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In Re Eichmann: A Dilemma of Law and Morality

  • Helen Silving (a1)
Extract

Ours is an age of paradox. In science we are daily reaching ever greater achievements, overcoming time and space “and now nothing will be restrained from [us], which [we] have imagined to do.” We are literally reaching “unto Heaven.” These achievements in science are in large measure due to our ability to free ourselves of attachment to concrete “thinghood” and to advance toward ever greater abstraction. By contrast, in the humanities, in ethics, and in law, we are still deeply ingrained in a world of “things,” of the concrete and tangible, although a tendency toward abandonment of this orientation is increasingly noticeable. Personality values not tied to external, visible and tangible objects are emerging very slowly. In international law this process lags behind that observable in national legislation. Thus, for example, while spying on another state in the course of an authorized stay therein is widely practiced, there is deep resentment when the wrong consists in a wrongful “touching” of the territory of another state, for this violates “sovereignty” in an “immediate” rather than “consequential” manner, “sovereignty” being apparently conceived of as a physical entity rather than as the realm of a people’s privacy. This is reminiscent of early legal notions, such as the view that an action of trespass will lie only when there has been some direct physical contact, however slight, of the defendant with the body or property of the plaintiff, a view clearly rooted in belief in the magic of touching. A similarly “thinghood-bound” conception of international law is reflected in the recent United Nations Security Council resolution censuring Israel for the capture of Eichmann.

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1 Genesis 11, 6, 4.

2 “The higher is the degree of abstraction of a science, the deeper that science penetrates into the nature of reality.” Schlick, , Grundzüge der Naturphilosophie 4 (posthumous ed., edited by Hollitscher, and Rauscher, , 1948).

3 See the Case of the Soviet Union against the United States before the United Nations Security Council, upon the complaint of the Soviet Union of May 18, 1960 (U.N. Docs. S/4314, S/4315), demanding censure of the United States for incursion of a U-2 aircraft into Soviet air territory; debated in U.N. Security Couneil Meetings, May 23-26, 1960, U.N. Security Council, 15th Year, Official Records, 857th-860th Meetings (U.N. Docs. S/P.V. 857-860).

ProfessorWright, Quincy, “Legal Aspects of the U-2 Incident,” 54 A.J.I.L. 836 at 849-850 (1960), characterizes espionage in peace time as an “illegitimate enterprise,” since it manifests “a lack of respect for foreign territory.” But the author indicates that the sanction in such instances is but a lack of standing to protect the spy and that hardly any remedy lies when all states are engaging in espionage. Quite clearly not more than verbal recognition is given to the so-called “rule” making espionage an international law offense. Notice particularly the distinction drawn by Sir Claude Corea, speaking for Ceylon in the U.N. Security Council Meeting of May 25, 1960, between espionage and invasion of the principle of “sovereign right of a State to the integrity of the air space above its territory” (U.N. Doc. S/P.V. 859, pars. 53, 54) :

“Espionage has, as has already been pointed out, existed for centuries and will continue as long as human frailties continue and as long as States suspect each other, fear each other and seek to dominate each other. But espionage is carried out in secret, in darkness, shunning publicity as if it were ashamed of its own ugliness. We suppose it is considered necessary in the civilized society of today, although the act itself is demoralizing and degrading. . . .

“... We cannot overlook the fact that, however much it may be necessary for purposes of defence, espionage involves a violation of international law and practice and amounts to an attack against the sovereign rights of States, when it violates, say, for instance, the air space of any State.”

4 “... if a man throws a log into the highway, and in that act hits me, I may maintain trespass, because it is an immediate wrong; but if as it lies there I tumble over it, and receive an injury, I must bring an action upon the case ; because it is only prejudicial in consequence, for which originally I could have no action at all.” Fortescue, J., quoted in Reynolds v. Clarke, 1 Stra. 634, 93 Eng. Rep. 747 (K.B., 1726).

5 The case is cited and summarized below, Part I. The censure of Israel was a sanction imposed upon Israel for capture upon the territory of Argentina of the murderer of 6,000,000 Jews under the Nazi regime.

6 Calm, The Sense of Injustice (1949). This emotion is considerably more powerful and “law-creative” than is the much exploited so-called “sense of justice.”

7 The “theft of food” (Mundraub) was punished more mildly than ordinary theft in many older laws. It has been defined as misappropriation of “field or garden fruits or other victuals or beverages for the purpose of satisfying an instantaneous lust,” if the value of the misappropriated thing did not exceed a certain sum. The present Swiss Federal Penal Code of 1937, Art. 138, Subdiv. 2, authorizes the judge to forego punishment where the actor has stolen a thing of small value from “need.” Subdiv. 1 of the same article, which grants mitigation also to one stealing from “frivolousness or for the purpose of satisfying a lust, “has been interpreted by the Federal Tribunal to apply to a self-educated writer who could not resist stealing a book on Erasmus of Botterdam, the Tribunal holding that “the differentiation . . . between lusts ‘that are determined by the intellect ‘ and lusts ‘that are determined by urges’ is not functional. “Urges,” said the Tribunal, “are also active in the field of the intellect. They may be as strong as material urges and justify the same indulgence toward the actor as do the latter.” Degner gegen Staatsanwaltschaft des Kantons Zurich, decided by the Federal Tribunal on Jan. 26, 1945, BGE 71 IV 4. This case throws an interesting light on the theme of this paper.

8 Throughout this paper, ideas, concepts and rules of national laws will be freely used. The main reason for such use of national patterns lies in the fact, easily proven by reference to the terminology and general jurisprudential “atmosphere” of decisions of international adjudicating agencies, that international law does not possess an autonomous terminology and methodology. The ideas and vocabulary in this field are predominantly derived from the national reservoirs of countries of civil-law and common-law tradition. Moreover, national laws are in many respects less ritualistic and more oriented to substantive values than is international law. Thus, principles developed by national laws may serve as patterns of international law refinement. In no event should this approach be taken to imply advocacy of a simple wholesale incorporation by international law of national law principles. The ideas developed by certain legal systems, particularly the German one, in which exceptional circumstances produced by the strange legal situation that followed the collapse of the National Socialist regime called for jurisprudential inventiveness in reconciling positivism with minimum natural-law demands, are advocated on the strength of their historical necessity, logical persuasiveness or policy merits.

9 See Trial of the Major War Criminals before the International Military Tribunal, Official Documents, Judgment, Vol. I, pp. 250, 252 ; and Final Statement by Mr. Justice Robert H. Jackson, Chief of Counsel for the United States, Vol. XIX, p. 405.

10 See testimony by Dieter Wisliceny, ibid., Vol. II, pp. 355 ff. at 371.

11 U.N. Security Council, 15th Year, Official Records, 865th-868th Meetings, June 22-23, 1960, Docs. S/P.V. 865-868; see also Report of the Security Council to the General Assembly July 16, 1959-July 15, 1960, U.N. General Assembly, 15th Sess., Official Records, Supp. No. 2 (A/4494), citing U.N. documents pertinent to the case. On Eichmann’s rôle in the Nazi program of destruction of the Jewish “race,” see statement of Mrs. Golda Meir, representing Israel in the Security Council debate on June 22, 1960, U.N. Doc. S/P.V. 866, pars. 22-38. On the activities of the “Dienststelle Eichmann,” see Zeiger, The Case Against Adolf Eichmann (The New American Library, 1960), reproducing documents.

12 Mrs. Meir ‘s speech during the Security Council meeting of June 22, 1960, U.N. Doc. S/P.V. 866, par. 19.

13 U.N. Doc. S/P.V. 865, par. 42. The Spanish version reads thus: “Una brecha, una sola brecha que se abra en el ordenamiento jurídico y toda la armazón se derrumba.” Extracts from Dr. Amadeo’s speech in behalf of Argentina, in 14 Revista de las Naciones Unidas 36-37 (Num. 301, August, 1960). It is impossible to translate the “jurisprudential atmosphere” of this statement. Its connotation in Spanish is much stronger than in the English translation.

14 U.N. Doc. S/4349 ; for Spanish version see Revista de las Naciones Unidas, note 13, above, p. 17.

15 “Considerando” corresponds to the French “vu que.” French and Spanish decisions, in contrast to German and Italian ones, contain a very brief statement of the grounds upon which the judgment is based, setting forth that which the adjudicating agency has taken into consideration in arriving at the decision.

16 See U.N. Docs. S/P.V. 867, pars. 4-6; S/P.V. 868, pars. 30-31, 35-37, 42, 48-50, 67.

17 See, e.g., New York Times editorial of June 26, 1960, p. E 9.

18 See text of Note and Explanatory Memorandum presented by Argentina to the Security Council on June 15, 1960, in U.N. Doc. S/4336, reprinted in La Prensa, Buenos Aires, June 16, 1960, p. 16.

19 Argentina’s representative, Dr. Mario Amadeo, made the following statement in the U.N. Security Council debate of June 22, 1960 (see Doc. S/P.V. 865, par. 26): “ I leave it to each of you to decide what weight is to be attached to the letter attributed to Eichmann giving his consent, and I cannot forbear from expressing my regret that such a document should have been included in a diplomatic note.” It is irrelevant whether a document of such nature may be taken as proof of consent, for Argentina did not deny that Eichmann left voluntarily; thus, “forceful” removal of Eichmann from Argentina was not in issue.

20 On the frequency of utterly irrational confessions, see Hans Gross, Criminal Psychology 32-33 (trans. Kallen), in The Modern Criminal Science Series (1918).

21 See “Cómo y Dónde Habría Sido Aprehendido el Jefe de la Represión Antijudía,” La Prensa, Buenos Aires, May 27, 1960. The signed photograph allegedly helped to trace Eichmann.

22 Dr. Amadeo cites Professor Hambro’s opinion “that if Israel agents in fact seized Eichmann in Argentina, their action was in itself a violation of international law, since such a thing cannot be done without the consent of the other State.” (Doc. S/P.V. 865, par. 26.) But how can this statement be taken to support Mr. Amadeo’s contention, implied in the context in which the statement is used, that the same applies if the “abductors” were private citizens and not “Israeli agents.”

23 2 Moore, Digest of International Law §212, pp. 382-389 (1906), under the title “Breaches by Private Persons,” cites only one authority which so holds: Wirt, Att. Gen., Sept. 27, 1882, 1 Op. 566, 569.

24 “If two of the King’s subjects go over into a foreign realm and fight there, and the one kill the other, this murder being done out of the realm, can not be for want of trial heard and determined by the common law.” 3 Coke, Inst. 48 (1628). See State v. Knight, 1799, Superior Court of North Carolina, Taylor 65, for rationale of the rule. For recent authority, see Commonwealth v. Lanoue, 326 Mass. 559, 95 N.E. 2d 925 (1950); Wharton’s Criminal Law, $ 310 (12th ed., 1932). Compare also U. S. ex rel. Toth v. Quarles, 350 U. S. 11 (1955).

25 See Mr. Amadeo ‘s statement before the Security Council on June 22, 1960, Doc. S/P.V. 865, pp. 12 f., par. 25. Argentina also contended that Israel had committed a violation of Argentine sovereignty by subsequent praise of the captors or by approval of their conduct. See Argentina’s note to Israel of June 8, par. 4, transmitted to the Security Council with Doc. S/4334, reprinted in La Nación, Buenos Aires, June 9, 1960. It may be pertinent to note that such “approval,” if any, was provoked by Argentina. Israeli Government agencies had originally consistently avoided disclosure of the place and the circumstances of the “capture.” See La Prensa, Buenos Aires, May 27, I960, reporting a United Press report from Jerusalem of May 26, 1960; and ibid., May 28, 1960, page 3. Only after Argentina addressed an official “inquiry” to Israel, did the latter acknowledge the fact of Eichmann’s prior presence in Argentina, stressing the fact that cognizance on the part of the Israeli Government of such prior presence was acquired in the course of an investigation prompted by Argentina’s inquiry. See Israeli note of June 3, 1960, in response to that inquiry. For text of the note see Doc. S/4342, reprinted in La Nación, Buenos Aires, June 7, 1960, p. 3.

26 Frisbie v. Collins, 342 U. S. 519 (1952).

27 Ker v. Illinois, 119 U. S. 436 (1886), where the abduction was committed in Peru by a government agent, in violation of a treaty between that country and the United States. Ibid. 443-444.

28 Frisbie v. Collins, cited note 26 above, at 522. In this case also the abduction was committed by government agents. For an English authority to the same effect, see Ex parte Elliott, [1949] 1 All E.R. 373.

29 For authorities to this effect, see Harvard Research in International Law, Jurisdiction with Respect to Crime, 29 A.J.I.L. Supp. 435, at 628 (1935).

30 For authorities, see 1 Hyde, International Law Chiefly as Interpreted and Applied by the United States 730 (2d rev. ed., 1945).

31 Dickinson, , “Jurisdiction Following Seizure or Arrest in Violation of International Law,” 28 A.J.I.L. 231, note 1, 234-237, 244-245 (1934), in which the author states (at p. 244) : “The court is an arm of the nation and its jurisdiction can rise no higher . . . than the jurisdiction of the nation which it represents. If there was no jurisdiction in the nation to make the original seizure or arrest, there should be no jurisdiction in the court to subject to the nation’s laws.” For the same position see Harvard Research in International Law, cited note 29 above, at 623-624. But see comment to Art. 16 of the Harvard Draft Convention, which excludes such jurisdiction, where it is said: “it is frankly conceded that the present article is in part of the nature of legislation.” Ibid. at 624.

One might argue that, however irrational may be the co-existence of a state’s jurisdiction over an abductee with its responsibility for the abduction on an international level, such co-existence represents the law in force, and that thus, as regards Israel’s responsibility for the abduction, the cases referred to above are no authority. But the fact is that for such responsibility for the acts of private abductors there is hardly any authority at international law. Compare note 23 above. Even in those cases in which a state’s responsibility was recognized for abduction committed by government agents, there were present certain additional circumstances which distinguish these cases from the Eichmann case. Thus, in the Colunje case, reported in 2 Hackworth, Digest of International Law 313 (1941), the abductee was a citizen of the claimant state. Other cases cited in Hackworth, op. cit. 313-315, involving acts of jurisdiction in a foreign territory, present the distinctive feature of regularity of the acts in issue. Notice also that states do not rigidly adhere to the principle of impregnability of their territorial sovereignty. See ibid. 317-318.

Where the abduction is committed by a private person, there is precedent for refusal of the state to which the abductee is brought to assume responsibility vis-a-vis the state from which he was abducted. Thus, in the case of Constance Madeline His, reported in Moore, cited note 23 above, at 384-389, Switzerland refused to give the United States any satisfaction for abduction from the United States of a minor under claim of exercise of parental authority. To be sure, there is a difference between exercise of parental power and acts preparatory to assumption of criminal jurisdiction (though in the Eichmann case, the private individuals concerned did not exercise any criminal jurisdiction at all, and any connection between such jurisdiction and the abduction is entirely a matter of inference from their “motive” ). But a sovereign’s interest in the custody of a minor is perhaps as weighty as its interest in criminal matters. Notice that in this case the claim was raised by the United States in the capacity of a sovereign and not in behalf of the mother from whose custody the child was abducted, and that this character of the claim was emphasized in the case.

It may be interesting to note that Dr. Amadeo cites this case in support of the proposition advanced by him that “(t)he State must punish and make reparation for violations of territorial sovereignty committed by its nationals abroad, even if they were acting for private reasons.” U.N. Doc. S/P.V. 865, par. 24. The fact is that Switzerland in this case kept both the “abductor” and the “abducted child,” the Swiss Federal Council holding that, since judicial tribunals of Switzerland of competent jurisdiction ruled that the father was entitled to custody (notice that at the time of the abduction the case had not been decided and that under a prior decision the mother was entitled to custody), he “ had never been deprived of his paternal power or authority and that it was no invasion of the territorial sovereignty of the United States for him in the exercise of that paternal power to take charge of his child wherever he might find her.” Moore, op. cit. above, p. 389. Dr. Amadeo, of course, when citing the His case as authority for the position taken by him, follows the civil-law method of relying on a detached statement of the deciding authority rather than on what that authority “holds” or “does.” The Swiss Federal Council “repudiated very emphatically any intention to deny or question the sovereignty or jurisdiction of the United States over its territory.” Moore, ibid. Of course, Israel in the Eichmann case had just as emphatically “repudiated . . . any intention to deny or question the sovereignty or jurisdiction of Argentina over her territory.” The use made in Argentina’s argument of the His case, as contrasted with the import of that case in the light of American jurisprudence, is most instructive as bearing on a divergence of views as to what constitutes “authority” for purposes of international law.

32 See U.N. Doc. S/P.V. 865, par. 23.

33 For text of the Israeli note of June 3, 1960, see U.N. Doc. S/4342, par. 8, reprinted in La Nación, Buenos Aires, June 7, 1960, p. 3. For Argentina’s reply of June 8, 1960, see U.N. Doc. S/4334, and La Nación, June 9, 1960.

34 Par. 8 of the note.

35 U.N. Doc. S/P.V. 865, par. 23.

36 It may be instructive to notice briefly several other dubious aspects of Argentina ‘s position, although as regards these she found no favor with the Council. Argentina contended that, having actually or constructively “abducted” Eichmann, Israel must “restore” him to Argentina. Doc. S/P.V. 865, par. 12. According to the Harvard Research in International Law, Jurisdiction with Respect to Crime, note 31 above, the purpose of such sanction is to assure that abduction will not pay. This in substance is the rationale of the doctrine known in this country under the colorful name “fruit of the poisonous tree.” This doctrine renders inadmissible in evidence things acquired by an illegal act, e.g., an unlawful search and seizure, and demands that such things be restored to the owner, unless they are contraband. The “fruit of the poisonous tree” doctrine has been recently reasserted by the U. S. Supreme Court in Elkins v. U. S., 364 U. S. 206 (1960). However, this doctrine applies only to conduct of government agents and not to that of private persons. A policy of requiring restoration of the abductee in instances of abduction by private persons might result in a practice of private justice rather than in deterrence. Notice also that the “poisonous fruit” doctrine does not apply to “illegal abduction” cases. It has never been alleged that Ker must be “restored” to Peru or that Collins ought to be “restored” to Illinois. See notes 26 and 27 above. And compare the case of Antonio Martinez (1905), in which such claim was rejected by the United States on the authority of Ker v. Illinois. Haekworth, op. cit. at 321. One might question the distinction between “jurisdiction” over property and that over persons, where control has been secured by illegal methods. But since the distinction is generally applied, there is no reason to question its applicability in a case such as that of Eichmann. On the other hand, “restoration,” when it involves a person rather than property, would seem to be justifiable only in cases where the claimant state has an interest in that person. “Restoration” as a form of “reparation” is most dubious. Argentina charged Israel with violation of her “sovereignty” rights, not with deprivation of Eichmann ‘s consortium, in which she disclaimed any interest. See par. 3 of Explanatory Memorandum transmitted to the Security Council with letter of June 15, 1960, U.N. Doc. S/4336, reprinted in La Prensa, Buenos Aires, June 16, 1960, p. 16. Quite clearly, Israel could not “undo” the wrong committed by exercising a sovereignty function upon Argentine territory by “restoring” Eichmann. The claim for “restoration” as a form of “reparation” rather reflects transfer into international law of the principle of property law, whereby anyone who has brought about by force a change of situation, particularly in the sphere of possessory rights, must first re-establish the status quo ante. Since possession of a thing puts the party concerned in a privileged position—it being, as the proverb says, “nine points of the law”—such restoration actually re-establishes that status of privilege. But what privilege would Argentina reacquire by repossessing herself of Eichmann, unless she actually had an interest in protecting him? The notion of “reparation” in the form of “restoration” in this instance reflects the “thinghood” orientation of international law, to which reference was made above.

Argentina also claimed that Israel must punish the “volunteers.” As regards this claim, it may be sufficient to refer to the text of this article, at notes 23 and 24.

37 The translation in the text is that of the author. The English translation cited in note 13 above, U.N. Doc. S/P.V. 865, par. 42, reads in pertinent part: “Eight does not always coincide with the feelings of the multitude; in many cases it is unpopular. Because of its very fragility it is essential that every precaution be taken to protect it. Nor is it possible to accept a violation of the law on the ground that the circumstances are exceptional.”

38 Note 12 above.

39 See New York Times editorial, cited note 17 above.

40 See text above, at note 14.

41 See U.N. Doc. S/P.V. 866, par. 43.

42 For authorities admitting the defense of necessity, see The American Law Institute Model Penal Code, Tentative Draft No. 8, pp. 6 and 7, note 2, May 9, 1958. The Draft defines “necessity” thus: “Conduct which the actor believes to be necessary to avoid an evil to himself or to another is justifiable, provided that (a) the evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged. ...” Sec. 3.02(1), ibid., p. 5. Reference to this provision should not be taken as approval by this writer of the scope of the defense as thus defined.

43 Whitehead, Symbolism, Its Meaning and Effect 7 (1927).

44 Mr. Justice Frankfurter, dissenting in U. S. v. L. A. Tucker Truck Lines, 344 U. S. 33, 39 (1952).

45 For example, while territorial jurisdiction is an attribute of sovereignty, “ (t)he territoriality of criminal law ... is not an absolute principle of international law and by no means coincides with territorial sovereignty.” S. S. Lotus, P.C.I.J., Ser. A, No. 10, 20 (1927). Compare also ibid. 23, 30, 31. It is generally accepted that a state must not exercise “jurisdiction” within the territory of another state. But when a state enacts rules that are to govern conduct within another state and punishes violators of such rules as soon as these violators are caught within the territory of the legislating state, the latter exercises substantive “jurisdiction” which may be said to affect the “sovereignty” of the state of the locus delicti commissi. The question of the permissible scope of such legislative jurisdiction of one state over the territory of another or of the extent to which territorial jurisdiction may deviate from territorial sovereignty has not been uniformly answered in time or in space. As stated by Kunz, , “The Nottebohm Judgment,” 54 A.J.I.L. 536, at 545 (1960), “ (s)overeignty is . . . essentially a relative notion; its content depends on the stage of development in international law.” The meaning of “sovereignty” also depends on context. On this see Silving, “In the Nature of a Compact: A Note on Statutory Interpretation,” 20 Eevista del Colegio de Abogados de Puerto Rico 159, at 163-165 (1960).

46 Art. 232, Código Penal de la Argentina (1921). This provision applies generally to “crimes against public authority and the constitutional system” (delitos contra los poderes públicos y el orden constitucional). Book II, Title X, of the Code, in 1 Códigos penales Iberoamericanos según los textos oficiales 421 (ed. by Jiménez de Asúa and Carsi Zacarés, 1946).

47 “No freeman shall be taken and imprisoned or diseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers and by the law of the land.” 39th Article of the Magna Charta. This provision may well have its origin in the rule of Mosaic law “that the man-slayer die not, until he stand trial before the congregation.” Num. 35, 12; Joshua 20, 9.

48 Thus, e.g., Art. 101, subdiv. I, of the Constitution of the Federal Republic of Germany provides: “Exceptional courts are inadmissible. No one may be withdrawn from his lawful judge.” This is interpreted to bar courts assigned after commission of the crime from trying such crime. See Kleinkneeht, Muller, Eeitberger, Kommentar zur Strafprozessordnung und zum Gerichtsverfassungsgesetz, Preliminary comment to Sec. 1, at p. 82 (3d ed., 1954).

49 It will be later shown that Israel possesses jurisdiction over Eichmann and his crimes. At present, the sole concern is with the type of interest which Argentina possessed or asserted in the Eichmann case.

50 True, Argentina referred to the fact that the Genocide Convention, which was approved by the General Assembly of the United Nations in December, 1948, and of which both Argentina and Israel are signatories, provides for the crime of genocide being tried either by a court of the country in which the crime was committed or by an international tribunal. Note of Argentina to Israel of June 8, 1960, U.N. Doc. S/4334, p. 4, par. 7. But at no time has Argentina asserted protection of the man Eichmann. She rather stressed her exclusive jurisdiction over persons and things within her territory. See ibid., p. 3, par. 4.

51 See Explanatory Memorandum transmitted to the Security Council with letter of June 15, 1960, penultimate paragraph, U.N. Doc. S/4336, p. 3, reprinted in La Prensa, Buenos Aires, June 16, 1960, p. 16.

52 U.N. Doc. S/P.V. 865, par. 28, statement by Mr. Amadeo. As stated by Torres Gigena, Asilo diplomàtico 24 (1960), to constitute “asylum” it is not sufficient that a person “take refuge in a country and become integrated in its life as an inhabitant.” It is rather necessary that the authorities of the state confer upon him the protection of asylum. This is done either by denial of extradition or by an official declaration of grant of asylum.

Countries which were formerly Spanish colonies “inherited” from Spain a strong emotional attachment to the tradition of “asylum.” See 2 Moore, Digest 781. The “convulsive form” of the establishment of the new Latin American states greatly contributed to the development of this institution. Torres Gigena, op. cit. 28. The emotional response to this institution is the source of the tendency to extend the meaning of the symbol “asylum” to objects of reference other than the object originally designated by it. See on this phenomenon, Silving, “From the Sublime to the Bidiculous: A Study in Legal Symbolism,” 30 Tulane Law Kev. 269, at 269-272 (1956). The “sacredness” of “asylum” is projected on other forms of abode within a country.

53 See U.N. Doc. S/P.V. 865, par. 28. Of course, Argentina also expressly stated that she “has not protested against violation of the general rules governing territorial asylum or of the existing conventions for the protection of political refugees.” Ibid.

54 Declaration of the Allied Powers of Oct. 30, 1943, unanimously approved by the Inter-American Conference on Problems of Peace and War, held in Mexico in March, 1945, cited by the representative of the Soviet Union in the Security Council debate. See Doc. S/P.V. 866, pars. 56-59.

55 Charles V, in recognizing diplomatic asylum in embassies, emphasized that the houses of ambassadors must serve as “inviolable asylums, as did once the temples of the gods.” 1 Rousset, Le Cérémonial diplomatique du Droit de gens 481, Supp. IV to Dumont, Corps universel diplomatique. On sanctuary practices, see particularly Cox, The Sanctuaries and Sanctuary Seekers of Mediaeval England (1911) ; also article “Sanctuary,” in Encyclopaedia Britannica (1961 ed.). The immunity afforded by sanctuary operated mostly by projection of the sacredness of sanctuary sites, such as temples, altars or churches, upon the fugitive. Such projection of territorial attributes is also noticeable in the present concept of asylum, as interpreted by some writers, and was for a long time the basis of diplomatic asylum. Thus, the Argentinian writer, Torres Gigena, op. cit. note 52 above, at p. 24, says :

“The legal principle which explains and supports territorial asylum is the normal application of the natural jurisdiction of states over their own territories and inhabitants and their exclusive right to organize and administer justice therein. ... In my opinion, the right of territorial asylum does not possess a foundation of its own. It is simply an exercise of the jurisdictional right of the states. ...”

The same writer explains (op. cit. 28) that diplomatic asylum was once based on the concept of “extraterritoriality” of the embassies and has been viewed as a simple immunity of the latter only since the extraterritoriality concept became obsolescent. As in the original “sanctuary” concept, so in the contemporary concept of “asylum” the “thinghood” element predominates. The human aspect is treated as secondary. See particularly, García-Mora, International Law and Asylum as a Human Right (1956).

56 Exemptions from cruel treatment or execution without trial were achieved by a process of bargaining between ecclesiastical and secular authorities.

57 Schwarzenberger, International Law 185, 572 (3d ed., 1957).

58 See on this, American Law Institute Model Penal Code, Tentative Draft No. 4, Section 2.01(1) at p. 11 and comments at pp. 121-122 (April 25, 1955).

59 This is not the only rationale of self-defense, as will be more fully shown below.

60 In our law such privileges are intended exclusively to benefit the accused ; hence, they may be waived by him. But in civil-law countries they are granted primarily in order to spare the witness a conflict of conscience and in order to protect various social ties of the witness, such as his marriage, kinship, professional relationships. On this see Vetter, Probleme des Zeugnisverweigerungsrechtes (1954), presenting the Swiss approach, which is most liberal, in stressing protection of the witness as against state interests. As regards German law, see, particularly, decision of the Bundesgerichtshof of Jan. 12, 1956 (III. Strafsenat), reported in 9 Neue Juristische Wochenschrift 599 . (1956) ; also Kleinknecht, Müller, Eeitberger, op. cit. note 48 above, comment to § 52, at p. 239 (“The right to refuse testimony is a personality right of the witness.”). As to Spanish law, which grants witnesses privileges except where the crime is one of extreme gravity, i.e., attempt on the security of the state, public peace or the person of the Chief of State (Arts. 416, 418, Ley de Enjuiciamiento Criminal of Feb. 11, 1881), see Feneeh, Derecho Procesal Penal 806, 822 (2d ed., 1952). In the Federal Code of Criminal Procedure of Argentina (Código de Procedimientos en lo Criminal para la Justicia Federal y los Tribunales de la Capital y Territorios Nacionales, Ley No. 2372, Oct. 17, 1888, in Código de Procedimientos en lo Criminal, in Códigos y Leyes Usuales de la República Argentina (new ed., 1931), certain persons are not admitted to testimony in the interest of maintenance of professional secrecy (Art. 275, I° to 5°), and relatives of the accused cannot be called as witnesses (Art. 278).

61 Arts. 278, 279, Penal Code, note 46 above.

62 For a summary of the pertinent older German cases published in Argentina, see de Asúa, Jiménez, “La ‘no exigibilidad de otra conducta,’” in 2 El Criminalista 321 (2d ed., Buenos Aires, 1950) ; also La Ley y el Delito 441-445 (2d ed., 1954).

63 6 Entscheidungen des Bundesgerichtshofs in Strafsachen (hereinafter cited B.G.H.St.) 46 (1954). The court held that, though a mother, by failing to prevent her minor daughter from continuing a sex relationship with the latter’s fiancé, had technically committed the crime of “pandering,” she could not be held responsible, since under the circumstances—the daughter’s pregnancy, danger of frustrating her marriage chances, social implications if authorities were called to help—obedience to law in fairness could not be demanded of the accused.

64 For a discussion of these cases see Jiménez de Asúa, “La ‘no exigibilidad de otra conducta,’ ” loc. cit. note 62 above.

65 Ibid. The facts were as follows : A taxi driver, carrying a cabinet member to the Government mansion where the Minister’s immediate presence was “indispensable,” was stopped by a road block. Acting under the Minister’s order, the driver drove the car contrary to traffic laws, thereby injuring a pedestrian. Though the Minister lacked authority to issue an order to the driver, it was believed not to be “exigible” from the latter that he disobey such order under the circumstances. On appeal, reversed. Discussion of the “non-exigibility” aspect of this case is the principal theme of Jiménez de Asúa’s above-cited essay.

66 Ibid, at 336. The principle of “inexigibility” is highly controversial, even in the country of its origin, Germany, though the courts recognize it. See Maurach, Deutsches Strafrecht, Allgemeiner Teil 304-305 (2d ed., 1958) ; Schoenke, Strafgesetzbuch, Kommentar 218 (7th ed., Schroeder, 1954), opposing the principle. However, it should be noted that national laws afford in most situations of “inexigibility” also other more specific defenses.

67 Dr. Amadeo in his speech before the Security Council on June 22, 1960, stressed that “if each State considered itself entitled, whenever it so desired, to . . . take justice into its own hands, international law would very soon be replaced by the law of the jungle.” U.N. Doc. S/P.V. 865, par. 34.

68 For an excellent summary of philosophical and juristic views on the bases of self-defense, see 1 Quintano Ripollés, Comentarios al Código Penal 90-95 (1946) ; for Argentina, see Jiménez de Asúa, El Código Penal Argentino 437-438 (2d ed., 1943) ; for a comparative study see Estudio de Legislación comparada, introducing Jiménez de Asúa and Carsi Zecarés, Códigos penales Iberoamericanos 254, cited note 46 above.

69 Among the cases cited by Jiménez de Asua in “La ‘no exigibilidad de otra conducta,’” loc. cit. note 62 above, there is a Spanish one which involves a problem of some magnitude: that of the insurgent Catalan government. In that case the prosecution conceded the validity in principle of the notion of “inexigibility,” but denied its applicability to the case in issue.

70 Esther 3, 8. There is no need in this context to identify the group ‘s cultural distinctiveness. The fact is that it has been persecuted as “distinctive.”

71 German Jews were deemed German “nationals” for all purposes in which this status was detrimental to them, but for none of the purposes in which such status could be favorable to them. They were specifically deprived of “citizenship.” And yet such status as “nationals” of Germany was a bar to intervention of foreign countries in their behalf. Moreover, other countries often recognized them as German nationals, and this mostly worked to their detriment. On this see Silving, , “Nationality in Comparative Law,” 5 A. J. Comp. Law 410, at 418-419, and note 37.

72 Indeed, perhaps the source of the animosity against Jews, especially in the case of the Nazis who undertook to defy moral laws, has been the belief that Jews have originated moral laws. Notice Eichmann’s statement (Eichmaim’s Own Story: Part II, in Life, Dec. 5, 1960, p. 146, at 161) : “It is very depressing for me to think of that people writing laws over 6,000 years of written history.” By exterminating the Jewish people, the Nazis symbolically killed their own consciences.

73 Prime Minister Ben-Gurion stated (Tel Aviv, May 27, 1960, see La Prensa, Buenos Aires, May 28, 1960): “In my opinion, the significance of Eichmann’s capture and of his trial in Israel consists in affording a possibility of revealing before an Israeli tribunal the entire process of the murder of Jews by the Nazis, so that Israeli youth learn the facts and remember them.”

74 The Bible, of course, is not a formal source of international law. But many legal provisions of members of the international community are derived from the Bible. Biblical influence is particularly noticeable in French law. Thus, the French Penal Code (1810) uses the test of “lying in wait” (guet-apens) in the definition of murder (see Arts. 296, 298). Compare Deuteronomy 19, 11. Perjury is punishable by imprisonment when committed in a case concerning a major crime (Art. 361, par. 1, ibid.), but if the person accused of crime was sentenced to a more severe punishment, the false witness is subject to the same punishment (Art. 361, par. 2, ibid.). Compare also Art. 362, par. 2, ibid. This follows the Biblical rule which imposes upon the false witness such penalty “as he purported to do unto his brother.” Deuteronomy 19, 19. In our law, the two-witness rule in treason is a classic example of Biblical influence.

75 Esther 3, 6, 12.

76 Esther 3, 11.

77 Esther 8, 8, 9-11.

78 Esther 5, 14; 7, 10.

79 On the conflicting positions as regards the problem of jurisdiction of a state to punish aliens for crimes committed against its nationals abroad, see Bishop, International Law, Cases and Materials 358-364 (1953) ; cf. also Briggs, , The Law of Nations 577 (2d ed., 1952). In Harvard Research in International Law, Jurisdiction with Respect to Crime, note 29 above, at 578-579, the view is indeed expressed that the passive personality principle is less justifiable than the universality principle and that, to the extent that the former may be supported, its purposes are equally well served by the latter. But the universality principle can hardly resolve conflicting claims to jurisdiction or indeed support any claim to jurisdiction not based upon custody of the defendant. The contention advanced in the present paper is that Israel’s claim to try Eichmann takes precedence over jurisdictional claims of any other state.

80 The objections stated in the following paragraphs have been raised by Mr. Telford Taylor, “Large Questions in the Eichmann Case,” New York Times Magazine, Jan. 22, 1961, pp. 11, 22, 23 and 25. The passages in quotes are taken from this article.

81 Esther 4, 14. The translation in the text is that of the author. In a moving booklet entitled “Guilt” (Die Schuld), Karl Jaspers expressed the view that the responsibility of the German people for the crimes committed by the Nazi regime consists in a failure to come to the rescue of persecuted Jews. In the author’s opinion, keeping silent when injustice is done to one’s neighbor is complicity in such injustice.

82 Ferguson v. Moore, 98 Tenu. 342, 343, 39 S.W. 341 (1897).

83 Could failure of lawyers of other countries to volunteer to defend Eichmann be taken as evidence of special “partiality”?

84 Formulation of such penal code is seriously handicapped by a divergence of criminal law ideologies in common-law and code countries. Understanding can be reached more easily in the course of theoretical discussion than in the course of ad hoc judicial measures.

85 The territorial element in law is traceable to a primitive belief in a magic operation of “land” as a punishing agent. Traces of such belief may be found in the Biblical view that the land is “defiled” by sin, that it denies its fruit to a sinner, and that it must be cleansed by his punishment. See, e.g., Num. 35, 34; Deuter. 24, 4; Gen. 3; 17; 4; 10. It is uncertain when exactly the territorial principle of jurisdiction, as formulated in our law, made its first appearance. “Lex” in the phrase “per legem terrae” in Germanic law meant not “law” but a mode of proof. See, on this, Silving, “The Oath I,” 68 Tale Law J. 1329, at 1364 (1959). The essence of “jury trial” was not its locality but its method: jurors were originally “witnesses.” The locality of trial became important because on it depended the availability of witnesses. It is pertinent to note that in the case of Eiehmami, witnesses are more readily available in Israel than perhaps in any other country.

The dogmatic general statement that a defendant is “entitled to be tried where his offense is charged to have been committed” has no support in international law authorities. It is amply controverted by the acceptance of other jurisdictional principles, including the principle of “universal jurisdiction,” in many penal codes. Indeed, contrary to the position taken by the Harvard Research in International Law, Jurisdiction with Respect to Crime, note 29 above, at 582 (comment to Art. 10 of the Harvard Draft Convention), penal codes often expressly dispense with the requirement that a crime within universal jurisdiction qualify as crime within the law of the place of commission. See, e.g., § 4(3), Nos. 3, 4, 7, 8 and 9, German Penal Code, as amended by the Third Criminal Law Amendment Act of Aug. 4, 1953 (B.G.B1. Pt. I, at 735) ; Art. 9, Polish Penal Code of 1932 (text as in force Sept. 1, 1958, Kodeks karny, 9th ed., Wydawnictwo prawnicze, Warsaw, 1958); Art. 8, letters (e) to (k), Greek Penal Code of 1950 (German trans, by Karanikas, 1953).

86 It should be noted that many German jurists resent the fact that the Allied Control Council imposed upon German law the retroactivity principle, adopted in legislation on war crimes, crimes against peace and against humanity. See, for example, Maurach, op. cit. 103. Countries other than Germany have a better standing to deny the onetime “existence” of the National Socialist exemption against killing, since they have never positively recognized it.

87 The issue is not only that the crimes were committed before punishment was provided for—this objection may be answered by referring to the universal law on homicide—but that the tribunal was established ex post facto.

88 Mr. Taylor challenges Mr. Ben-Gurion’s artless invocation of “universal jurisdiction” by saying: “The victims of the Nazi ‘final solution of the Jewish problem,’ in which Eichmann is implicated, were in the power of the Third Reich then, just as Eichmaim is now in the power of Israel. If Israel as a sovereign nation is not ‘answerable to any external authority’ for its handling of Eichmann, neither was the Third Reich (or Eichmann) for its handling of the Jews.” The author adds: “It is indeed a bitter irony that arguments once used by Hitler are now echoed by those who assume to speak for the people he sought to exterminate. They are based on an absolute nationalism which is irreconcilable with the very idea of international law, and would put beyond its reach the conduct of Eichmann or of Adolf Hitler himself.” This statement evidences such obvious misconception of “universal jurisdiction” and the philosophy underlying this principle, as to call for but a brief answer. Hitler did not invoke “universal jurisdiction” to “try” Jews; he did not “execute” them but “exterminated” them. Nor did he assume to do so on the ground of anything they allegedly “did”; he “exterminated” them for what they allegedly “were.” Indeed, his program of “extermination” extended to infants.

89 For an excellent presentation of the origin of the concept of “war crimes” in that of “brigandage” as a “universal crime,” see Cowles, , “Universality of Jurisdiction Over War Crimes,” 33 Calif. Law Rev. 177 (1945). The basis of “universal jurisdiction” is not territorial sovereignty but the universality of the crimes subject to such jurisdiction. Custody of the defendant is a condition of the exercise of such jurisdiction, but it is not mere custody that gives any state that holds a defendant charged with such crime the right to try him. That right is rather based on the humanitarian idea that there are crimes that affect mankind and, for this reason, may be tried by any state representing mankind.

Attention is also drawn to the fact that, while one of the reasons on which “universal jurisdiction” over pirates is founded may be “because their crimes are committed on the high seas, beyond the bounds of territorial sovereignty,” this reason is not applicable in the case of “brigands “ or “ war criminals, “or indeed in the case of the numerous offenders whose crimes are triable under the principle of “universal jurisdiction “as adopted by many penal codes.

90 See Argentina’s note to Israel of June 8, pars. 4 and 7, note 33 above.

91 This point was stressed, among others, by Tunisia. See U.N. Doc. S/P.V. 867, par. 76. It might be interesting to inquire whether Tunisia abstained from adjudicating crimes committed before she became independent.

92 See La Prensa, June 10, 1960, reporting a United Press report from Amsterdam, June 9; La Nación, June 11, 1960, citing a report from Bamberg, Germany; see also La Prensa, June 15, 1960 (regarding the extradition request re Josef Mengele).

93 Compare note 87 above.

94 See statement of Mr. Berard, French representative, in the U.N. Security Council debate, U.N. Doc. S/P.V. 867, par. 60.

95 Of course, rather early in Koman law there already obtained a difference between “ius” and “fas,” the latter being religious “law.”

96 No distinction was drawn between “laws of nature,” that is, those governing the physical universe, and “laws” governing men’s conduct. In fact, there are languages in which there is often no distinction between the future tense and an imperative. Such is the language of the Bible, Hebrew. But this should not be taken to imply that description precedes normative regulation. Actually, the converse relation obtains, as shown by Kelsen. See his Society and Nature (1943).

97 This is true of Roman law, even though the praetor was deemed to function not only “aãiuvanãi, vel supplenăi,” but also “corrigendi inris civilis gratia.” Digest 1.1.7.1. As regards English law, notice the following statement by Lord Ellesmere in Earl of Oxford’s Case, 1 Chan. Rep. 1, 21 Eng. Rep. 485 (1615): “ [I]n this Case there is no opposition to the Judgment; neither will the Truth or Justice of the Judgment be examined in this Court, nor any circumstance depending thereupon; but the same is justified and approv’d; and therefore a Judgment is no let to examine it in Equity, so as all the Truth of the Judgment, etc., be [not] examin’d . . . [W]hen a Judgment is obtained by Oppression, Wrong and hard Conscience, the Chancellor will frustrate and set it aside, not for any error or defect in the Judgment, but for the hard Conscience of the Party.” 1 Chan. Rep. at 7, 10.

98 Beling, Die Lehre vom Verbrechen 31-32 (1906).

99 For discussion of Radbruch‘s original philosophy of law and the changes introduced by him under the impact of his experience during the National Socialist regime, see Wolf, Erik, “Revolution or Evolution in Gustav Radbruch’s Legal Philosophy,” 3 Natural Law Forum 1 (1958); also Fuller, , “American Legal Philosophy at Mid-Century,” 6 Journal of Legal Education 457 (1954). As regards terminology, “Zwechmässigbeit”—literally fitness to purpose—has been translated by Patterson as “expediency.” Fuller’s translation, “utility,” is believed to be preferable, since it conveys the idea of conduciveness to universal purpose, whereas “expediency” rather means eonduciveness to special advantage (in German, “Zweckentsprechend”). See Fuller, cited above, at 483. “Mechtssicherheit” is translated by both Fuller and Patterson as “certainty.” In German legal and jurisprudential terminology, the term rather connotes “security“—that is the result of “certainty”—a state of protection or reliance upon a consistent functioning of law. Radbruch uses the term in this sense.

100 Radbruch, Gesetzliches Unrecht und übergesetzliches Recht, first published in 1946 and reprinted in a posthumous edition of Radbruch’s Rechtsphilosophie 347-357 (4th ed., edited by Erik Wolf, 1950).

101 A police president who had participated in the compulsory transportation of Jews to Riga, now charged with the crime of false imprisonment committed in office, invoked in defense a command of the Reich Security Office ordering him to perform the acts charged. 3 B.G.H.St. 357 (I. Strafsenat, 1952). For a discussion of this case see Ryu, and Silving, , “ Error Juris: A Comparative Study,” 24 U. Chicago Law Rev. 421, at 465 (1957). A woman who informed against her husband to National Socialist authorities and testified in his trial before a military tribunal (even though she had a right not to testify and was duly advised by the presiding judge that she could refuse testimony and that there was no other evidence against the husband), thereby causing a death sentence to be issued against him, now alleged that she was merely assisting in law enforcement. 3 B.G.H.St. 110 (I. Strafsenat, 1952). Was the command in the first case “law” Was the sentence in the second case “lawful” On answers to these questions depended the problem of whether defendants could be convicted. German courts denied the authoritative force of the command in the first case and . held the sentence in the second case to have been “illegal” (abuse of discretion by imposition of a death sentence for a minor crime, although the statute provided for a very wide range of potential punishment). As suggested above, note 86, such decisions are more dubious when rendered by a German court under German law than are similar decisions when rendered by courts of another country or by an international court. For in Germany they abolish an immunity ex post facto, whereas a foreign or international court may adopt the present German position that National Socialist legislation or adjudication was void and that former law became automatically applicable, without inquiring into constitutionality of that position under German law.

102 Legislation is not completely eradicated by being repealed. Indeed, even a declaration of nullity cannot, within principles of a “rule of law,” wholly eliminate defenses based on its past existence as “law.” Elimination of such defenses has its source in “natural law.”

103 For discussion of the interesting problem of “unconstitutional constitutional law,” see Silving, , “Twilight Zone of Positive and Natural Law,” 43 Calif. Law Rev. 477, 487-489, 507-509 (1955). In 1956 the Federal Constitutional Court of the German Federal Republic dealt with the question raised by the Communist Party whether Art. 21 of the Constitution of the Federal Republic, authorizing the Constitutional Court to declare a political party unconstitutional if it tends “to impair or eliminate the free democratic basic order,” is itself “constitutional.” 5 Entscheidungen des Bundesverfassungsgerichtshofs 86 (1956). In 2 B.Verf.G.E. 1, at 14 (1952), the same court enumerated those fundamental principles of law to which constitutional provisions must conform in order to be “constitutional.”

104 Radbruch, Beehtsphilosophie 335-337, op. cit. note 100 above.

105 3 B.G.H.St. 357, note 101 above.

106 See United Press reports from Bonn, Germany, May 27, 1960 (in La Prensa, Buenos Aires, May 28, 1960, p. 3), and June 9, 1960 (La Prensa, June 10, 1960 (no change of position in spite of the Argentine-Israeli dispute)). For comments on Germany’s stand, see New York Times, June 26, 1960.

107 Notice that this merger has never been total and that significant remnants of the historical division obtain in our present law.

108 On the significance of this point, see the following part.

109 It may be pertinent, as bearing on the Eichmann case, to consider the approach of Argentine national law to the problem of “no exigibilidad de otra conducta” in the light of the impact of border areas of “natural law” upon legal development. As stated above, Argentine decisions recognizing the “principle of inexigibility” are very scarce. Yet, there is a steady flow of new legal ideas of continental European origin. Doctrinal writings, statutes, reform projects and judicial decisions of Germany, Italy and Spain are cited as at least persuasive authority. To comprehend the significance of such sources in a country of civil-law tradition, it is necessary to take account of the fact that in these countries the belief prevails that there is such a thing as a “science of law” (sciencia jurídica) which—being a “science”—is not territorially limited. Principles of law are often derived from such “seienee.” Whatever may be the objective validity of this belief, the fact is that this belief is operative as a “jurisprudence of the law,” which is law-creative. In this sense it is possible to say that the “principle of inexigibility” is not alien to “positive” Argentine law. On the rôle of “jurisprudence” within positive law, see last paragraph of this article.

110 It is a sad irony of our age that the concept of “sovereignty,” which prevented the “civilized nations of the world” from intervening in the “internal affairs” of National Socialist Geraiany when she engaged in mass persecution of innocent human beings, is now being again invoked as a sacred right in defense of a formula of territorial sovereignty, when the right to try the chief strategist of mass murder is in issue.

111 See, particularly, Kelsen, Reine Rechtslehre (2d ed., 1960) ; for recent interpretations, see also “Was ist die Reine Rechtslehre?” in Demokratie und Rechtsstaat, Essays in honor of Prof. Giacometti, pp. 143-162 (1953); “Was ist ein Rechtsakt?” 4 österreichische Zeitschrift für öffentliches Recht 263 (1952).

112 Thus, a statement such as Justice Holmes’ famous remark that, as a judge, he is administering law and not morality, is either true or false, depending on the exact meaning attributed to it. Assuming that “law” in this statement refers to Federal law, and assuming further that this law requires decisions to conform to some morality standard, then the statement is false as a statement of “law” itself. If it means that no moral considerations will be admitted other than those authorized by law, the statement is correct as a statement of law, as of the time when it is made. The time reservation is significant. For, assuming that a judge either erroneously finds a moral consideration to be admissible by Federal law or decides to change Federal law so as to conform it to some moral standard in which he believes, and assuming that that judge succeeds in swinging a majority of the United States Supreme Court to his position, this erroneous, perhaps revolutionary, view will prevail. It will be positive Federal law, judging by the standards of the system of U. S. Federal law. It will be the “ought” of today, though it was not the “ought” of yesterday. Holmes’ statement is thus true, if it means that as a judge he does not administer “morality” in the sense of applying it as the ultimate formal standard of judging the validity of a rule. Or, that statement may be also true if it purports to interpret Federal law as not incorporating morality, provided that Federal law in fact does not incorporate morality.

113 The opinio necessitates is a “natural law” feature that is incorporated in the “positive law” definition of “customary law.” On the first instance of custom, see Silving, “ ‘Customary Law’: Continuity in Municipal and International Law,” in Symposium on Juristic Bases for International Law, 31 Iowa Law Rev. 614 at 624 (1946).

114 As shown in Part I of this essay, within a strict interpretation of the parties’ allegations in the Eichmann case, Argentina’s claim should have been dismissed a limine.

115 See Dr. Amadeo’s statements as regards “punishment,” S/P.V. 865, par. 34; as regards reparation, ibid., pars. 12, 24, 47.

116 In criminal law, of course, there are various types of “exemptions”: some are deemed to exclude only the culpability, others also the “illegality” of the conduct in issue. The classification of “ inexigibility ” as a justification ground or as an excuse is controversial. The present writer believes that this distinction between exemptions which all result in the inapplicability of sanctions is not functional and should be abandoned, since it confuses collateral policy issues. Certainly “inexigibility” should result in immunity.

117 U.N. Doc. S./P.V. 868, par. 42. From a jurisprudential standpoint, it is most interesting to note Dr. Amadeo’s citation of “Kant’s moral rule that each of our acts should be such that it could be made the basis of a universal rule of conduct,” and his plea that Council members ask themselves “what the world would be like if the position taken by the State of Israel in this instance were applied as a universal rule of conduct in international relations.” U.N. Doc. S/P.V. 865, par. 44. Of course, Dr. Amadeo had previously defined the hypothetical rule at an arbitrary level of abstraction when he said: “This is not the case of Adolf Eichmann and of the crimes of which he is accused. It is the case of a country which comes to claim justice in the face of an act which could, if repeated, undermine the very foundations of the international order. The individual captured might be called ‘Mr. X’; his name and his record are irrelevant.” Since the categorical imperative is a rule of personal morality and not of law, a rule of one’s own conduct and not a rule of conduct one can demand from another (Kant, Metaphysik der Sitten, Einleitung zur Tugendlehre, VI, at 229, ed. Vorlander, 4th ed., 1922), it is a matter of personal moral judgment to decide whether it is indeed irrelevant that “Mr. X” happens to be a murderer of 6,000,000 human beings, who, according to Kant, must be punished even if such punishment were the last act before total destruction of all life. It may be pertinent to call Dr. Amadeo’s attention to the “supreme principle” of substantive ethics, which Kant formulated as pursuit of those goals, which to have could be everyman’s universal law (Handle nach einer Maxime der Zwecke, die zu haben für jedermann ein allgemeines Gesetz sein kann). Kant, op. cit., IX, at 237.

118 See Dr. Amadeo ‘s statement in the Security Council debate, note 67 above.

119 Hart, H. L. A., “Positivism and the Separation of Law and Morals,” 71 Harvard Law Rev. 593, at 615-621 (1958).

120 There is no need for present purposes to engage in an analysis of the exact meaning of the “ought.” Suffice it to say that from the point of view of German law, as obtaining at the time of the Nazi rule, Nazi “laws” imposed an “obligation” and “should have been obeyed” within the meaning of what was then regarded as “German law.”

121 Today, no doubt, Israel possesses “universal jurisdiction” over Eichmann. The interpretation submitted in the text, however, refers to a broader concept of “jurisdiction,” one that is not predicated upon custody of the defendant and that indeed entitles the state possessing such jurisdiction to extradition of the person concerned. For the subsidiary nature of “universal jurisdiction” as regards war crimes, see Cowles, note 89 above, at 217, stating that, “while the State whose nationals were directly affected has a primary interest, all civilized States have a very real interest in the punishment of war crimes.”

122 Eichmann’s nationality status is uncertain. He may have been an Austrian national. Shirer, The Rise and Fall of the Third Reich 351 (1960), describes him as “an Austrian Nazi, a native of Hitler’s home town of Linz.” But Eichmann was undoubtedly a German national at the time when he committed the crimes in issue, and it would be hard indeed to construe acquisition of German nationality on his part as involuntary. Even assuming that he had re-acquired Austrian nationality after the war under Austrian law (this is most doubtful), should he be treated as an Austrian as regards crimes which he committed in connection with the very same political events which were the source of his loss of Austrian and acquisition of German nationality? On the complex rules as regards the conflict of nationality laws of Germany and Austria, resulting from the annexation of Austria and her re-establishment as an independent state, see Massfeiler, Deutsches Staatsangehörigkeitsrecht, Ergänzungsband (1957). In the light of the events of the National Socialist invasion of Europe and its impact on nationality concepts, there is an urgent need for re-examination of fundamental notions of international law as regards nationality, its modes of acquisition and of loss, the legal consequences flowing from nationality, the status of stateless persons and of aliens.

123 Germany has recognized Israel’s right to represent Jewish victims of Nazi oppression by signing the agreement between Israel and the German Federal Republic Sept. 10, 1952 (Documents, Jerusalem, 1953; and B.G.B1. 1953, Pt. II, at 37). For an interesting discussion of Israel’s jurisdiction to try Eichmann, see Green, L. C., “The Eichmann Case,” 23 Modern Law Rev. 507 (1960).

124 The “ought” of a rule of a particular legal system is derived from the fact that it is authorized by that system. The question posed in the text—a question elaborately discussed in Kelsenian jurisprudence—is: “Whence does the total system derive its authority?”

* The author wishes to express her profound gratitude to Professor Myres S. McDougal of Yale Law School for constructive criticism of the manuscript. In no event should Professor McDougal be held responsible for the views expressed in this article. These views are exclusively those of the author.

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American Journal of International Law
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