Journal of Criminal Law and CriminologyVolume 55Issue 1 March Article 2

Spring 1964

A Post Mortem of the Eichmann Case--TheLessons for International LawNicholas N. Kittrie

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Recommended CitationNicholas N. Kittrie, A Post Mortem of the Eichmann Case--The Lessons for International Law, 55 J. Crim. L. Criminology & PoliceSci. 16 (1964)

A POST MORTEM OF THE EICHMANN CASE-THE LESSONS FORINTERNATIONAL LAW

NICHOLAS N. KJTTRIE

Mr. Kittrie is engaged in the practice of law in Washington, D. C. He is also Lecturer in Compar-ative Law in the Washington College of Law of American University. Mr. Kittrie served as Counselto the Minority of the Antitrust and Monopoly Subcommittee of the United States Senate JudiciaryCommittee from 1959 to 1962 and was Director of theAmerican Bar Foundation Project on the Rightsof the Mentally Ill from 1956 to 1958. Mr. Kittrie received the LL.B. and M.A. degrees from theUniversity of Kansas in 1951, he was a Raymond Fellow in the University of Chicago Law School dur-ing 1954-1955, and he received the LL.M. degree from Georgetown University in 1963.

"Will the Eichmann case help promote the healthy growth of international law?" Posing this ques-tion as delineating the scope of his investigation of the implications of the Eichnann case, Mr.Kittrie seeks to determine how the concepts of international law have been affected by the capture,the trial, and the punishment of Adolph Eichmann.-EDrroR.

Two seconds before midnight, on May 30, 1962,a few short hours after his petition to the Presidentof Israel for clemency was denied, Adolph Eich-mann was hanged. Within hours, his body havingbeen cremated pursuant to his own request, theashes were taken up into the air by a military air-plane and were spread upon the Mediterranean.Thus more than two years after his clandestinecapture in Argentina and following a four-monthtelevised trial, in which 111 surviving witnessestestified for the prosecution, came an end to theThird Reich's leading expert on the Final Solutionto the Jewish Problem. The story of Eichmann'scapture, Argentina's protest, the debate in theUnited Nations, the announcement of the trial,the terrible drama told in the courtroom, Eich-mann's lean and precise figure sitting in his glasscage scribbling notes to his German counsel, hisdefense, his appeal, and his last plea for mercy,were continuously in the world press and on themovie and television screens, making this case oneof the best recorded in the annals of world law.During this time it was the personal story of Eich-mann and his victims that occupied the limelight.The moral and political implications of the case, theelement of historical justice, the legality of thetrial in light of the violation of Argentina's sover-eignty by Eichmann's captors, Israel's designpublicly to record the full tragic story of her people,the story of the total collapse of law and moralityin the 20th Century in the center of Europe,Western Germany's role as the democratic suc-cessor to Hitler's Nazi empire and the question ofthe responsibility of her people, all these providedthe case with numerous elements of unusual in-terest. Still, to many observers the trial of Eich-

mann probably consisted of merely one ancientquestion: 'Will justice be done? Will the killer bepunished?"

Now that the political and emotional tensionshave subsided and the record of the deeds andpunishment of Adolph Eichmann can be examinedwith a more detached historical sense, a very im-portant question still remains to be answered:"Will the Eichmann case help promote the healthygrowth of international law?" To answer thisquestion one needs to examine in detail both thefactual background and the various concepts ofinternational law which have been affected by thecapture, the trial, and the punishment of AdolphEichmann, the only man to be executed in the 14year history of the State of Israel.

Tnn LEGAI or EimAN's CAPT=

Eichmann was apparently apprehended in Ar-gentina, where he was living under a disguise, byspecial agents of the Israeli authorities. The Israeligovernment subsequently subscribed to conflictingversions as to the official role of the government inthis capture, stating at one time that governmentagents participated in his pursuit and capture fromthe very beginning and stressing later that Eich-mann was captured by "volunteers," members of aprivate group, and was then flown to Israel wherehe was officially surrendered to the authorities.There was no extradition treaty between Argentinaand Israel at the time of the abduction. In theabsence of such treaty the two governments couldhave nevertheless negotiated Eichmann's sur-

I N.Y. Times, May 29, 1960, §1, p. 3, col, 1.

A POST MORTEM OF THE ECHMANN CASE

render to Israel for trial.2 Moreover, as Eichmannhad reputedly entered Argentina under falsecredentials, that country could have expelled himas an illegal alien.3 But whether the government ofArgentina would have been willing to undertakesuch action is highly questionable in light of in-ternal political conditions: the strong influenceexerted by rightist elements, the precarious balanceof political power, and the past experience of pro-viding refuge to Nazi and Fascist functionaries.

Argentina lodged an official complaint with theUnited Nations Security Council stating that theforcible abduction of Adolph Eichmann was aclear violation of international law and an invasionof its sovereignty. However, after Israel made itsapology the matter was declared closed in a jointcommunique issued by the two nations on August3, 1960.4 The failure of the United Nations andArgentina to insist upon Eichmann's return thusseemed technically to cure the illegality of thecapture. As an individual Eichmann had no stand-ing in international law, and whatever rights hepossessed had to be enforced on his behalf by anaggrieved nation. The desire to avoid the embar-rassing situation which the possession of Eich-mann's person would have posed and the reluctanceto awaken past memories kept the governments ofArgentina (within whose boundaries he was found),Austria (of which he was a naturalized citizen),and Germany (whose Third Reich he served) frommaking a claim for or on behalf of Eichmann.Since all concerned nations waived their right toEichmann, Israel appeared free, within the frame-work of its own law, to pursue with regard to hima conduct of its own choice.

2 Although every sovereign country has the power togrant or deny extradition, most countries have executedtreaties which set forth the particular offenses for whichextradition will be granted. See, Comment, 43 MINN.L.R. 587 (1959). For a complete discussion of thesubject see GARCIA-MoRA, INTERNATIONAL LAW ANDAsyLum AS A Hu, ,u RIGHT (1956); Garcia-Mora,The Present Status of Political Offenses in the Law ofExtradition and Asylum, 14 U. P=:. L. R.v. 371 (1953).The view has been expressed that the grant by anycountry of asylum to a person accused of a major crimeof this type and the prevention of his prosecution iscontrary to the nation's obligation under internationallaw. 2 OrmENs & LAUTERPAC T, INTERNATIONALLAw 588, n.4 (7th ed. 1952). In 1864 the United Statessent one Arguelles to Spain without benefit of a treaty,relying on comity and general principles of inter-national law. See 1 MooRE, TREATISE ON EXTRADITIONAND I ERSTATE RENDITION 33-35 (1891).3 Eichmann's basic identification paper was astateless identity card issued by the Vatican in 1947under a false name. See Baade, The Eichmann Trial:Some Legal Aspects, 1961 DuK. I.. 400, 410.

4 N.Y. Times, Aug. 4, 1960, §1, p. 1, col. 5.

It is generally agreed, despite occasionally heardopposition, that "once a prisoner is within thephysical control of a particular court and properlycharged, according to the law of almost every na-tion, he may be tried by that court regardless ofthe manner by which he was brought before it."5

The question of jurisdiction of a national courtfollowing seizure or arrest in violation of inter-national law is one which has continued to botherinternational lawyers despite a long tradition ofjudicial approval of the practice.6 Since the 17thCentury a great number of decisions of the highestEnglish and American courts have held that acourt's jurisdiction to condemn or forfeit a shipbrought within reach of its process is not affectedby the fact that the ship was seized within theterritorial waters of another state and hence inviolation of international law. Likewise, Englishand American prize courts have held that capturesmade in violation of neutral territorial waters willbe restored only upon the demand of the neutralstate. As against an individual enemy or neutralclaimant, such captures are regarded as validYIn a leading English case, Sir W. Scott reiteratedthat it was "a known principle" of his court that"the privilege of territory will not itself enure tothe protection of property, unless the State fromwhich that protection is due, steps forward toassert the right."8 This same philosophy was sub-scribed to by the United States Supreme Court asfar back as 1815.9 In the case of The Richnwnd0

5 Leavy, The Eichmann Trial and the Role of Law,48 A.B.A.J. 820, 822 (1962); Baade, The ElchmannTrial: Some Legal Aspects, 1961 DU=E L.J. 400; Green,The Eichmann Case, 23 MOD. L. REv. 507 (1960).

0 One clear exception is provided by the case of Inre olis, France, Tribunal Correctionnel de' Avesnes,July 22, 1933, Annual Digest 1933-1934 at 191 (1940).In this case a Belgian subject was kidnapped by Frenchofficials on Belgian territory and was taken to France fortrial. The French Tribunal held: "The arrest, effectedby French officers on foreign territory, could have nolegal effect whatsoever and was completely null andvoid. This nullity being of a public nature, the judgemust take judicial notice thereof... all that followedthereon must therefore be annulled." Id. at 191.

The Eliza Ann, 1 Dods 244, 165 Eng. Rep. 1298(1813); The Valeria, 1 A.C. 477 (1921); The Sir WilliamPeel, 72 U.S. (5 Wall.) 517 (1866); The Florida, 101U.S. 37, 42 (1879)."The Purissima Conception, 6 C. Rob. 45, 47, 165

Eng. Rep. 844, 845 (1805).9 It should be emphasized that the Anglo-American

rule differs from that of the leading European countries.GARNER, PR= LAw DuRING T WORLD WAs (1927),reports that the prize tribunals of France, Germany andItaly consider a capture made in violation of neutralterritorial waters as "absolutely illegal irrespective ofwhether... the neutral power intervenes or not."Id. at 227.

10 13 U.S. (9 Cr.) 102 (1815).

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NICHOLAS N. KITTPIE

an American vessel was seized by a United Statesman-of-war in the territorial waters of East Floridathen belonging to Spain, and was forfeited to theUnited States for the violation of the Non-Inter-course Act of 1809. Delivering the opinion of theUnited States Supreme Court, in which thesentence of condemnation was affirmed, ChiefJustice Marshall said:

"The seizure of an American vessel within theterritorial jurisdiction of a foreign power, iscertainly an offence against that power, whichmust be adjusted between the two govern-ments. This court can take no cognizance of it;and the majority of the court is of opinion, thatthe law does not connect that trespass, if it beone, within the subsequent seizure by the civilauthority, under the process of the district court,so as to annul the proceedings of that courtagainst the vessel.""uInterestingly enough the strongest opposition

to this interpretation of international law in ourdomestic law was voiced in the United States inthe middle 1930's, as a direct result of some ofthe illegal kidnapings by Nazi agents in countriesadjoining the Third Reich. In an article publishedin 1935, Lawrence Preuss recited the details ofseveral kidnapings by Nazi agents on Swiss andCzech territory. The author then maintained thatthere is an obligation on the part of the kidnapingstate to restore a prisoner to the asylum state andto punish the offending officers." In another leadingarticle published a year earlier, Professor EdwinDickinson argued against the jurisdiction ofnational courts over persons illegally seized. Saidhe: "If there is no national competence, obviouslythere can be no competence in the courts, whichare only an arm of the national power. To holdotherwise, it may be urged, would go far to defeatthe purpose and nullify the efficacy of interna-tional law.""3

Despite the arguments that "surely it is a scho-lastic subtlety which would distinguish the com-

" Id. at 103.2"When a fugitive has been kidnaped by private

persons, and, having been brought by force to theterritory of a foreign state, is there arrested, thereappears to be no obligation to release the prisoner.International responsibility is incurred only throughofficial complicity. A fortiori, there is no obligation tosurrender the prisoner when officials of the state ofasylum have participated in the irregular seizure orarrest." Preuss, Kidnaping of Fugitives from Justice onForeign Territory, 29 Ams. J. INT'L L. 502, 507 (1935).

"3 Dickinson, Jurisdiction Following Seizure orArrest in Violation of International Law, 28 Am J.INT'L L. 231 (1934).

petence of the nation and the competence of thecourt through which the nation acts,"" the Ameri-can courts have not been willing to condition theirjurisdiction on whether a person standing trialwas brought within the court's jurisdiction le-gally.15 The United States Supreme Court inFrisbie v. Collins stated:

"This Court has never departed from the ruleannounced in Ker v. Illinois... that the powerof a court to try a person for crime is not im-paired by the fact that he had been broughtwithin the court's jurisdiction by reason of a'forcible abduction'.... Due process of law issatisfied when one present in court is convictedof a crime after having been fairly apprized ofthe charges against him and after a fair trial inaccordance with Constitutional procedural safe-guards. There is nothing in the Constitutionthat requires a court to permit a guilty personrightfully convicted to escape justice because hewas brought to trial against his will."'"Apparently there is nothing in international law

that would prohibit an exercise of national juris-diction following an illegal capture. In its finaljudgment the Israeli court in the Eichmann casediscussed British and American decisions relatingto this issue and indicated that Palestinian caselaw, which constitutes precedent for Israel, hasadopted the unequivocal American view that acourt may not inquire into the manner by which aprisoner was brought before it. 7 Although legallythe Israeli court's authority over Eichmann could

4 Id. at 236.15 But see, The Mazl Toy case, Cook v. United States,

288 U.S. 102 (1933), as a possible indication of a newtrend holding that seizure in violation of a specificinternational treaty rather than a general rule ofinternational law was invalid. It should be noted thatin other areas of criminal law we have long adhered tothe maxim of "ex injuria jus non critur" out of whichgrew the principle that one should not be permitted tobenefit from the "fruit of the poisonous tree." See Elkinsv. United States, 364 U.S. 206 (1960); Mapp v. Ohio,367 U.S. 643 (1961). A survey of state cases in thisarea is provided by Scott, Criminal Jurisdiction of aState Over a Defendant Based Upon Presence Secured byForce or Fraud, 37 Mnm. L.R. 91 (1953). After report-ing that most states permit trial of kidnapped persons,Scott concludes: "This is inconsistent with the views ofat least some of these states as to analogous situationsin the fields of criminal and civil procedure." Id. at 107.See also Garcia-Mom, Criminal .Turisdition of a Stateover Fugitives Brought From a Foreign Country by Forceor Fraud: A Comparative Study, 32 IND. L.J. 427 (1957).16 Frisbie v. Collins, 342 U.S. 519, 522 (1952); Ker

v. Illinois, 119 U.S. 436, 444 (1886).17Attorney General v. Adolph Eichmann, Crim.

Case 40/61, Jerusalem District Court, passage 7(hereinafter cited as Trial Judgment, with passagenumber following).

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hot be challenged, a bad taste of justice achievedthrough an unlawful act still remained with thosewho firmly believe that the future of the worlddepends upon nations conforming in all instanceswith higher rules of international conduct.18

Others less sensitive to procedural proprieties haveargued that the abduction was justified by thenature and extent of the crimes charged and bythe impossibility of extradition of Nazis fromArgentina. Indeed, they assert that in some ex-treme situations the strict standards of positivelaw must yield to the natural and the moral law,19

and that the situation in this case called for a lawakin to the natural law of self-defense.2

Reviewing the inability of international laweffectively to curtail the practice of illegal kid-napings, one must draw the conclusion that theEichmann case has called new attention to a veryimportant deficiency in the law. Both internationallaw and order and individual justice make it in-advisable to continue the present rule of interna-tional law which makes a person's fate completelydependent upon the political and judicial consider-ations of the nation from which he was illegallycaptured. Clearly, the practice of kidnaping canbe curbed only if the kidnaping nation will not bepermitted to benefit from the fruits of its crime. Acaptive's return, however, is not always practica-ble. In cases where the captive's nation is unwillingto accept him back or generally in cases wherethe crime charged was one recognized in interna-tional law, it would appear preferable to providefor the prisoner's trial by an international tribu-nal. Another remedy, which would provide only apartial answer, would be the institution of aninternational writ of habeas corpus, proposed inrecent years.2 But such writ would merely permit

18 Woetzel, The Eichmann Case in International Law,1962 Cam. L. Rlv. (N.Y.) 671 (1962); Cardozo, WhenExtradition Fails, Is Abduction the Solution, 55 Am.J. INT'L L. 127 (1961).

19 Schwarzenberger, The Ekhmann Judgment, 1962CURmENT LEGAL PROBLEMS 248, 249, asserts that onemust "avoid the traps of the sterile variety of positivismand an eclectic identification of natural law withpositive law" in order "to cope above board with themajor issues on the appropriate legal and ethicallevels."

2o Silving, In Re Eihmann: A Dilemma of Law andMorality, 55 AM. J. INT'L L. 307 (1961). In support ofthe position that a court need not inquire into thecircumstances of the apprehension of a person held ona criminal charge, it was observed that "in criminalcases the interest of the public overrides that which is,after all, a mere privilege from arrest." In Re Johnson,167 U.S. 120 (1897) (per Brown, J.).2

1 Kutner, A Proposal for a United Nations Writ of

an opportunity to question the legality of thecaptive's detention; it would provide no tribunalfor his trial after his release from the jurisdictionwrongfully detaining him. Since it is self-evidentthat to permit a nation to obtain custody over aperson through an illegal act and thereupon toproceed to try him under its own laws, withoutany form of international supervision, does notappear to further the interests of an internationalrule of law, we must hope for early reforms in thisarea.n2

Tun JtlRISnICTioN oP IsRAEL's CoURTTo TRY ElcMLANN

To lawyers and students of international law,one of the most interesting aspects of the Eichmanmcase was the question of the jurisdiction of theIsraeli court to try him for crimes committed out-side the State of Israel and, indeed, before thestate came into being. The question of jurisdictioncan be divided into two separate phases: the firstconcerns the retroactive nature of Israel's 1950law which provides for the punishment of Nazisand Nazi collaborators;2 the second relates to theextraterritorial jurisdiction of the Israeli courts totry a person for crimes committed outside thenational boundaries.

The legal literature dealing with the Eichmanntrial revolves primarily around these points. Boththe opinion of the District Court which tried Eich-mann and the Supreme Court of Israel whichheard the appeal devoted considerable space tothe question of jurisdiction.N It should be statedat the outset, however, that the question of juris-diction was never properly before the Israelicourts. Israel does not have a written constitution.Since Israel's courts conform generally to theBritish judicial tradition, the American concept of

Habeas Corpus and an International Court of HumanRights, 28 TuL. L. REv. 417 (1954). See also Katz, TheRole of Law in International Affairs as Illustrated by theEichmann Case, 84 N.J.L.J. No. 2, p. 1 (1961), sug-gesting the right of an individual to sue for his releasein the International Court of Justice. Also of interestis the draft statute for an International Court of HumanRights proposed by Australia in 1948. U.N. Doe.N/CN. 4/AC 1127 (May 10, 1948).

22 Scott, supra note 15, at 107, calls similarly for arule of procedure in our domestic law "which wouldforbid courts to try accused persons who have beensubjected to [this] type of lawless treatment." See alsoGarcia-Mora, supra note 2, at 449 (1953): "one canentertain the hope that the courts will reconsider... and [will] finally recognize the unsoundness of theirposition."

23 4 Israel Law 154 (5710-1949/50).24Trial Judgment 7-11.

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judicial review is unknown. Consequently, onceIsrael's legislature has enacted statutes authorizingthe courts to try and punish certain offenses, it isbeyond the power of the courts to question thevalidity of such legislation. 25 Lacking the powerto overturn the law under which Eichmann was tobe tried, the Israeli court, nevertheless, dealt withthe issue quite directly, realizing that the mannerof its resolution of the jurisdictional issue will havea bearing not only upon world opinion but alsoupon the development of Israel's domestic lawand the growth of international law.

Counsel for Adolph Eichmarn argued that thecrimes committed by the defendant preceded theestablishment of the State of Israel and conse-quently the statutes under which Eichmann wastried were not only retroactive but, also, the actsof a state which was non-existent at the time ofthe cime. The Nazi and Nazi Collaborators Lawwas therefore, strictly speaking, an ex post factolaw. Furthermore, the crimes committed by Eich-mann were not committed on the territory ofIsrael. The victims were not citizens of the Stateof Israel or its predecessor, the Palestinian Man-date Government. What, therefore, was the court'sauthority for this trial?

Validity of Retroactive Legislation

The statute under which Eichmann was triedwas similar in scope to the provisions of themulti-national agreement establishing the Inter-national Military Tribunal at Nuremberg.26 Inboth instances, punishment was authorized forcrimes hitherto ill-defined in international law:"war crime," "crime against humanity," "crimeagainst peace. ' 'H In both instances, the specific

25 Leavy, supra note 5, at 822. Said the SupremeCourt of Israel in an earlier case: "Provided thelegislative authority has clearly demonstrated itsintention that the law which it has enacted shall haveextraterritorial effect, the local court will have to... ignore completely the restriction imposed by theprinciple of territorial sovereignty." Amsterdam v.Minister of Finance, (1952) Int. Law. Rep. 229, 232.

26Agreement between the United Kingdom, theUnited States, France and the USSR, Aug. 8, 1945.Trial of War Criminals, Document, U.S. Dep't ofState, Pub. 2420, pp. 13-15 (1945).

2 The precise definition of these crimes in inter-national law is of recent origin. Cowles in Universalityof Jurisdic-tion Over War Crimes, 33 CALIF. L. REv.177, 181 (1945), advances the argument that what isnow called a "war crime" is the same type of offenseas was formerly styled an act of brigandage. He assertsfurther that the term "war crime" was first used byOppenheim in 1906, in 2 OPPENHEIt, INTERNATIONALLAW 263. While Oppenheim, indeed, complained in1906 that other writers of the Law of Nations have

laws under which the culprits were tried were notin effect at the time the crimes were committed.The Nuremberg court and, subsequently, theUnited Nations General Assembly in its affirma-tion of the charter and judgment of the tribunalgave broad international recognition to the legalityof such ex post facto legislation.2 8 A substantialschool of legal scholars subscribes to the view that apenal statute need not be condemned merely be-cause of its retroactive effect, as long as the crimepenalized was obviously and undeniably pro-hibited under the laws of most civilized nations.

hitherto not "systematically treated the question ofwar crimes," he nevertheless treated these crimes asdomestic rather than international in nature, con-cluding that the "belligerent can and actually must inthe interest of his own safety punish these acts" whichare "termed war crimes whatever may be the motive,the purpose, and the moral character of the respectiveact." Id. at 264. More specific and earlier acknowledg-ment of the existence of rules of conduct in warfare, theviolation of which would constitute a "war crime," isgiven by HALL, INTERNATIONAL LAW (4th ed. 1895).Hall recognizes the right of nations to punish for"breach of universally acknowledged laws" of war.Id. at §135. A similar position was taken by HOLLAND,Tim LAW AND CUSTOMS OF WAR ON LAND, Nos. 117-18(1904). Schwarzenberger, The Judgment at Nuremberg,2 YEAaoon. o, WORLD Aiz.AIMs at 94-96 (1948),asserts that the recognition of war crimes is far fromnew and cites even medieval precedents, dating back to1268. See also GOULD, AN INTRODUCTION TO INTER-NATIONAL LAW 666 (1957). It should be noted, also,that the war standards established by the 4th HagueConvention call for compensation rather than criminalpenalties for the violators. HAGUE REGULATiONSRESPECTING THE LAW AnD CusToms OF WAR ONLAND, Hague, Oct. 18, 1907. It is only in the postWorld War II period that Oppenheim gives recognitionto the status of war crimes in international law, finallyasserting that "the notion of war crimes is based on theview that states and their organs are subject to criminalresponsibility under International Law." 2 OPPENHEIM& LAUTERPACET, INTERNATIONAL LAW 567 (7th ed.,1952). It was the charter of the International MilitaryTribunal at Nuremberg that officially defined themeaning of "war crimes" ("violations of the law orcustoms of war") and added to them as violations ofinternational law "crimes against humanity" ("murder,extermination, enslavement, deportation ... before orduring the war.., whether or not in violation of thedomestic law of the country where perpetrated") and"crimes against peace" ("planning... or waging of awar of aggression, or a war in violation of internationaltreaties ... or assurances"). See Trial of the WarCriminals, U.S. Dep't of State, Pub. 2420, pp. 15, 16(1945). The Israeli Nazi Punishment Law (4 Israel Law154 (5710-1949/50)) under which Eichmann was trieddid not encompass "crimes against peace" but recog-nized instead "crimes against the Jewish people"which in the pattern of the U.N.'s Genocide Convention(U.N. Doc. A/810, p. 174) consist of acts committedwith "intent to destroy the Jewish people in whole orin part."

2 U.N. Gen. Ass. Off. Rec. 1st Sess., 2nd pt., Plenary1144 (A/236) (1946).

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It is the rationale of this position that in such cases"the law is retroactive in form, not in substance," 29

and the punishment is not therefore, liberallyspeaking, retroactive 0 The validity of the lawhas also been defended on the ground that theterrible crimes of the Nazis required unusual penalprovisions, "for no sane legislator could havecontemplated such crime to be even possible andno tribunal could have been provided for its ad-judication in advance." '' A compelling defense ofthe justice meted out at the Nuremberg Trialstates:

"[11f the act was a heinous violation of inter-national law; if it was recognisable as such tothe individual; if he could reasonably be expectedto know that it was punishable; and if he in-tended to do the thing he did which was inviolation of his duties and obligations under in-ternational law.., there could be no violationof the maxim nullum crimen nulla poena in sucha case.

322

The Israeli court, in. a like vein, had this to saywith regard to the retroactive provisions of itslaw:

"The Israel legislature embodied into domesticlaw what have long been crimes under the lawof all civilized nations, including the Germanpeople ... it cannot be said that the perpetratorsof the crimes defined in the law in question'could not have a mens rea because they didnot know and could not know that what theywere doing was a criminal act,' [and further-more:] There is [not] any taint of ex postfacto-ism in the law of murder."3'

It needs to be stressed that there is in actualityno binding prohibition in international law againstretroactive criminal statutes in domestic law. TheUniversal Declaration of Human Rights has takenthe first step in this direction, but its provisionsare not self-executing and must await futurelegislation by the individual states for effectua-

2 Baade, supra note 3, at 412, 413.- See the German concurring position in Jescheck,

Die Vemnntwortlichkeit Der Staatorgane Nach.V61kerstrafrecht; eine Studie Zu Den NiimbergerProzessen 373 (1952). See also Schwarzenberger, TheEichmann Judgment, supra note 19, at 258: "a sovereignstate could hardly have better reason for passingretroactive legislation than the revindication of theminimum requirements of civilization, 'nor can anycourt exercise jurisdiction on any worthier ground."

Stying, supra note 20, at 336.'" WoxrzxL, ThE NURFmBERG Ipms IN INTER-

NATIONAL LAW 115, 116 (1960).1 Trial Judgment 7.

tion. A nation enacting ex post facto laws willtherefore not be in violation of positive interna-tional law, despite the fact that it may be con-demned by world public opinion. Whether aninternational law statute, which the NurembergCharter may have been, providing retroactivepenalties is illegal may be another question. It isnoteworthy that regardless of its multi-nationalcharacter, the Nuremberg Tribunal was estab-lished by the occupation forces then exercisingsovereignty over Germany, and its jurisdictionindeed was claimed under both international lawand domestic law. The Israeli court was, on theother hand, merely exercising its powers underdomestic law. In both instances the tribunals werelooking to the legal principles of other civilizednations and to international law for justification,moral support, permissive authority, and prec-edent. It is in this light that the retroactive juris-diction of the Nuremberg and Eichmann tribunalsmust be judged.

The Nuremberg Charter claimed to derive per-missive authority from the General Pact for theRenunciation of War, popularly known as theKellogg-Briand Pact, which was signed at Parison August 27, 1928, and prohibited resort to war.3

Yet the Pact failed to proscribe criminal penaltiesfor its violators. 6 The Israeli court, similarly,based much of its claim for authority upon inter-national enactments and precedent which, al-though dating prior to the adoption of the Israelilaw, were nevertheless not effectuated until after

34Article 11(2) of the Universal Declaration ofHuman Rights, approved Dec. 10, 1948, by the U.N.General Assembly, endorsed the principle of nullumcrimen nulla poena: "No one shall be held guilty of anypenal offense, on account of any act or omission whichdid not constitute a penal offense, under national orinternational law, at the time when it was committed."U.N., YEARBOOK ON HuMw RIGHTS voR 1948, pp.457, 467 (1950). A similar clause was inserted inArticle 13 of the Draft Covenant of Civil and PoliticalRights of the Commission on Human Rights of the U.N.U.N., YEARBOOK ON HuMAN RiGnTs ZOR 1952, pp.424, 427 (1954).

"Lauterpacht, The Pad of Paris and the BudapestArticles of Interpretation, 20 TRAsAcTIoNS OF THEGROTus Soc'y 178 (1935).

36A strong argument against deriving criminalpenalties from the Paris Pact is advanced by Schick,International Criminal Law-Facts and Illusions, 11MOD. L. REv. 290 (1948). Schick says: "None of thevarious non-aggression treaties concluded in the periodbetween the two World Wars permits the interpretationthat the perpetrators of an aggressive war may beexposed to criminal prosecution .... Far from creatingan international criminal law the Pact of Paris was noteven intended to provide for penal sanctions against analleged aggressor state." Id. at 293.

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the crimes were committed. Indeed, it is interestingto note that the acts with which Adolph Eich-mann was charged may fall within the prohibitionof positive international law as it is now recog-nized. "War crime" and "crime against humanity"have been specifically defined in the Charter an-nexed to the August 8, 1945, Agreement made inLondon among the United Kingdom, the UnitedStates, France, and the USSR establishing theInternational Military Tribunal at Nuremberg."The principles of law embodied in the Charter andin the judgment of the Tribunal were affirmed asinternational law by a unanimous resolution of theUnited Nations General Assembly on December 11,194.8 s Eichmann's terrible record of violence andatrocities also falls within the definition of genocideas contained in the United Nations Resolutionon the Prevention and Punishment of the Crimeof Genocide and in the text of the Conventionadopted by the General Assembly on December 9,1948. 39

The Israeli court indicated that following WorldWar II several nations affected by the aggressionand atrocities of the Third Reich enacted statutessimilar to Israel's Nazi law.40 Yet the fact that

international law now contains sufficient positiveprovisions to penalize similar conduct in the future,does not fully answer the question as to the legalityof the retroactive laws pertaining to deeds com-mitted in the past. Despite the Jerusalem DistrictCourt's reiteration that there is not "any taint ofex post facto-ism in the law of murder," still, thefear remains of abuses that could be made in thename of international law. There is always thefear that a victorious nation or group of nationswill join together to define as criminal conduct suchactivities as they consider contrary to their own

7The London agreement and the Nuremberg trialrelied greatly on an interpretation which sees in thePact of Paris authority for individual criminal responsi-bility for aggressive war. See Schick, supra note 36, at294, 295. Justice Jackson in his opening speech beforethe Nuremberg tribunal clearly sets forth the con-struction according to which a war in violation of thePact is illegal in international law and that those whoplan and wage such war are, therefore, committing acrime. H.M. STATIONARY OFFIcE, THE TRIAL orGERmAN MAJOR WAR CRIMINALS, OPENING SPEECHESor T CHIEF PRosacuioas (1946).

38 U.N. Gen. Ass. Off. Rec. Ist Sess., 2nd pt., Plenary1144 (A/236) (1946).

39 U.N. Doc. A/810, p. 174. For a discussion of thissubject as well as a general review of the need for thegrowth of international law in the area of protection ofthe rights of individuals, see JEssu'p, A MODERN LAWOF NATIONS 92, 101, 103 (1950).

40 Trial Judgment 37.

interests. There is always the fear that the winnermay not be a nation with "right motives" but onewith "wrong motives." The only solution is ap-parently in the drafting of an international codeunder which, and only under which, punishment isto be meted out-whether by domestic or inter-national tribunals. Possibly for the future, one ofthe more interesting aspects of the Eichmann trialwill be the fact of his trial, by a domestic court andunder a domestic law, for conduct which at thetime of the trial had already become prohibited bypositive international law.4'

Extraterritoriality of Legislation

Shortly after Eichmann's capture, BrigadierGeneral Telford Taylor, who previously served as achief prosecutor at Nuremberg, voiced his concernthat trying Eichmann in Israel, rather than inGermany, would be contrary to the traditions ofthe law. It was General Taylor's position thatunder the generally accepted principles of law aman is entitled to be tried where his offense ischarged to have been committed, and he proceededfurther to substantiate his view by arguing that:"This right is guaranteed in the 6th Amendmentto the Constitution and its origin antedates theMagna Carta where it is also to be found."4' Otherwriters have also concerned themselves with thequestion of Israel's jurisdiction to try Eichmannfor crimes committed elsewhere, since the juris-diction of nations is limited in most cases to crimescommitted within their national boundaries.Several exceptions have, however, been recog-nized.43 Nations, under a theory described as the"principle of active personality" or "nationalityprinciple," often assume jurisdiction over criminalacts performed by their nationals in foreigncountries.M Likewise, the right of national juris-diction has been recognized, under a theory de-scribed as the "principle of passive personality,"in cases where crimes, although committed outside

41 For an analysis of the Nuremberg trial as precedentfor the future see GLuEcK, THE NUREMBERG TRIALAND AGGREssrVE WAR 99 (1946).42 Taylor, Large Questions in the Eidlmann Case, N.Y.Times Magazine 11, 22 (Jan. 22, 1961).

41 For a discussion of the various princinles seePella, Towards an International Criminal Court, 4tAm. J. INT'L L. 37, 46 (1950); and Comment, 46CORNELL L.Q. 326, 329-30 (1961). See also Robinson,Eichrnann and the Question of Jurisdiction, 30 Consm.x-TARY 1 (1960).

See Chandler v. United States, 171 F. 2d 921 (1stCir. 1948), cert. denied, 336 U.S. 918 (1949), involvingan American broadcasting abroad for the enemy.

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the national territory, affected citizens of the try-ing nation.45 Also given recognition is the "principleof real protection" or "protective theory," per-mitting national jurisdiction in cases of crimescommitted abroad against the most essential in-terests of the state.46 None of these specific excep-tions applies in the case of Eichmann. The crimeswere committed outside the territory of Israel, and,strictly speaking, the vital interests of the State.ofIsrael, not being yet in existence, could not havebeen directly at stake.

Eichmann's counsel argued this point. Hereiterated that there was absent a linking pointbetween the crimes and Israel because territorialitywas the only true basis of jurisdiction. The Israelitrial court responded vigorously to the suggestionthat jurisdiction lay only in the countries of Europewhere the crimes were committed. Consideringthis argument as absurd, the court stated bitterly:

"In other words, eighteen nations do have theright to punish the accused for the murder ofJews who resided in their territories, but thenation of those who were murdered has no rightto inflict such punishment because those personswere not extermined on its territory."07

The court could not understand anybody's failingto see the connection between Israel and the Naziholocaust. "The connection between the Stateof Israel and the Jewish people needs no explana-tion," the court concluded.48

Whether or not Israel's extraterritorial NaziPunishment Law conforms with the standards ofAmerican constitutional law, its provisions arenot contrary to the general legal practices in theworld. There appears to exist no rule of interna-tional law governing the penal jurisdiction ofnational courts. In the now classical Lotus casethe question of jurisiction came. up before thePermanent Court of International Justice.49 Thatcase developed from a collision between the Frenchsteamship Lotus and the Turkish freighter Boz-

4 5 Comment, 46 ComEL L.Q. 326, 329 (1961).46National jurisdiction is recognized in cases of

crimes committed abroad by aliens "against thesecurity, territorial integrity, or political independence'of the state" by the Draft Convention on Jurisdictionwith Respect to Crimes, art. 7, HARVAn RESEARCH m

TERNAmONAL LAw, AM. J. INT'L L. 435, 440 (Spec.Supp. 1935). See United States ex rd. Majka v. Palmer,67 F. 2d 146 (7th Cir. 1933), involving perjury com-mitted before American consul abroad.0 Trial Judgment 34.

4 8 Ibi.49 P.C.IJ., ser. A., No. 10 (1927). Also in 2 HunsoN,

WORMD COURT REPORTs 23.

Kourt, on the high seas. The Boz-Kourt was sunkand eight Turkish nationals perished. After at-tending to the safety of the survivors, the Lotuscontinued her voyage to Constantinople. Turkeyapprehended the officer on the watch on the Lotusat the time of the collision and tried him for in-voluntary manslaughter. Following the officer'sconviction the French and Turkish governmentssubmitted the question of Turkey's jurisdictionto the World Court. Holding in favor of Turkey,the court concluded that:

"International law does not prevent states fromexercising jurisdiction in their own territory incases involving acts committed abroad, wherethere can be no reliance on some permissive ruleof international law."''5

The court also went on to say that, where there isno prohibitive rule of international law, "everystate remains free to adopt the principles whichit regards as best and most suitable."'"

There is, however, no total silence in interna-tional law and practice with regard to the extensionof jurisdiction beyond the territorial boundaries.Indeed, the special nature of the crimes chargedagainst Eichmann possibly permits the raising ofthe international law principle of universality ofjurisdiction. International law has long recognizedcertain crimes as being universally reprehensibleand has marked the offenders as hostes generishumani (enemies of the human race) and subjectto trial any place. Piracy has been accorded thisspecial status, both because piracy is everywheremade a crime and because piracy is often com-mitted on the high seas over which no nation hasjurisdiction. The punishment of brigands, likewise,has been said to come within the rule of univer-sality. Grotius specifically expressed the view thatthe power to punish such persons was derived fromthe law of nations:

"The fact must also be recognized that kings,and those who possess rights equal to thosekings, have the right of demanding punishmentsnot only on account of injuries committedagainst themselves or their subjects, but also onaccount of injuries which do not directly affectthem but excessively violate the law of natureor of nations in regard to any persons whatso-ever."n

Could the same principle be extended to other50Id. at 19.1 Id. at 20.

12 GROTtos, DE JuRE BEmiu AC PAcis Lmais TRs

[16461 504 (Carnegie trans. 1925).

NICHOLAS N. KITTPJE

crimes which are generally recognized? Could theprinciple be extended whenever a crime is com-mitted in a territory or a country where no ade-quate judicial system is in existence-as was thecase with Nazi Germany?"

In 1926 the Rumanian jurist, Vespasian Pella,argued:

"Absolute piracy (piracy jure gentium) is re-garded today as an offense of a special characterbecause it is punishable wherever encountered.We already see here in embryo the principle-which in future social relations, will become thepractice-of penalising throughout the worldviolations of laws which are common in everycountry.

' 'H

Several years later, in 1933, Raphael Lemkin,author of the now accepted Genocide Convention,submitted a proposal to the International Con-ferencp for Unification of Criminal Law whichwould have made it a crime under the law ofnations (delictum juris gentium) to exterminateracial, religious, or social collectivities. The crimewas to be punishable irrespective of the place inwhich the crime was committed and irrespectiveof the nationality of the criminal."5 Despite therejection of the proposal at that time, it served tohighlight the future trend.

The present scope of universality of jurisdictionin international law is uncertain. It should benoted, however, that some writers have arguedthat states now have the right to try aliens forother crimes similar to piracy committed outsidetheir territory, and these crimes have been de-scribed to include slave trade; traffic in women,children, narcotics, and pornographic literature;abuses of radio; and destruction of submarinecables.56 Likewise, attention should be given tothe 1951 advisory opinion of the InternationalCourt which stated that the right to try an in-dividual for a crime against humanity was uni-versal and could be exercised by any nation inwhose custody an accused rested.n

"See, on thisparticular question, Cowles, Universalityof Jurisdiction Over War Crimes, 33 CALi. L. Rv. 177(1945).

4Reply of Roumania (drafted by M. Pella) Nov. 20,1926, to Questionnaire No. 6, propounded by theLeague of Nations Committee of Experts for theProgressive Codification of International Law, Leagueof Nations Doc. No. c. 196.M. 70, 1927 V., at 202(1927).

55 Lemkin, Genocide as a Crime Under InrnationalLaw, 41 ABL J. INT'L L. 145, 146 (1947).

56 WOETZEL, THE NuREmBERG TRIALs IN INTER-

NATIONAL LAW 64 (1960); Pelia, supra note 43, at 54."Trial Judgment 18. Advisory opinion of Inter-

There appears to be no compelling argumentagainst extending the concept of universality assuch. The Israeli court, in passing judgment onEichmann, made the interesting observation thatthe territorial principle is by no means the onlybasis of jurisdiction and that indeed it is only acompulsory minimumAs The conclusion seemsvalid that:

"[Tihe notion that states may punish onlyoffenses actually or at least constructively com-mitted on their territories is merely a rule ofAnglo-American internal criminal law, whichagain, of course, is subject to many exceptions.... [V]irtually all systems of criminal law reachmuch further."59

Yet it would be dangerous for the healthy growthof international law to delegate to each nationthe authority to extend the rule of universality asit may see fit. If universality of jurisdiction is toexpand, it is best that it does so through the es-tablishment of pre-agreed international standards.

In asserting jurisdiction over Eichmann's crime,Israel was, in fact, not merely arguing for the ex-tension of the rule of universality, but also claimingto have derived its right, at least in part, from itsspecial relationship to a large portion of the vic-tims-those of the Jewish heritage. Israel's courtstressed that Israel's right to represent Jews whohad no nationality or who were the victims of Nazioppression was recognized by the Federal Republicof Germany in the 1952 Reparation Agreementbetween Israel and West Germany. 60 The court,in its judgment, compared the special relationshipbetween the victims and the State of Israel to therelationship between the root and branch of a treeand its trunk." Indeed, one of the subtle thrustsof the judgment seems to be the assertion ofIsrael's sovereignty and right to protect the legalrights of Jewish people wherever they may befound.6

This emphasis on a special right of jurisdiction,based on the racial or religious affiliation of thevictims, may require careful analysis. At least oneleading commentator had expressed concern, evenbefore the trial, because Eichmann's trial was to be

national Court of Justice with regard to the reserva-tions to the Genocide Convention, May 28, 1951.

58 Trial Judgment 25."9 Baade, The Eichmann Trial: Some Legal Aspects,

1961 DuxE L.J. 400, 416.10 Agreement between Israel and the German

Federal Republic, Sept. 10, 1952 (Document, Jerusalem,1953).61 Trial Judgment 35.6Leavy, supra note 5, at 824.

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under a law specifically penalizing "crimes againstthe Jewish people." Said General Taylor:

"[T]o proscribe the murder of Jews as a crimeagainst Jews carries the dangerous implicationthat it is not a crime against non Jews....Nuremberg was based on the proposition thatatrocities against Jews and non Jews areequally crimes against world laws .... [T]o de-fine a crime in terms of the religion or nationalityof the victim, instead of the nature of the crim-inal act, is wholly out of keeping with the needsof the times and trend of modern law."n'

The explanation has been offered, in partial answerto this argument, that in referring to "crimesagainst the Jewish people" the Israeli law wasmerely classifying the object of the crime, similarto the way a statute book may divide offenses ac-cording to whether they are "crimes against prop-erty" or "crimes against a person."' 4 Furthermore,such legal classification is not intended to implythat only the object of the crime is entitled torelief, for in all criminal cases it is obviously thewhole society that is entitled to relief. Yet thequestion remains whether such differentiationbetween the objects of international crimes servesa valid purpose and is at all necessary. The asser-tion of Israel's sovereignty over the Jewish peoplewas designed to end "the curse of dispersion andthe want of sovereignty of the people of Israel,upon whom any criminal could commit his out-rages without fear of being punished by the peopleoutraged." 65 But despite this laudable purpose,this assertion-if giving rise to similar assertionsby other nations over expatriated nationals, theirdescendants, and other specially designatedgroups-may nevertheless pose a number of prob-lems in the conduct and the development of inter-national law.66

TH INDIVMDUAL'S R-ESPONSIBIInY IN

INENATioNA1 LAW

It has long been recognized that the individualis not generally subject to international law. Inter-

6 Taylor, Large Questions in the Eichmann Case,N.Y. Times Magazine 11, 22 (Jan. 22, 1961).

"Interestingly enough, the earlier draft of Israel'sNazi Punishment Law dealt only with "war crime"and "crime against humanity." The laxiguage in thepresent law which deals with "crime against the Jewishpeople" is much akin to the language in the GenocideConvention. See Trial Judgment 16, 17, 33.

"' Trial Judgment 35."Katz, The Role of Law in International Affairs as

Illusrated by the Eichmann Case, 84 N.J.L.J. 1 (1961).

national law pertains to the rights and duties ofnations or sovereigns, and it is only through thesovereign that the individual becomes indirectlyinvolved. The traditionalists have argued that"Individuals alone being subjects of criminallaw.., and international law prescribing no sanc-tions for individual offenders, these last cannot besubjected to an international jurisdiction."17 Yetboth in the Nuremberg Tribunal and in the Eich-mann case individuals were on trial for what wascommonly described as violations of internationallaw. At Nuremberg a multi-national tribunal wasasserting its jurisdiction under international law.In the Jerusalem courtroom it was a nationaltribunal dispensing domestic justice according toa law described to have been derived from theprovisions of the law of nations. In both instancesthe motivators or active participants in the ThirdReich's national policy were put on trial as in-dividuals. But the trial of an individual for actsauthorized, ordered, or sanctioned by his govern-ment has been described as a practice that mayraise havoc in the orderly future conduct of govern-mental business. Should an individual be heldresponsible for acts performed in the service ofhis nation? It was the argument of Adolph Eich-mann that:

"[M]y honor is loyalty .... [Tihe question ofconscience is a matter for the head of state, thesovereign.... [Tihe head of my state ordereddeportations, and the part I played in these de-

67 Pella, supra note 43, at 40. For a discussion ofindividual responsibility under international law, seeSurvey of International Law in Relation to the Work ofCodification of the International Law Commission, U.N.Doc. A/CN. 4/1 REv. 1, Feb. 10, 1949, pp. 19-22. It isworth noting, also, that in 1944 Prof. Hans Kelsenpublished in the annex to his book, PEAcE TmouGHLAw, a draft of a proposed Treaty Stipulation Establish-ing Individual Responsibility for Violations of Inter-national Law. See, furthermore, Schick, InternationalCriminal Law-Facts and Illusions, 11 Mon. L. R1v.290 (1948), to the effect that the first significantattempts were made only at the end of the First WorldWar to create individual criminal responsibility underinternational law for "political offenses." It is in-teresting to note, also, that in the post civil war periodthe United States Supreme Court had before it severalcases involving what may be described as war crimes,and the Court consistently adhered to the opinion thatit is a principle of public international law that domesticcourts have no jurisdiction to try enemy persons foracts committed during and as part of belligerentoperations, even though alleged to have been committedin violation of the laws of war. Ford v. Surget, 97 U.S.594 (1878); Coleman v. Tennessee, 97 U.S. 509 (1878);Dow v. Johnson, 100 U.S. 158 (1879); Freeland v.Williams, 131 U.S. 405 (1889). See Finch, Jurisdictionof Local Courts to Try Enemy Persons for War Crimes,14 Am J. INTL L. 218 (1920).

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NICHOLAS N. KITTRJE

portations emanated from the Master at thetop."

Eichmann's counsel likewise argued that under thetheory of "act of state" 9 only the sovereign shouldbe held liable for the acts of his nationals in carry-ing out state policy. 0 He stressed the pragmaticplight of the individual enmeshed in the missionof his country. Said Dr. Robert Servatius:

"The basic principle of every state is loyalty toand confidence in the leadership. The deed isdumb and obedience is blind. These are thevirtues on which alone a state can build itsfoundations."'The Eichmann case will apparently serve further

to establish the responsibility of the individual ininternational criminal law. For centuries scholarsand legal tribunals have wrestled with the plea ofsuperior orders. Only in this century has the lawof najions come firmly to reject this defense,particularly in instances where the orders weremanifestly unlawful and especially in cases of highranking officers who had time to reflect upon thelegality of orders given them.72 Obviously, thereis a need for the extension of international criminal

8Attorney General v. Adolph Eichmann, crim.case 40/61, Jerusalem District Court, transcript 7.7.61;Session 88 11.6 Kelsen, Collective and Individual Responsibility in

International Law With Particular Regard to the Punish-ment of War Criminals, 33 CALIF. L. REv. 530 (1943).7

0 Possibly one of the earliest recognitions given bypositive international law to individual responsibilityfor war crimes was incorporated in the post World WarI Versailles Treaty. Although recent legal writings havesomehow overlooked the Versailles Treaty, and theNuremberg and Eichmann Tribunals also failed torefer to it, this treaty should be noted for its prescriptionof penalties for war crimes. By Article 227, the AlliedPowers arraigned William II, the former GermanEmperor, for "a supreme offence against internationalmorality and the sanctity of treaties." The Kaiser wasto be tried by a special tribunal to be guided by "thehighest motives of international policy, with a view tovindicating the solemn obligations of internationalundertakings and the validity of internationalmorality." This indeed was to be a forerunner of theNuremberg "crime against peace." The trial did nottake place, since William II fled to the Netherlands. Inaddition, Article 228 of the treaty provided that "TheGerman Government recognizes the right of the Alliedand Associated Powers to bring before military tri-bunals persons accused of having committed acts inviolation of the laws and customs of war," and Germanyfurther agreed to surrender all persons charged withhaving committed such acts. See Report of the Com-mission of the Versailles Conference, 14 Am. J. INT'LL. 95 (1920).

7 Trial Judgment 216.72 In 1906 Oppenheim wrote that "violation of rules

regarding warfare are war crimes only when committedwithout an order of the belligerent Government con-cerned." See 2 OPPENHEi , INTERNATiONAL LAw 264(1906).

law to individuals. The Nuremberg Tribunal cor-rectly observed:

"Crimes against international law are com-mitted by men, not by abstract entities, andonly by punishing individuals who commit suchcrimes can the provisions of international law beenforced.... The principle of international lawwhich, under certain circumstances, protects therepresentatives of a state, cannot be applied toacts which are condemned as criminal by inter-national law.'""

But however desirable it may be to see the usheringin of a system of international law which wouldprotect the individual against the injustices offoreign powers as well as of his own sovereign, it isdubious whether this can be properly accomplishedby permitting one nation to sit in judgment in anad hoc fashion on actions performed under theauthority of another nation. If certain rights ofindividuals are to be protected and certain stand-ards of national conduct are to be enforced, it isessential that these rights and standards be clearlyand positively defined by the international com-munity, to make certain that political interests andnational prejudices do not take the place of inter-national law.,

CONCLUSIONS

The majority of legal commentators on theEichmaun case have upheld the right of the Stateof Israel, in conformity with international law, totry the kidnaped Adolph Eichmann in an Israelicourt under an admittedly extra-territorial andretroactive Israeli law.74 Most writers go no furtherin the review of the case, considering the legalmatter closed upon the determination of legality.75

But the unfortunate truth appears to be that thelegality of the Eichmann case is not derived from

7 'Leavy, The Eichmann Trial, Report from Jerusalem,37 CALIF. B.J. 243, 246 (1962).

74 For a strong argument against the legality of thetrial, see Wechsler, Adolph Eichmann ... and the Law,19 N.Y. CountY L.B. BULL. 101 (1962). While up-holding Israel's jurisdiction, some commentatorsexpressed criticism of the trial's failure to comply withcertain recognized procedural standards. The complainthas been heard that the court was not an unbiased one,due to the pre-trial pronouncement of Eichmann's guiltby one of the judges. The further complaint has beenmade that holding the trial in Israel not only meanttrial in a hostile jurisdiction, but also deprived thedefendant from producing witnesses of his choice. See,also, Cardozo, When Extradition Fails, Is Abduction tiSolution? 55 Am. J. IN'L L. 127 (1961).75 An outstanding exception is the searching articleof Schwarzenberger, The Eichmann Judgment, 1962CURRENT LEGAL PaROBLEms 248.

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the particular compliance of this case with somehigh and taxing standards of the law, but fromthe general permissiveness of the applicable inter-national law, under which, apparently, "every in-dependent state, has jurisdiction to punish warcriminals in its custody regardless of the nationalityof the victim, the time it entered the war, or theplace where the offense was committed."7 6

Indeed, even some of the commentators whofound the Charter of the Nuremberg Tribunal ob-jectionable on the ground that it penalized politicaloffenses (such as "crime against peace") hithertonot recognized in international law, have not madethe same objection to the trial of Eichmann, whowas tried and convicted for "crime against hu-manity" (of which the "crime against Jews" is amere particularization) and "war crime"-bothof which have had a longer history and recognitionin international law."

The fact that the trial of Eichmann did notconstitute a violation of international law, failsto answer completely the question whether Israel'sconduct in this case conforms to the standards ofinternational conduct required to meet the growingneeds of a world society striving for a greater de-gree of order and security through more effectivestandards of world law. As has been providentlypointed out, "the important thing is that the trialand judgment shall not only be but appear to bejust and fair, and shall contribute to the growthof law among the nations."78

The trial of Eichmann complied with only a partof this admonition. It is undeniable that the actualconduct of Eichmann's public trial complied with ahigh standard of judicial process and also effec-tively conveyed this impression to the worldcommunity. But while in the long run the case willin most likelihood help fortify the body of inter-national criminal law-through its reiteration ofthe Nuremberg principles and the reassertion ofindividual responsibility-it has unfortunatelyleft the impression that this result was partiallyproduced through force. Indeed, the illegal forceemployed in bringing the accused to trial made itunclear in the mind of the world whether it was

"force" or whether it was "justice" which hadwon in the last analysis. The keen observation

7 Cowles, Universality of Jurisdidcin over WarCrimea, 33 CAmrX. L. REv. 177, 218 (1945).

7 Compare Schick, International Criminal Law-Facts and Illusions, 11 MOD. L. Rzv. 290 (1948), withGreen, The Eichmann Case, 23 MOD. L. REv. 507(1960).78 Taylor, supra note 63, at 25.

has been made in this connection that "the causeof law is always poorly served by lawless law en-forcement." 9 Clearly, the precedent-setting valueof the case, which gives recognition to universallyenforced international criminal penalties, suffersfrom the fact that Eichmann's apprehension andpunishment were not accomplished throughjudicial process only.80 In the final analysis, it hasbeen suggested, the trial of Eichmann failed toanswer the fear of those who can see the misuse ofthe name of international law, in future times, by avictorious force which may not necessarily be onthe side of justice. But what is feared most, in-deed, is the impact of lawless law enforcement onour own morality and judicial institutions ratherthan that it may provide, in the future, an "ex-cuse" or "precedent" for the "wrong" victor whorequires little or any such precedent.

Because of the criticism of the Nuremberg trialas one conducted under the auspices of the vic-torious powers, it was the hope of many that futureinternational tribunals would be more broadlyconstituted, in order to alleviate the fear of po-litically motivated or oriented justice and to lendfuture judgments wider international scope,,Unfortunately, Israel's decision, based on under-standable domestic needs, to try Eichmann in itsown courts, has not complied with this hope. Theabsence of an existing international criminaltribunal made it difficult for Israel to do otherwise.Yet it is feared that this unilateral enforcementmay considerably weaken the case's role as aneffective deterrent against future internationalcriminal behavior.

In bringing the Eichmann case before a domesticrather than an international tribunal, Israel never-theless acted in accordance with historical practicesand may have very well contributed to the jointnational-international responsibility for the crea-tion and enforcement of international criminallaw. The inability or unwillingness of the inter-

79 Wechsler, supra note 74, at 102.8 See Cardozo, supra note 74, at 135. "We strongly

champion the rule of law in world affairs. Consequently,it must be our position that the only acceptable way todeal with fugitive war criminals is through orderlyprocesses of international law and extradition."

8t Wechsler, supra note 74, at 103, has complainedthat trial in Israel has "an obvious vindictive aspect."See also ROGAT, TnsE EIcHmr A- TIAL ANm =r RuLEor LAW 41 (1961): "[Israel's] decision that she aloneshould try Eiclmann for crime against Jews rather thanhaving an international tribunal try him for crimesagainst human beings is precisely the kind of decisionthat retards efforts to apply the rule of law to theinternational community."

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NICHOLAS N. KITTRIE

national community in the past to adopt aninternational criminal code and to establish aninternational criminal tribunal must not, indeed,deter individual nations from adopting and reason-ably expanding their own internal legal principles,derived from what is already generally acknowl-edged among nations. Israel's reliance upon theprinciple of Nuremberg and the Genocide Con-vention as authority for its own law may serve as aprime example of a healthy cross influence betweennational and international law. As the observer forthe International Commission of Jurists clearlypointed out:

"The Eichmann trial is an illustration of inter-national penal justice. This justice, which is stillin the first phases of its development, or whatis often called a 'primitive' state, is adminis-tered mainly by states. A state fulfills this taskby applying international law either directly orthrough its body of laws."'

Critics of Nuremberg have argued, and the sameargument could be repeated in the Eichmann case,that:

"Before one may expect the creation of an inter-national criminal law as enunciated at Nurem-berg it will first be necessary to accept, and topractice without crippling reservations, theprinciple of compulsory jurisdiction of an inter-national court or agency over States in all theirdisputes even though these disputes may beclaimed to be political in character."'nPleas for an international criminal code and an

international criminal tribunal will continue to bemade. Whether the code or tribunal should comefirst is already subject to disagreement. In responseto the claim that without an international criminalcode, "real progress in international law andsecurity is impossible," the assertion is made that"in many cases international criminal law canachieve nothing unless there be an international

2 Papadatos, The Eichmann Trial, Bull. Int'l Comm.of Jurists 13 (no. 14, Oct. 1962).

13 Schick, supra note 77, at 305.

court to apply it."' ' Furthermore, the precedentof the World Court may indicate that internationalaccord could more easily be obtained for the estab-lishment of an international criminal tribunal thanfor the enactment of a comprehensive internationalcriminal code.

The defects in the Eichmann case, it is hoped,may possibly serve to stress again the need for apermanent international criminal tribunal.85 TheEichmann case, indeed, furnished an opportunityfor the establishment of an ad hoc tribunal in theNuremberg tradition, but the opportunity was notseized. It is obvious that the only constant meansfor preventing future misuse of international lawwill be through the constitution of such an inter-national tribunal, to act within the confines of thebest international judicial traditions, and to super-vise the healthy development of an international"criminal" rather than "political" internationallaw. This obviously has not come to pass as yet.In the interim, it is quite likely that the historicalfacts may tend to justify the position of JusticeJackson that we cannot await a perfect interna-tional tribunal or legislature, 8 and that inter-national law must develop, as did the common law,through custom, agreement, and judicial prece-

dent, such as the Nuremberg and Eichmann trialsthemselves--despite their defects-were intendedto provide.

84 Pella, supra note 43, at 68.86 Even those who challenged Israel's jurisdiction to

try Eichmann have stressed "that many of the criticismsconcerning the jurisdiction of the tribunal in theEicmann case could have been avoided through theinstitution of an international trial." See Woetzel, TheEichmann Case in Internaional Law, 1962 CRM. L.REv. 671, 681 (1962).86 Report of Robert H. Jackson to the President, inTrial of War Criminals, Document, U.S. Dept. ofState, Pub. 2420, p. 9 (1945). See also observation ofHenry L. Stimson that international law is "not abody of authoritative codes or statutes; it is the gradualexpression, case by case, of the moral judgments of thecivilized world." Stimson, The Nuremberg Trial: ALandmark in Law, 25 FoRE IGN A.nrsns 179, 189(1947).

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