The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of Adolf Eichmann
Defence Submission 1
(Part 4 of 8)

Adolf Eichmann, Eichmann trial, holocaust, Jewish holocaust
The sentence which follows this reference constitutes a remarkable restriction of the deviation from the A.o.S.D. which was considered as permissible by the International Military Tribunal:
"He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state, if the state in authorizing action moves outside its competence under international law."
It is true that only in its wording the International Military Tribunal joined the trend of Verdross, Lauterpacht and Morgan (described above). For it refrained from applying the A.o.S.D. not only in cases where the aforesaid authors admit an exception from the rule of immunity under the law of war in respect of war crimes; rather it has to be stated that the International Military Tribunal, notwithstanding this apparently restrictive wording, generally brushes aside the A.o.S.D. In the trials of war criminals in the American military tribunals, the principle of equality of sovereign states and of the exemption of jurisdiction resulting therefrom was disregarded still more openly and blatantly.[90]

At this stage, let it suffice to state (without as yet giving reasons) that neither the Charter of the International Military Tribunal of 8 August 1945 nor the Nuremberg judgment itself were in conformity with international law in force in 1945 (and, above all, from 1933 to 1945). Nor were either the Charter or the judgment capable of creating new rules of international law. This view will be substantiated and supported by authorities later on in detail. However one cannot refrain from remarking that the verdict, in the sentences quoted above, is characterized by particular inconsistency and polemic language ("...shelter themselves behind their official position...").

In this context, it is more illuminating and important that the purposes of, and the justification for, disregarding the principle of immunity by the Charter of London and the Nuremberg verdict are in conformity with the view held by the American professor Sheldon Glueck and have also to be traced back to these views. For the better understanding of these connections, it has to be mentioned that Glueck in 1944 had published a book called "War Criminals: Their Prosecution and Punishment." By reason of this publication, Justice Robert H. Jackson, the American chief delegate at the London negotiations in 1944 and later on Chief Prosecutor of the USA in the International Military Tribunal in Nuremberg, called upon him to be his advisor. Jackson himself has reported that he has frequently followed Glueck's advice.[91]

Glueck attacked the A.o.S.D. with particular virulence. The vehemence of this attack will not come as a surprise to those who will remember that precisely - and from the beginning - American doctrine and practice of international law had upheld the principle of immunity with particular intensity and uncompromisingly and had defended this view, as already mentioned above, even after Word War I in respect of defeated Germany, most definitely against contrary opinions. In view of the deep roots of the principle of immunity in American legal thinking and tradition, it was natural that only a forceful and total attack on the principle of immunity had some chance to uproot the A.o.S.D. in respect of German war criminals.

Glueck accuses the Acts-of-State-Doctrine of

"artificiality, legalistic nihilism and inapplicability."[92]
In his opinion, the legal situation is as follows:
"The theory that individuals cannot lawfully be punished for crimes which their own government designates acts of state is therefore subject to the reasonable and necessary qualification that individuals carrying out the orders of their government for clear violation of the laws and customs of warfare or of the principles of civilized criminal law generally observed by the members of the Family of Nations are triable and punishable by an injured State or the Community of States acting in the interest of the vindication of international law."[93]
Glueck's reproach of "artificiality" in respect of the A.o.S.D. has been adopted, e.g., by the verdict of the International Military Tribunal which states as follows:
"Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced."[94]
One cannot refrain from stating that this is already a rather commonplace statement to which no value in the cognitive process can be attributed and which is not capable even of casting doubts on the validity of the principle of immunity. If this principle of international law could be carried ad absurdum by such a simple device, such a brilliant and perceptive jurist as Kelsen has been, would hardly ever seriously have supported it and come to its defence. One cannot simply brush aside the Acts-of- State_Doctrine as an artificial fiction - this and nothing else is what the verdict of the International Military Tribunal purports to do - because the legal point in relation to this doctrine is to be found in the idea of the "organ of the state" - that is to say: an abstract entity, although in fact the acts of "persons" are dealt with.

It appears that Kelsen had foreseen this objection and the argumentation in the Nuremberg verdict, for already when expounding the doctrine in his book Peace Through Law which had been published in 1944, he used the following wording:

"If an act performed by an individual - and all acts are performed by individuals - must be imputed to the State..."[95]

Kelsen demonstrated still more precisely in 1952 - that is to say, after end of the Nuremberg Trials and in reaction to the views held there on this question - that this "refutation" of the A.o.S.D. is untenable in law:

"Since a state manifests its legal existence only through acts performed by human beings in their capacity as organs of the state, that is to say, through acts of state, the principle that no state has jurisdiction over another state must be interpreted to mean that a state must not exercise jurisdiction through its own courts over acts of another state unless the other state consents."[96]
He who discards the fact that an individual has acted in his capacity as organ of the state, as artificial fiction, claims actually nothing else than that the legal institution called "organ of the state" is generally superfluous and meaningless from the legal point of view. He who holds the view that the abstract being called "organ of the state" has nothing to do with reality - in which the only acting persons are individuals - and is therefore also meaningless from the legal point of view, has to deny the existence of any value to the idea of the State as a legal abstract institution, if his idea is developed logically; for the State is precisely the prototype of an "abstract being." Jahrreiss has therefore emphasized quite properly that the punishment of individuals for acts which constitute acts of state means "to look upon the state as one would look upon a private individual, indeed more than that: to destroy the idea of the state."[97], [98]

The recent practice of international law is therefore far from discarding the A.o.S.D. as obsolete. In this context there is hardly a more actual and illuminating example than the attitude of the United Nations and Argentina in their dealing with Eichmann's abduction.

Israeli organs of security, that means organs of the State of Israel, had arrested Eichmann and abducted him from Argentina. This was done at the command of the State or at least with the approval of the Government. In the first statement of the Israeli Prime Minister in the Knesset on 23 May 1960, "Israeli organs of security," that means organs of the State, were therefore still mentioned.[99]

Thereupon Argentina protested against the violation of its sovereignty. Israel's reply to this protest was based upon the A.o.S.D. (although not expressis verbis); in all further communications made by Israel, only "Israeli volunteers" are mentioned. The purpose of making, by this device, Eichmann's abduction a "private matter" was to rebut the assertion of violation of sovereignty. For if Israeli volunteers had carried out Eichmann's abduction, this action would, it is true, still have amounted to a violation of Argentinian law, but not to a violation of international law by Israel, as being a violation of sovereignty. For the condition of the existence of a violation of international law imputed to the State of Israel is that the act of violation had been committed by organs of the State and therefore as acts of a foreign State.

Only the A.o.S.D. justifies at all the Argentinian protest and explains the efforts made by Israel to divest Eichmann's abduction of its official character. And only the A.o.S.D. justifies the resolution of the Security Council of the United Nations dated 23 June 1960[100] by which the following statements were made:

"The Security Council,

"Having examined the complaint that the transfer of Adolf Eichmann to the territory of Israel constitutes a violation of the sovereignty of the Argentinian Republic,

1. Declares that acts such as under consideration which affect the sovereignty 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 in accordance with the Charter of the United Nations and the rules of International Law."

For the Security Council could define Eichmann's abduction as a violation of the sovereignty of Argentina and impute it to the State of Israel as such only for the reason that it took into consideration that the Israeli abductors had acted in their capacity as organs of the State and therefore performed an "Act of State" for which the perpetrators are not personally responsible under international law, but which is imputed rather to the home State of the perpetrators which had authorized the act. The request of the Security Council for appropriate reparation addressed to the Israeli Government is understandable only on that ground.

4. The application of the "Acts-of-State-Doctrine" to the Eichmann case.

(a) The crimes imputed to Eichmann were committed by the Accused without exception (except the membership in an enemy organization) as "Acts of State." This cannot be expounded here in detail, but will have to be explained in detail during the trial. In this context it is only to be emphasized that the "Notice of Charge", as well as the Information itself again and again state expressly Eichmann's official function as being the basis of the offence imputed to him. Be it sufficient to quote, as an example, the corresponding part of the "Notice of Charge" in the first count:

"The Accused committed these acts whilst functioning as head of the Department for Jewish Affairs of the Gestapo in Berlin, and, in 1944, also as head of the Eichmann Special Operations Unit (Sondereinsatzkommando Eichmann) in Budapest."
(b) If the wording of the A.o.S.D. adopted by Kelsen, Oppenheim, Pal, Jahrreiss and Jescheck will serve as point of departure for the examination of the question, no Israeli tribunal has jurisdiction over the Accused. The exceptions from the A.o.S.D. considered as permitted by Kelsen (espionage and treason in times of war) do not apply in Eichmann's case.

But even if the "restrictive theory of immunity" as advanced by Lauterpacht, Morgan, Schwarzenberger and Verdross is followed, the State of Israel is not entitled to claim criminal jurisdiction over the Accused Eichmann. The exception permitted according to this doctrine (which goes further than the deviations mentioned above) does not apply in Eichmann's case: for a state of war does not exist - and has never existed - between the State of Israel and Germany, and the State of Israel keeps him in its custody not by virtue of a capture made in the course of military operations - and therefore as a prisoner of war - but as a result of his abduction from the territory of a foreign state.

It must therefore be emphasized, as a result of this chapter, that already the "Acts of State Doctrine" excludes the existence of any claim for criminal jurisdiction of the State of Israel over the Accused Eichmann. If nevertheless he would be tried by an Israeli tribunal, this would amount to a violation of international law.

III Territorial principle, active and passive personality principle, protective principle, universality principle - basis and restriction of Israeli jurisdiction.

Although it appears that already according to the A.o.S.D. Eichmann's trial in Israel is not permitted by international law, it will be explained hereinafter that in addition hereto there are further legal reasons why an Israeli tribunal has no jurisdiction over the Accused.

There are only five principles of international law which would serve to support Israel's claim to try and punish the Accused Eichmann: the territorial principle, the active and passive personality principle, the protective principle and the universality principle.

1. The territorial principle

The meaning of the territorial principle is, in the first place, that a State cannot perform acts of jurisdiction but within the area of its own territory. However, it means furthermore that a State has jurisdiction over any person found within the area of its territory in respect of offences committed within its territory.

The question whether, on the strength of the territorial principle, Israel is entitled to claim jurisdiction over the Accused, can be answered easily and promptly: the Information imputes to the Accused only the commission of acts which he did not commit within the territory of Israel - this is already out of question because the State was established only on 14 May 1948 - and also not - and this ought to be in addition thereto - within the former Mandated territory of Palestine. Israel cannot therefore claim to exercise jurisdiction over the Accused Eichmann on the strength of the territorial principle as a principle of international law.

Notwithstanding this unequivocal result, it is appropriate to add some basic comments on the territorial principle, in order to underline quite distinctly its basic character and its precedence before the four other principles which have been mentioned.

The territorial principle has also been embodied, by express provisions, in the legal systems of nearly all civilized nations.[101]

(a) In the first place, the territorial principle enjoys such a precedence in the legislation, the doctrines and practice of international law because it is in conformity with the principle of the sovereignty of States and gives effect to the mutual respect of territorial sovereignty[102] in the administration of justice. Salmond[103] has laid particular emphasis upon the connection of the "territoriality of law" and the principle of sovereignty, by finding its basis in the political partition of the world.

(b) In Anglo-American jurisdiction, particular emphasis has always been laid upon the territorial principle. It has not lost this precedence up to this day. In these jurisdictions the basic character of this principle is emphasized time and again by legal authors, e.g. by Salmond[104]:

"The enforcement of law is undoubtedly territorial in the same way as a state is territorial; that is to say, the State power is in time of peace exercised (generally speaking) only within the territories of the state."[105]


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