Defence Submission 01-04, Eichmann Adolf

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

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

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

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

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

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

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

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

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

(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

Last-Modified: 1999/06/09