A.  Factual Background

1 (Otto) Adolf Eichmann (1906–62) was, during most of World War II, head of Section IVB4 (‘Jewish Affairs and Emigration’, a part of the Gestapo Bureau) of the Reich Central Security Office (‘RSHA’), where he reached the grade of SS Obersturmbannführer (Lieutenant Colonel). In this capacity, he was notably in charge of the round up of Jews in Germany and occupied countries, and of their deportation to extermination camps. Although he was not accused before the International Military Tribunal (International Military Tribunals), the Nuremberg Judgment singled him out as the main official responsible for carrying out the policy of the ‘Final Solution of the Jewish Question’ by the Nazi regime, which Eichmann himself estimated to have resulted in the killing of six million Jews (Trial of the Major War Criminals [Judgment] 250 and 252–53). At the end of the war, Eichmann was captured by American forces—who failed to recognize him—then escaped and, after a few years in Germany and a passage in Italy, emigrated to Argentina in 1950 under the name of Ricardo Klement.

2  On 11 May 1960, in a carefully planned operation conducted by the Israeli secret services, Eichmann was captured near Buenos Aires and, 10 days later, was clandestinely transferred to Jerusalem. This incident provoked a dispute between Argentina and Israel, which was settled amicably only following a resolution of the United Nations Security Council (‘UNSC’ ; United Nations, Security Council).

3  Eichmann’s trial before the District Court of Jerusalem began on 11 April 1961 and lasted until 14 August 1961. On 11 December 1961, Eichmann was declared guilty on all counts of which he was accused (with certain minor restrictions) and, four days later, he was sentenced to death. The defence appealed both the conviction and the sentence on legal and factual grounds. However, on 29 May 1962, the Supreme Court, sitting as a Court of Criminal Appeal, rejected the appeal and upheld the District Court’s judgment, making it clear that it concurred, ‘without hesitation or reserve, in all its conclusions and reasons’ (Attorney-General of the Government of Israel v Adolf Eichmann (Judgment) Israel Supreme Court sec. I, para. 5). Eichmann’s last appeal to the President of Israel for clemency was rejected, and he was executed by hanging on 1 June 1962.

B.  The Abduction Dispute

4  In the weeks following the abduction, Argentina, faced with Israel’s refusal to return Eichmann, brought the dispute to the attention of the UNSC, under Arts 34 and 35 (1) United Nations Charter (‘UN Charter’; see UNSC ‘Letter Dated 15 June 1960 from the Representative of Argentina to the President of the Security Council’ [15 June 1960]). Israel objected to this initiative, considering that the matter went beyond the competence of the UNSC (see UNSC ‘Letter Dated 21 June 1960 from the Representative of Israel to the President of the Security Council’ [21 June 1960]). In Resolution 138, adopted on 23 June 1960, by eight votes to none, with two abstentions—Argentina did not participate in the vote in conformity with Art. 27 (3) UN Charter—the UNSC declared that ‘acts such as that under consideration, which affect the sovereignty of a Member State and therefore cause international friction, may, if repeated, endanger international peace and security’ (UNSC Res 138 [1960] [23 June 1960] para. 1) and requested ‘the Government of Israel to make appropriate reparation in accordance with the Charter of the United Nations and the rules of international law’ (ibid para. 2). The resolution thus left unresolved the key question of what would constitute ‘appropriate reparation’ in this case—and, in particular, whether Eichmann’s return could be demanded on these grounds. Negotiations continued between the parties in the following weeks and a settlement of the dispute was only reached on 3 August 1960, in the form of a brief joint statement in which the governments of Argentina and Israel ‘resolve[d] to regard as closed the incident which arose out of the action taken by citizens of Israel, which infringed the fundamental rights of the State of Argentina’ (Attorney-General of the Government of Israel v Adolf Eichmann (Judgment) District Court of Jerusalem para. 40).

C.  The Trial of Eichmann: Jurisdictional Issues

5  The Israeli tribunals’ jurisdiction (Criminal Jurisdiction of States under International Law ; Jurisdiction of States) to try Eichmann was based on the 1950 Nazis and Nazi Collaborators (Punishment) Law (‘1950 Law’), which provided inter alia that a person having committed, in an enemy country, a crime against the Jewish people or a crime against humanity (Crimes against Humanity) during the period of the Nazi regime or a war crime (War Crimes) during World War II was liable to the death penalty. The defence challenged the jurisdiction of Israeli tribunals on various grounds, which were all rejected in the judgment and the appeal.

6  The defence had submitted inter alia that the 1950 Law, in attributing jurisdiction to Israeli tribunals to try these crimes, was in conflict with international law (Attorney-General of the Government of Israel v Adolf Eichmann (Judgment) District Court of Jerusalem para. 8). While rejecting this argument on the grounds that it was under an obligation to give effect to its municipal legislation, the District Court examined legal writings, international instruments, and case law—notably of the Nuremberg trials—which supported the finding that each of the crimes in question was universal in character and justified Israel’s jurisdiction based on the universality principle (ibid paras 11–26); with regard to genocide in particular, it noted that Art. VI Convention on the Prevention and Punishment of the Crime of Genocide (‘Genocide Convention’) was not designed to limit the States’ jurisdiction to try this crime under customary international law (ibid paras 20–23). The Supreme Court further elaborated on this basis of jurisdiction, showing that the said crimes had always borne the stamp of international crimes and that international law vested in every State the authority to try and punish them (Attorney-General of the Government of Israel v Adolf Eichmann (Judgment) Israel Supreme Court sec. I, paras. 9–12). It also observed that Israel, rather than Germany—where most of the offences had been committed—constituted the forum conveniens (appropriate forum) for the conduct of the trial, given that most of the evidence was located therein (ibid sec. I, para. 12 (d)). It should be noted that the universality principle was the only one that could found the entirety of the indictment against Eichmann, which included charges for crimes committed against non-Jews. The District Court found nevertheless that its jurisdiction was also based on the protective and passive personality principles, given the connecting link between the State of Israel and the Jewish people who were the victims of most of the crimes included in the indictment; the fact that Israel had been created after the commission of these crimes did not alter that conclusion (Attorney-General of the Government of Israel v Adolf Eichmann (Judgment) District Court of Jerusalem paras 31–38; see also Attorney-General of the Government of Israel v Adolf Eichmann (Judgment) Israel Supreme Court sec. I, para. 12).

7  The defence had also submitted, on the basis of the Act of State Doctrine, that Israeli tribunals could not try the accused for acts carried out in the course of duty on behalf of a foreign country. This argument was essentially devised as a challenge to jurisdiction, arguing the immunity of a State official from foreign criminal jurisdiction (Immunities) as a corollary of the rule par in parem non habet imperium (an equal cannot judge an equal), but had also some relevance on the merits—the defence had maintained that only Germany, and not the accused, was responsible for the crimes in question. This plea was rejected: the District Court mainly invoked the repudiation of the Act of State doctrine at Nuremberg (Attorney-General of the Government of Israel v Adolf Eichmann (Judgment) District Court of Jerusalem para. 28) and the Supreme Court referred to additional case law in the same direction (Attorney-General of the Government of Israel v Adolf Eichmann (Judgment) Israel Supreme Court sec. I, para. 14).

8  The defence had further argued that the prosecution of the accused in Israel following his abduction from a foreign country conflicted with international law and exceeded the jurisdiction of the tribunal (Attorney-General of the Government of Israel v Adolf Eichmann (Judgment) District Court of Jerusalem para. 8). Relying extensively on precedents of national tribunals, the District Court found that the circumstances of the arrest and the mode of bringing the accused into the territory of the State had no relevance to the trial; it added that this plea, based on an alleged violation of the State’s sovereignty, pertained only to Argentina under international law (ibid paras 40–52; see also Attorney-General of the Government of Israel v Adolf Eichmann (Judgment) Israel Supreme Court sec. I, para. 13). The District Court also rejected the plea of prescription based on Argentine law (at para. 53).

D.  The Trial of Eichmann: Merits

9  The indictment against Eichmann contained 15 counts under the 1950 Law. The first four counts related to ‘crimes against the Jewish people’, respectively in the form of killings of Jews, placing Jews in living conditions calculated to bring about their physical destruction, causing serious bodily or mental harm to Jews, and devising measures intended to prevent child-bearing among Jews. Under the 1950 Law, the definition of this crime was directly inspired by the Genocide Convention—the crime was but a specific case of genocide, directed against the Jewish people—and required the proof that the accused had acted with the ‘intent to destroy the Jewish people in whole or in part’ (sec. 1 (b) 1950 Law). Although it did not rely on the law of criminal conspiracy as invoked by the prosecution, the District Court considered that the ‘Final Solution’ was to be regarded as a single whole and that the accused’s criminal responsibility was to be determined accordingly. It found that Eichmann had been privy to the plan for extermination from June 1941 and had begun to act in furtherance of this plan as of August 1941: he was thus convicted under counts 1, 2, and 3 as of the latter date, as well as under the fourth count for the relevant period 1943–44.

10  Eichmann was also accused of crimes against humanity for his participation in various actions against Jews (counts 5 to 7) and in the deportation of Polish civilians from 1940 to 1942 (count 9), Slovenes in 1941 (count 10), gipsies (count 11), and 100 children from Lidice in Czechoslovakia (count 12). Crimes against humanity, as defined in the 1950 Law, included two categories of crimes: murder, extermination, enslavement, starvation or deportation, and other inhumane acts committed against any civilian population; and persecution on national, racial, religious, or political grounds. Contrary to the Charter of the Nuremberg Tribunal, this definition did not require any connection between the acts in question and a crime against peace (Crimes against Peace) or war crime; the District Court interpreted this latter condition as a limitation to the jurisdiction of the Nuremberg Tribunal, and not pertaining to the substantive nature of a crime against humanity (at para. 29; see also Attorney-General of the Government of Israel v Adolf Eichmann (Judgment) Israel Supreme Court sec. I, para. 10). The District Court also found that the plunder of property, as perpetrated against the Jews, could be considered an inhumane act under that definition if committed by pressure of mass terror against a civilian population or if linked to any other acts of violence listed therein (at para. 204). It convicted Eichmann under these counts, as of the date in which he undertook operational tasks, ie March 1938.

11  Eichmann was further accused, and found guilty, of war crimes (count 8) for the ill-treatment, deportation, and murder of the Jewish inhabitants of States occupied by the Axis Powers during the war (ibid para. 206).

12  Eichmann was finally accused, and found guilty, for his membership in the SS, SD, and Gestapo (counts 13 to 15), which were considered, with reference to the Nuremberg Judgment, as enemy organizations under the 1950 Law.

13  The main legal defence by the accused was that he had acted in furtherance of superior orders. The 1950 Law, however, explicitly provided that the obedience of superior orders could not exempt from responsibility for the crimes in question, and could only be accepted as a ground of mitigation of the sentence. The District Court thus rejected this plea, finding that the relevant provision in the 1950 Law was in accordance with the law of all civilized countries (at paras 216–20). It considered that the orders received by Eichmann were manifestly unlawful (ibid para. 221) and it demonstrated in detail that the accused had performed his duties at every stage with inner conviction (ibid paras 221–43). The Supreme Court confirmed this finding, noting that no principle recognizing the defence of superior orders had crystallized in international law (Attorney-General of the Government of Israel v Adolf Eichmann (Judgment) Israel Supreme Court sec. I, para. 15 and sec. III, para. 17). It further rejected the plea of ‘necessity’—which was admitted under the 1950 Law—considering that Eichmann had not been coerced into committing the crimes in question and had, on the contrary, executed his tasks con amore (with devotion; ibid sec. I, para. 15 and sec. III, para. 18).

E.  The Legacy of the Eichmann Case

14  The abduction dispute between Argentina and Israel would, in modern terminology, be considered a controversy about the responsibility of a State for an internationally wrongful act (State Responsibility) and reveals the extent to which the works of the International Law Commission (ILC) have contributed to clarify this field of law. While the main issues involved could today be easily understood in the light of the legal concepts elaborated by the ILC (attribution of conduct to a State and violation of an international obligation as constitutive elements of an internationally wrongful act; circumstances precluding wrongfulness; content of the international responsibility of the State), the notes exchanged by the parties, and the debates in the UNSC about the Eichmann case show that governments had at the time divergent conceptions about the applicable law and even struggled to identify common grounds for their discussion in legal terms. Moreover, the very forum of these discussions (ie a political organ of the United Nations) appears to be inappropriate for a dispute that, today, would indubitably be qualified as ‘legal’ and probably be submitted to the International Court of Justice (ICJ), maybe together with a request for provisional measures (eg on the basis of the Genocide Convention, that was in force between Argentina and Israel at the time of the events). In any case, some of the arguments that were raised then—such as the allegation that a State would be responsible for the acts of its private nationals in any circumstance (Responsibility of States for Private Actors)—appear to have been definitively set aside by the works of the ILC, while others remain in the legal headlines. This is the case in particular of the conditions under which the acts of individuals could be attributed to the State ex post facto (retroactively)—which was at issue in the United States Diplomatic and Consular Staff in Tehran Case (United States of America v Iran) and in the International Criminal Tribunal for the former Yugoslavia (‘ICTY’) case Prosecutor v Dragan Nikolić (‘Sušica Camp’; Prosecutor v Dragan Nikolić [Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal] ICTY-94-2-PT [9 October 2005] paras 60–67)—or of the extent to which international remedies can affect the exercise of the judicial function at the national level (as raised in the Arrest Warrant Case [Democratic Republic of the Congo v Belgium] and Avena and Other Mexican Nationals Case [Mexico v United States of America]).

15  The criminal proceedings in the Eichmann case constitute in many ways an appendix to the Nuremberg trials. It is apparent that the judges in Jerusalem intended to consolidate the legacy of the Nuremberg judgments—both on the account of the facts and the law—but were not looking to set a precedent for future prosecutions of international crimes in a context different from that of World War II—as shown in particular by the limited scope of the law that motivated the prosecution. It follows that the legal reasoning of the Eichmann judgments, which relied strongly on the Nuremberg precedent, may appear to have limited significance today, especially when compared with the elaborated jurisprudence of international criminal tribunals. This reasoning has sometimes been the subject of criticism, as was the case, for instance, of the refusal of Israeli courts to examine the circumstances of the arrest of the accused—a standing, however, that has far from remained isolated, as shown by more recent cases involving international abductions, such as the Sosa v Alvarez-Machain litigation in the United States (542 US 692 [2004]); Abduction, Transboundary). In any event, the importance of the Eichmann case should not be underestimated, in that it remains a milestone in international criminal law at least under two aspects, still at issue: first, the prosecution was mainly based on the principle of universal jurisdiction; second, it resulted in the accused being tried and found guilty, by a national tribunal, of crimes committed in his capacity as an official of a foreign State.