non-belligerent State, would
become entitled to institute prosecutions in respect of war
crimes even though it is not injuriously affected by them.
Schwarzenberger,85 too, agrees to this narrow scope of
application and to these precise conditions required in
order to permit an exemption from the A.o.S.D.
(b) Disapproving opinions.
However, it cannot be gainsaid that the A.o.S.D. has also
met with disapproval in principle. It is true that this is a
trend which has come into existence, as to time and cause,
only in connection with the plan of the Allied Powers to
punish the German war criminals.
In this connection, Art. 7 of the Charter of the
International Military Tribunal, dated 8 August 1945,[86] is
to be mentioned in the first place where the following
provision appears:
The International Military Tribunal rejected, further, the
application of the A.o.S.D. by the following argumentation:
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Defence Submission 1
(Part 3 of 8)
Kelsen admits exceptions from the A.o.S.D. - and thereby
from the requirement of a treaty with the home state of the
perpetrator for giving rise to his individual criminal
liability for Acts of State - in addition to the cases which
have been just mentioned, only in cases of espionage and war
treason. He argues that in these cases only individual
responsibility is incurred, but no collective responsibility
of the home state; therefore punishment of the perpetrator
would be permissible, although, as a rule, the acts in
question had been performed in the name and at the command
of a foreign state.[57]
"An American merchant ship had been captured on the
high seas by a French man-of-war. She had been
converted into a French auxiliary man-of-war and later
on, when she had to call at the harbour of Baltimore
owing to a storm, she had been attached by the District
Court upon the application of her former owner. The
Supreme Court discharged the seizure.[62]
With reference to the decision of the Supreme Court in the
case of Schooner Exchange vs. McFaddon, both American
delegates to the special commission of the Peace Conference
refused to recognize on 29 March 1919, the existence of
criminal responsibility to the victorious powers on the part
of the head of the defeated State.[63] The Americans
asserted that the Head of State, in his capacity as
"sovereign agent of a State" and as "chief executive" was
not subject to any foreign jurisdiction, for "the essence of
sovereignty consists in the fact that it is not responsible
to any foreign sovereignty."[64]
On 29 December 1837 Alexander McLeod, a British
subject, together with other British soldiers, at the
command of the British government, penetrated from
Canadian territory, the territory of the U.S.A. The
soldiers captured there the American ship "Caroline"
which had supplied the rebels in Canada with arms,
without having been prevented from doing so, by the
government of the U.S.A. During the fight an American
citizen was killed. The officer, McLeod, was arrested,
during a business trip in 1840 in the U.S.A. and tried
by a court for murder. At first, he was convicted. As a
result of diplomatic negotiations, the proceedings were
stayed.
In the context of the proceedings here in this Court, an
instruction of the American Secretary of State Webster,
given to the Attorney General on 15 March 1841, is most
noteworthy:
"All that is intended to be said at present is, that
since the attack on the "Caroline" is avowed a national
act, which may justify reprisals, or even general
war...yet that it raises a question between independent
nations; and that individuals connected in it cannot be
arrested and tried before the ordinary tribunals, as
for the violation of municipal law."[67]
The same view is also expressed in the reply of the American
Secretary of State Webster to a British memorandum:
"The Government of the United States entertains no
doubt that, after the avowal of the transaction as a
public transaction authorized and undertaken by the
British authorities, individuals concerned in it ought
not...to be holden personally responsible in the
ordinary tribunals for their participation in it."[68]
Verdross[69] reports that the legal view held in the case of
McLeod "has afterwards been generally accepted." He refers
to the cases of Panther and Mohican which occurred in Brazil
and in which organs of the State not only had acted in
contravention of international law, but had even exceeded
the scope of instructions given to them by their
governments, and both elements not only had not constituted
any obstacle to the A.o.S.D., but had rather been the very
reason for it. As to the practical application of the rule
of international law: "Only the home state of the guilty
organ is answerable for such acts in proceedings under
international law; for the official acts of a State, indeed,
are subject to the rules of international law but not to the
jurisdiction of a foreign State." Verdross[70] refers as
authorities to a great number of decisions given in Anglo-
American as well as continental jurisdictions.[71]
"There is no sufficient reason to assume that the rule
of general customary law under which no State can claim
jurisdiction over the acts of another State is
suspended by the outbreak of war, and consequently that
it is not applicable to the relationship between
belligerents."[73]
Kelsen's statement, namely that in respect of violation of
the rules of warfare committed as "Acts of State" there is
no individual responsibility in international law - is
therefore consistent.[74]
"Violations of the rules regarding warfare are war
crimes only when committed without an order of the
belligerent government concerned. If members of the
armed forces commit violations by order of their
government, they are not war criminals and may not be
punished by the enemy."[75]
This opinion has met with the express approval of the former
professor of London University, H.A. Smith.[76]
"The Law of War provides for a deviation from the
principle of absolute immunity. According to
international law of war, a State is entitled to
persecute organs of a foreign State also for acts
committed in violation of the rules of international
law in the form of Acts of State."[81]
Also according to Lauterpacht, the source of jurisdiction of
a State over war criminals is the Law of War; he uses the
term "this generally acknowledged right of the belligerent
to punish enemies for war crimes."[83]
"The rule as to the jurisdictional immunity of armed
forces does not apply if in time of war a belligerent
captures members of the armed forces of the enemy who
before their capture committed such violations of the
laws and customs of war as are considered to be war
crimes. A belligerent may try such prisoners of war,
and punish them as war criminals."[84]
In the context of the present case, it is important to note,
above all, a common feature of all these opinions which
admit a deviation from the A.o.S.D. in times of war - a
feature which in itself has to be designated as a severe
limitation of this exception: the A.o.S.D. is not suspended
already by the outbreak of war. The suspension of the
doctrines applies rather only between belligerents and also,
in this respect, only to prisoners of war captured during
hostilities.
"The official position of defendants, whether as Heads
of State or responsible officials in Government
departments, shall not be considered as freeing them
from responsibility or mitigating punishment."
Therefore, it is also not surprising that the International
Mililtary Tribunal, too, rejects the applicability of the
A.o.S.D. in its judgment against the major war criminals. It
is, however, noteworthy that in so doing the Tribunal does
not rely solely upon art. 7 of the Charter, but holds the
view that the legal basis for proceeding in this way is to
be found also, outside the provisions of the Charter, in the
rules of international law. The Tribunal bases the principle
of personal responsibility as a valid rule of international
law upon art. 228 of the Treaty of Versailles.
"The provisions of Article 228 of the Treaty of
Versailles already referred to illustrate and enforce
the view of individual responsibility."[87]
In holding this view, however, the Tribunal has overlooked
an important statement which it made only a few sentences
earlier:
"In Article 228 of the Treaty, the German Government
expressly recognizes the right of the Allied Powers `to
bring before military tribunals persons accused of
having committed acts of violation of the laws and
customs of war'."[88]
But this express grant of jurisdiction by the home state of
the Accused was made precisely in compliance with the
A.o.S.D., for precisely this doctrine - and only this
doctrine - requires such a grant, as has been explained in
detail on p.18 {to be changed in page proof, Ed.} above.
However no such grant of jurisdiction by Germany to the
Allied Powers took place after World War II.
"The principle of international law which, under
certain circumstances, protects the representatives of
a state, cannot be applied to acts which are condemned
as criminal by international law. The authors of these
acts cannot shelter themselves behind their official
position in order to be freed from punishment in
appropriate proceedings."
Thereafter reference is made to art. 7 of the Charter:
"On the other hand, the very essence of the Charter is that
individuals have international duties which transcend the
national obligations of obedience imposed by the individual
state."[89]