The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of Adolf Eichmann
Defence Submission 1
(Part 3 of 8)

Adolf Eichmann, Eichmann trial, holocaust, Jewish holocaust
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]

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:

"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]

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 the practice of international law in the United States is presented by the case of the "Caroline" (case of McLeod)[66]:

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 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]

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:

"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]

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:

"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]

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:

"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]

"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]

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.

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 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 International Military Tribunal rejected, further, the application of the A.o.S.D. by the following argumentation:

"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]


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