Archive/File: people/e/eichmann.adolf/transcripts/Appeal/Appeal-Session-07-06 Last-Modified: 1999/06/15 We have already replied to this contention when we dealt with the first two jurisdictional contentions. The reply is that the Appellant is a `fugitive from justice' from the point of view of the law of nations, since the crimes that were attributed to him are of an international character and have been condemned publicly by the civilized world (see Resolution No. 96(1) of the United Nations Assembly of 11.12.46 on `the Crime of Genocide'); therefore, by virtue of the principle of universal jurisdiction, every country has the right to try him. This jurisdiction was automatically vested in the State of Israel on its establishment in 1948 as a sovereign state. Therefore, in bringing the Appellant to trial, it functioned as an organ of international law and acted to enforce the provisions thereof through its own laws. Consequently, it is immaterial that the crimes in question were committed at a time when the State of Israel did not exist, and outside its territory. Indeed, Counsel for the Appellant has on this point confused the question of the substantive penal jurisdiction of the State of Israel with the question whether his client enjoys immunity from the exercise of that jurisdiction against him by reason of the circumstances of his abduction. These two questions are entirely separate from one another. As has been indicated, the moment it is admitted that the State of Israel possesses criminal jurisdiction both according to local law and according to the law of nations, it must also be conceded that the Court is not bound to investigate the manner and legality of the Appellant's detention. This indeed is the conclusion to be drawn from the judgments upon which the District Court rightly relied. (b) Counsel for the Appellant also argued that in the Resolution of the United Nations Security Council dated 23.3.60, the Government of Israel was requested to make appropriate reparation to Argentina for the above-mentioned incident; hence the matter involves a violation of international law, and in these circumstances it cannot be accepted that the Court should refuse to examine the factual question of whether the Government of Israel was a party to the abduction of the Appellant. We cannot accept this contention either. The text of the resolution appears in extenso in paragraph 40 of the Judgment, and from the operative part thereof - which refers to the question of reparation - it emerges clearly that all that the Security Council sought to do was to cause a settlement of the dispute which had arisen between the two countries in connection with Argentina's complaint of the violation of her sovereignty. As the Court has shown, insofar as there was any such violation by the Government of Israel, the Appellant cannot benefit by it, and therefore what was said in the resolution regarding the settlement of the dispute between the two countries cannot avail the Appellant or accord him any rights, especially as the dispute has meanwhile been settled. Moreover, in the preamble to the resolution it is stated that: "Mindful of the universal condemnation of the persecution of the Jews under the Nazis and the concern of the 0people in all countries that Eichmann should be brought to appropriate justice for the crimes of which he is accused. "Noting at the same time that this resolution should in no way be interpreted as condoning the odious crimes of which he is accused." These two passages give expression - and precisely because the whole world condemns the persecution of Jews by the Nazis - to the international interest involved in the prosecution of the Appellant for the crimes of which he was accused; and their language, including the expression "to appropriate justice," cannot be interpreted otherwise than in the sense that the State of Israel, too, is among the countries which must be taken into account for this purpose. After all, the Security Council well knew that Israel was holding the Appellant in custody in order to place him on trial here, but nevertheless did not give the slightest hint of an objection to this course. (c) Another submission of Counsel for the Appellant was that the Court was not justified in inferring from the joint communique of the Governments of Argentina and Israel, dated 3.8.60, the fact that the former has waived her claims, but only that this issue has been terminated for the purpose of preventing `diplomatic friction' because of the incident. Counsel for the Appellant stated that he read in the press of a new approach of Argentina to Israel on the same issue, and therefore asked to call the Ministers of Justice of the two countries as witnesses to be interrogated on this fact. This submission is without substance. The language of the said communique is clear and unequivocal, and the Court was right in the construction which it put upon it. Therefore, there is no point in acceding to Counsel's request. (d) The last point raised by Counsel for the Appellant was that as an international law imposes obligations on the individual, so also does it grant him rights, and here the Appellant's right to freedom and personal security, a right vested in him by international law, has been violated. In support of this contention, he based himself on Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which was signed in Rome on 4.11.50. The short reply of the Attorney General was that the State of Israel is not a party to this Convention, and with this reply we agree. From the point of view of customary international law, it has already been explained that the abduction of the Appellant is no ground for denying to the Court its competence to try him once he is within the area of its jurisdiction. 14. The next contention to be considered is that the crimes of which the Appellant was convicted were at the time in the nature of Acts of State and that, therefore, he is absolved from criminal responsibility for those crimes. The theory of `Act of State' means that the act performed by a person as an organ of the state - whether he was the head of the state or a responsible official acting on the government's orders - must be seen as an act of the state only. It follows that the state alone bears responsibility therefor, and it also follows that another state has no right to punish the person who committed the act, save with the consent of the state whose mission he carried out. Were it not so, the first state would be interfering in the internal affairs of the second, which is contrary to the conception of the equality of states based on their sovereignty (see Kelsen, Peace through Law, p. 81 ff). The contention of Counsel for the Appellant is, therefore, that the acts done by his client towards the implementation of the Final Solution had their origin in Hitler's decision to carry out that plan, and consequently these acts were purely `Acts of State,' responsibility for which does not rest on the Appellant. We utterly reject this contention, as did the District Court (paragraph 28 of the Judgment). Our reasons are as follows: (a) The concept of `sovereignty,' from which the doctrine of `Act of State' derives, is not considered in our time to be an absolute concept, as was made clear by Kunz in his article "The Nottebohm Judgment" (A.J.I.L., vol. 54, p. 545): "Any a priori or unlimited political concept of sovereignty must, with inescapable logic, lead to the non-existence of international law as law. Sovereignty is, therefore, essentially a relative notion." This also applies to the `Act of State' doctrine. Even Chief Justice Marshall, who relied on it in Schooner Exchange v. McFaddon (3 L. ed. 287), was particularly careful to base it on the sole foundation that the state within whose territory an illegal act was committed on behalf of another state had expressly or impliedly consented to waive its sovereign territorial right to punish therefor. What is more, he added the reservation that where implied consent is involved "its extent must be regulated by the nature of the case, and the views under which the parties requiring and conceding it must be supposed to act" (p. 296). Glueck, commenting on this passage, said (Harvard Law Review, vol. 59, p. 426): "As Marshall implied, even in an age when the doctrine of sovereignty had a strong hold, the non-liability of agents of a state for `Acts of State' must rationally be based on an assumption that no member of the Family of Nations will order its agents to commit flagrant violations of international and criminal law." As to the Opinion given in 1841 by the American Secretary of State, Webster, in re McLeod, which is also based on the said doctrine, and on which Kelsen relied (ibid., p. 83), it was pointed out by Quincy Wright (A.J.I.L., vol. 41, p. 71) that even then it had not gained general recognition: "This position was disputed by many at the time on the ground that the government's authority could not confer immunity upon its agents for acts beyond its powers under international law." (b) In any event, there is no basis for the doctrine when the matter pertains to an act prohibited by the law of nations, especially when they are international crimes in the class of `Crimes against Humanity' (in the wide sense). Of such heinous acts it must be said that they are completely outside the `sovereign' jurisdiction of the state that ordered or ratified their commission, and therefore those who participated in such acts must personally account for them and cannot seek shelter behind the official character of their task or mission, or behind the `Laws' of the state by virtue of which they purported to act. Their case may be compared with that of a person who, having committed an offence in the interests of a corporation which he represents, is not permitted to hide behind the collective responsibility of the corporation therefor. In other words, international law postulates that it is impossible for a state to sanction an act that violates its severe prohibitions, and from this follows the idea which forms the core of the concept `international crime': that a person who was a party to such a crime must bear individual responsibility for his conduct. Otherwise, the penal provisions of international law would be frustrated: "...in modern times a State is - ex hypothesi - incapable of ordering or ratifying acts which are not only criminal according to generally accepted principles of domestic penal law but also contrary to that international law to which all states are perforce subject. Its agents, in performing such acts, are therefore acting outside their legitimate scope, and must, in consequence, be held personally liable for their wrongful conduct ..." (Glueck, op. cit., pp. 427-428). This was written before the Nuremberg Tribunal delivered its judgment, and indeed already before World War II the defence of `Act of State" was not regarded as an adequate defence to the charge of an offence against the `laws of war' (`conventional' war crime). Lauterpacht saw in this a complete answer to the doctrine in question: "...it is universally agreed that in any case persons who have ordered the commission of war crimes are liable to punishment for the violations of rules of warfare. It is clear that in this vital respect the apparently established doctrine breaks down altogether. The law declines, in this matter, to accept the artificial distinction between the state and those acting on its behalf. The fact that the offender acts on behalf of the state is irrelevant. He is bound personally by rules of international law, whether he is acting in his personal capacity, in order to satisfy private greed or lust, or as an organ of the state." (63 Law Quarterly Review (1947), pp. 442-443). In support of the same opinion, Glueck (ibid., p. 428) cites the case of the German general, Stenger, who was sentenced in 1920 by the Supreme Court in Leipzig for the killing of wounded French soldiers during World War I. In its judgment the German court said: "The lawfulness or unlawfulness of an act of war is determined by the rules of international law. The killing of enemies in war is in accordance with the will of the state which wages the war and whose laws are decisive for the question of legality or illegality only to the extent that it is done under the conditions and within the limits which international law established." (c) Whatever may be the value of the above doctrine in other cases, the principle laid down in Article 7 of the Charter of the International Military Tribunal at Nuremberg, to which the Tribunal (basing itself also on the case of ex parte Quirin) adhered, is that that doctrine cannot afford a defence in respect of international crimes, particularly those defined in the Charter. To quote the court on this issue: "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. Article 7 of the Charter expressly declares: `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.' 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. 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" (Trial of Major War Criminals (Nuremberg, 1947, vol. 1., p. 223)). The principle expressed in these views, which totally negates the `Act of State' contention, is today one of the `Nuremberg Principles,' which have become part and parcel of the law of nations, and must be seen as having been rooted in it in the past as well, as was explained in paragraph 11 above (see Article IV of the Genocide Convention; Principle No. III of the Nuremberg Principles, as formulated by the International Commission following upon the United Nations resolution 177(II) - report of the Commission on its proceedings, U.N. Gen. Ass. Off. Recs., 5th Sess. Suppl. No. 12A 1316 (1950) p. 12). The result is that this contention, insofar as it refers to the crimes in question, finds no support in international law, and can by no means avail the Appellant. (d) Counsel for the Appellant proceeded to contend that the acts attributed to his client were committed within the framework of the anti-Jewish decrees of the Nazi regime and the personal orders of Hitler himself, decrees and orders which, for all the injustice they entailed, had at the time the force of law. To this contention there are two replies. First, if anyone wishes to entrench himself behind the formal concept of a Nazi `Law,' it must be said that the Final Solution was at no time embodied in a `Law' - not, indeed, because of any deference on the part of the Nazis to the law, as if they had no wish to break it, but because they were most anxious to hide their deeds in darkness and not expose them to the civilized world (a fact which also points to their having been aware of the criminal nature of their deeds). It would appear, moreover, that the dominant tendency in the jurisprudence of Western Germany today is to invalidate ab initio the discriminatory and destructive decrees of the Nazi regime, to deny them any legal validity from the day they were issued or enforced, and to apply this approach also to the `norms' which were of Hitler's own creation. The view by which West German courts are guided is that expressed in the formula stated by Radbruch (called by the Attorney General "the greatest positivist in German thought") in his post-war writings (Rechtsphilosophie (1950) p. 353): "Preference should be given to the rule of positive law, supported as it is by due enactment and state power, even when the rule is unjust and contrary to the general welfare, unless the violation of justice reaches so intolerable a degree that the rule becomes in effect `lawless law' and must therefore yield to justice." (The translation is by Professor Lon Fuller of Harvard University; see also the article by Silving, p. 344, and the extracts from German judgments therein cited; see also the review of these judgments in Legal Theory by Friedman, 4th ed., pp. 310, 311.) It follows that, according to the above jurisprudence, not only is the present contention of Counsel for the Appellant completely untenable also in German law, but that also according to the theory of Kelsen (ibid., note on p. 82) the acts in question cannot be treated as `Acts of State.' However, we need not resort to modern German judgments as support for rejecting this contention. The second and principal reason for our doing so is that the discriminatory and plunderous decrees of that wicked state, and the murderous edicts of the autocrat who directed its affairs, are not laws in the eyes of international law and can by no means give these terrible crimes the imprimatur of validity, or absolve those who participated in them from the personal responsibility they bear: "Hitler's decrees were a protection neither to the Fuehrer himself nor to his subordinates, if in violation of the law of the community of nations" (U.S. v. Altstoetter, L.R.T.W.C., vol. 3, p. 1011). To conclude this subject, we can do no better than repeat the words of the District Court: "The very contention that the systematic extermination of masses of helpless human beings by a government or regime could constitute an `Act of State,' appears to be an insult to reason and a mockery of law and justice." The contention of `Act of State' is rejected.
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