The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of Adolf Eichmann
Defence Submission 1
(Part 2 of 8)

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]


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