2. Genocide and ethnic cleansing

Eichmann was charged with breaches of the Nazis and Nazi Collaborators (Punishment) Law.Footnote ²⁰ The legislation was adopted in 1950 to provide for retroactive prosecution of international atrocity crimes associated with the Nazi regime and the Second World War. Aside from an undoubted symbolic purpose, the law was intended as a legislative vehicle to deal with Jewish collaborators who had immigrated to Israel. That Nazi fugitives might find themselves in Tel Aviv or Jerusalem, whether by design or compulsion, was probably not even contemplated by the Knesset members at the time of adoption.Footnote ²¹ Three categories of offence were set out: crimes against the Jewish people, crimes against humanity, and war crimes. The first of these, crimes against the Jewish people, closely resembles the accepted international definition of the crime of genocide first set out in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, as the Israeli courts acknowledged.Footnote ²² There is only one difference. Whereas the Convention contemplates genocide that is perpetrated against a ‘national, ethnical, racial or religious group’, the Israeli legislation replaced these words with the expression ‘the Jewish people’.

At the same time as it adopted the Nazis and Nazi Collaborators (Punishment) Law, Israel promulgated legislation, but with only prospective application, in order to provide for the prosecution of genocide perpetrated against any ‘national, ethnical, racial or religious group’.Footnote ²³ The two statutes gave effect to obligations imposed by the 1948 Convention. Israel had not participated in the negotiations of the treaty because it only joined the United Nations in May 1949, five months after the Genocide Convention was adopted by the General Assembly.Footnote ²⁴ It signed the Convention on 17 August 1949, completing the process with ratification on 9 March 1950, making it one of the twenty states whose participation was necessary for the Convention to enter into force.

In 1951, the International Court of Justice issued an important Advisory Opinion dealing with the Genocide Convention.Footnote ²⁵ However, the ruling dealt with the entry into force of the Convention and the permissibility of reservations rather than with the concrete application of the concept of genocide in a criminal prosecution. During the 1950s, there were prosecutions under the Nazis and Nazi Collaborators (Punishment) Law, but none that was so reported as to constitute a useful legal precedent. Thus, the judges in Eichmann were the first to consider the definition of the crime of genocide, the appropriate jurisdiction for its prosecution, and related issues. With one exception,Footnote ²⁶ commentators on the judgments at the time did not seem to appreciate the importance of this. Yet Eichmann remained the only significant judicial application of the Genocide Convention until the late 1990s, when rulings of the United Nations International Criminal Tribunals began to appear.

Since the mid-1990s, with the establishment of the ad hoc tribunals for the former Yugoslavia and Rwanda, as well as the International Criminal Court, there has been an explosion of litigation concerning the crime of genocide. In addition to pronouncements of the international criminal tribunals,Footnote ²⁷ important decisions have been issued in recent years by the International Court of Justice,Footnote ²⁸ the European Court of Human Rights,Footnote ²⁹ and several national courts. The definition that appears in the 1948 Convention was also interpreted in an important fact-finding report of the United Nations.Footnote ³⁰ New international institutions have been established, notably the United Nations Special Adviser for the Prevention of Genocide, and they have made their own contribution to our evolving understanding of the law. Probably more academic literature was been published on the Genocide Convention in the first decade of this century than in the previous fifty years.

In some parts of the world it is now a crime to dispute whether the Holocaust or Shoah should be described with the word ‘genocide’, but of course the word was not even used in the judgment of the International Military Tribunal of 30 September and 1 October 1946. The legal framework for the great trial of the Nazi leaders, adopted at the London Conference in August 1945, employs the term ‘crimes against humanity’ to describe the atrocities perpetrated against the Jews of Europe. The concept of crimes against humanity was broad enough to cover not only the physical destruction of a national, ethnic, racial, or religious group (as ‘extermination’) but also a range of other forms of discriminatory attack directed at such groups (as ‘persecution’). In the Eichmann judgment, the District Court explained that ‘the crime of “genocide” is nothing but the gravest type of “crime against humanity”’.Footnote ³¹

The word ‘genocide’ was first employed by Raphael Lemkin in his influential book Axis Rule in Occupied Europe, published in November 1944.Footnote ³² When the Nuremberg judgment was issued, Raphael Lemkin was outraged at the exclusion of what he called ‘peacetime genocide’Footnote ³³ because the International Military Tribunal confirmed that crimes against humanity were restricted to acts perpetrated in association with aggressive war. The judges did not employ the term ‘genocide’, although it is evident from Lemkin's reaction that he understood the concept as a cognate of crimes against humanity, for which the majority of the Nazi defendants were convicted. Lemkin returned to New York from Nuremberg and immediately began a campaign within the United Nations General Assembly that led to the adoption of the Genocide Convention two years later. When the Cuban delegate, Ernesto Dihigo, rose in the Sixth Committee of the General Assembly in November 1946 to propose a resolution recognizing genocide as a crime under international law, he explained that the purpose was to rectify a shortcoming of the Nuremberg judgment, namely its failure to acknowledge the criminality of acts perpetrated before the outbreak of the Second World War.Footnote ³⁴

Adopted on 9 December 1948, the Convention on the Prevention and Punishment of the Crime of Genocide declared:

Compared with crimes against humanity, as set out in Article VI(c) of the Charter of the International Military Tribunal, genocide was defined both more broadly and more narrowly. Broadly, because Article 1 of the Convention confirmed that genocide was punishable ‘whether committed in time of peace or in time of war’. Narrowly, in that it was not intended to encompass forms of persecution and atrocity falling short of physical destruction, nor did it apply to groups defined by criteria other than race, ethnicity, nationality, or religion. A Syrian proposal to extend the definition of genocide to include ‘measures intended to oblige members of a group to abandon their homes in order to escape the threat of subsequent ill-treatment’ was rejected by the drafters of the Convention.Footnote ³⁶

By the 1990s, it was beyond dispute that crimes against humanity could also be perpetrated in peacetime. Thus, for many modern conflicts, either term – genocide or crimes against humanity – may be a propos. Because crimes against humanity clearly extend to forms of persecution and deportation other than physical extermination, it is the appropriate description for situations of what are often called ‘ethnic cleansing’. However, campaigners often insist on the label ‘genocide’ because of a perceived stigma and potency that they seem to think is lacking with respect to crimes against humanity. The debate about use of the ‘g-word’ rages over campaigns of ethnic persecution in Sudan and Bosnia, as well as over many historic cases, including the Turkish attacks on Armenians in 1915.

The District Court of Jerusalem was the first judicial body to distinguish genocide and crimes against humanity. Under the Nazis and Nazi Collaborators (Punishment) Law, Eichmann was prosecuted for both genocide and crimes against humanity. To the Israeli court, drawing the line between physical extermination, which seemed required by the definition of genocide, and deportation or persecution, which were acts of crimes against humanity, seemed an important issue. The District Court of Jerusalem discussed the evolution of Nazi policy, noting how the beginning of the war against the Soviet Union in June 1941 was accompanied by a policy shift to

The Court concluded that the order for extermination was given by Hitler himself at about the time of the invasion of the Soviet Union, although it admitted that his instructions may never have been put in writing. Implementation of the final solution, ‘in the sense of total extermination’, the Court noted, was ‘to a certain extent connected with the stoppage of emigration of Jews from territories under German influence’.Footnote ³⁸

In its conclusions, the District Court considered various acts in which Eichmann was involved that were perpetrated prior to the 1941 invasion. This was the ‘second stage’ of the Nazi attacks on Jews, beginning with the outbreak of the Second World War and ending in mid-1941. It included various expulsions and deportations ‘organized by the Accused in complete disregard for the health and lives of the deported Jews’.Footnote ³⁹ The judges were convinced that ‘many Jews died as a result of the expulsions’ and that ‘there was cruelty which bordered on premeditated malice, and we have weighted carefully whether or not the Accused foresaw the murderous consequences of these deportations, and this was what he wished’.Footnote ⁴⁰

The final verdict stated:

This was a cautious conclusion, and the temptation may have been great to associate Eichmann with an extermination policy from the beginning of the war, possibly even prior to it. Perhaps the judges saw this as more of a technical distinction, and attached no great consequence to describing the acts as crimes against humanity rather than genocide. In any event, they drew a bright line between these two categories of international crime by which acts of persecution not linked to a policy of physical extermination were viewed as crimes against humanity.

When genocide prosecutions resumed more than three decades later, in the context of the breakup of the former Yugoslavia, the distinction between genocide and crimes against humanity took on considerable importance. In 1993, Bosnia and Herzegovina filed a claim in the International Court of Justice, against what was then the Federal Republic of Yugoslavia and is today Serbia, charging genocide for what was then being described as ‘ethnic cleansing’. Bosnia's lawyers argued for a more expansive interpretation of genocide than the one endorsed by the District Court in Eichmann. This was not just a matter of semantics, because the Court's jurisdiction was rooted in the Genocide Convention. If the acts were recognized as crimes against humanity rather than genocide, the International Court of Justice was without jurisdiction to make a ruling on the merits of the complaint.

Fourteen years elapsed before a final judgment was issued in that case. Meanwhile, in a series of prosecutions directed at Serbs before the International Criminal Tribunal for the former Yugoslavia dealing with the conduct of the campaigns of persecution and ethnic cleansing, the judges fairly consistently rejected charges of genocide.Footnote ⁴³ There was one exception: the systematic murder of thousands of Bosniac men and boys at Srebrenica in mid-July 1995.Footnote ⁴⁴ When the International Court of Justice finally addressed the matter in 2007, it essentially followed the approach taken at the International Criminal Tribunal for the former Yugoslavia:

In his separate opinion, Judge Ad Hoc Kreća referred to the judgment of the District Court of Jerusalem in Eichmann, noting its ‘subtle legal explanation of the difference between “ethnic cleansing” and genocide’.Footnote ⁴⁶

In one of the last prosecutions at the International Criminal Tribunal for the former Yugoslavia, involving Bosnian Serb leader Radovan Karadžić, the Prosecutor insisted on making one final effort to brand the Serb persecutions of Bosniacs and Croats with the label genocide. The charge was rejected by the Trial Chamber following the completion of the prosecution case, in an oral interlocutory ruling issued on 11 June 2012. With abundant authority to rely on, including the 2007 judgment of the International Court of Justice, it is intriguing that the judges of the Yugoslavia Tribunal returned to the first precedent of them all:

The trial of Karadžić proceeds, but subsequent to this ruling he can be convicted of crimes against humanity but not genocide for various acts of persecution and deportation perpetrated in Bosnia and Herzegovina during the three-year conflict. A genocide charge remains for the July 1995 Srebrenica massacre.

There has been much pressure upon judges to adopt an expansive interpretation of the definition of genocide, by which crimes falling short of physical extermination would be subsumed within it. Indeed, judicial authority exists for a broader construction, but it remains isolated.Footnote ⁴⁸ By and large, the approach taken by the District Court of Jerusalem (the Supreme Court did not address the issue) to interpretation of the definition of genocide set out in Article 2 of the 1948 Convention has reverberated through the case law until the present day.

3. Crimes against humanity in peacetime

The Nazis and Nazi Collaborators (Punishment) Law distinguished between three categories of crime depending on their temporal scope. While war crimes could only be committed ‘during the period of the Second World War’, both ‘crimes against the Jewish people’ and ‘crimes against humanity’ were punishable ‘during the period of the Nazi regime’. Thus, the legislation contemplated a six-year period of peacetime, from January 1933 to August 1939. Article 1 of the 1948 Convention recognized that genocide (and, therefore, ‘crimes against the Jewish people’) could be committed in time of peace. However, that crimes against humanity could take place in peacetime was rather more debatable. Indeed, it has been one of the great controversies of international criminal law for many decades.

The Charter of the International Military Tribunal made crimes against humanity punishable ‘before or during the war’, but there was nevertheless a requirement of a link or nexus with the conflict. The London Conference that established the legal basis of the Nuremberg trial very deliberately excluded crimes against humanity perpetrated in peacetime, absent a link to armed conflict, out of concern that the four Allied powers establishing the International Military Tribunal might themselves be accused of such atrocities. The American representative, Robert Jackson, was the most candid of the delegates to the London Conference in explaining why crimes against humanity committed without a link to aggressive war should be excluded from the Tribunal's jurisdiction:

The narrow scope of crimes against humanity set out in Article VI(c) of the Charter of the International Military Tribunal was confirmed in the judgment delivered on 30 September and 1 October 1946.Footnote ⁵⁰

The Israeli criminalization of crimes against humanity in peacetime, and without any link to armed conflict, was not entirely an innovation. Control Council Law No. 10, adopted by the four occupying powers in Germany in December 1945 as a basis for prosecutions before national military tribunals,Footnote ⁵¹ also did not contain the nexus between crimes against humanity and armed conflict that featured in the legislation it was modelled upon, namely Article VI(c) of the Charter of the International Military Tribunal. Over the years, reference has frequently been made to Control Council Law No. 10 as evidence either of the absence of a nexus or of its disappearance. For example, in its first judgment, the Extraordinary Chambers of the Courts of Cambodia upheld the legality of a conviction for crimes against humanity in the absence of a nexus with armed conflict with reference to Control Council Law No. 10, amongst other authorities.Footnote ⁵² Ruling on his entitlement to investigate disappearances as a crime against humanity committed in Spain in the early 1940s following the Civil War, Judge Baltasar Garzón similarly invoked Control Council Law No. 10.Footnote ⁵³

But it has always seemed implausible that the four Allied powers who crafted the definition of crimes against humanity in the Charter of the International Military Tribunal in August 1945, insisting upon the nexus with armed conflict for reasons that are credible and easy to understand, albeit objectionable, would have suddenly changed their mind in December of the same year when they enacted Control Council Law No. 10. There is actually a simple explanation: they understood the Charter of the International Military Tribunal to be international law and therefore applicable to them as well as to the Nazis, whereas they viewed Control Council Law No. 10 as domestic legislation in force only with respect to Germany.

There was considerable debate about the issue in the subsequent proceedings held at Nuremberg by American military tribunals pursuant to Control Council Law No. 10. On several occasions the prosecution argued unsuccessfully that crimes against humanity did not require a nexus to armed conflict.Footnote ⁵⁴ In two of the trials, the judges appeared receptive to the argument that crimes against humanity required no nexus with armed conflict. In the Justice case, an argument that peacetime crimes against humanity violated the rule against retroactive criminal prosecution was dismissed. The issue of the nexus with armed conflict was not directly addressed in the ruling. The prosecution indicated that it had not charged pre-1939 offences independently, and the judges demurred, indicating that they directed their ‘consideration to the issue of guilt or innocence after the outbreak of the war in accordance with the specific limitations of time set forth in counts two, three and four of the indictment’.Footnote ⁵⁵ Count one of the indictment alleged a ‘common design and conspiracy’ dating from January 1933,Footnote ⁵⁶ but none of the accused was convicted on that charge. Similarly, in the Einsatzgruppen case, the military tribunal spoke in general terms about crimes against humanity being ‘not restricted to events of war’.Footnote ⁵⁷ However, the case concerned the activities of brutal SS units that followed the invading Nazi armies into the Soviet Union. The debate about peacetime crimes against humanity was not relevant to the charges.Footnote ⁵⁸

Consequently, although the text of Control Council Law No. 10 appears to contemplate crimes against humanity outside the context of armed conflict, the case law of the American military tribunals does not provide much in the way of confirmation for such a legal development. As Kevin John Heller has explained, after thorough analysis of the law and the decisions, ‘[i]t is thus an open question to what extent the [Nuremberg Military Tribunals] support the elimination of the nexus from the customary definition of crimes against humanity’.Footnote ⁵⁹ Certainly, none of the defendants in the trials of the American military tribunals held in the Nuremberg courtroom pursuant to Control Council Law No. 10 was convicted of crimes against humanity for an act perpetrated prior to September 1939.

The most celebrated pronouncement on the topic is in the decision of the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia on a challenge to jurisdiction pressed by its first active defendant, Dusko Tadić. The issue was hardly important in determining the outcome, because the indictment concerned acts perpetrated during the armed conflict; indeed, Tadić was also charged with war crimes for the same acts. The Appeals Chamber, presided over by Antonio Cassese, spoke of the ‘obsolescence’ of the nexus,Footnote ⁶⁰ and held that ‘customary international law no longer requires any nexus between crimes against humanity and armed conflict’.Footnote ⁶¹ The words suggested that the nexus had been part of customary law at some earlier moment in time. Professor Cassese, writing in the Journal of International Criminal Justice several years after the Tadić jurisdictional decision, criticized a Chamber of the European Court of Human Rights for assuming that there was no nexus between crimes against humanity and armed conflict in the late 1940s. He said it was ‘only later, in the late 1960s, that a general rule gradually began to evolve, prohibiting crimes against humanity even when committed in time of peace’, and that the rule became crystallized and ‘indisputable’ with the 1995 decision of the Appeals Chamber.Footnote ⁶²

Eichmann was convicted of crimes against humanity pursuant to a provision that did not require a nexus with armed conflict and with respect to acts perpetrated prior to September 1939. Here is the relevant passage in the judgment of the District Court of Jerusalem:

Paragraph 65 of the decision, to which paragraph 185 refers, makes clear that these were acts perpetrated prior to September 1939. Consequently, Eichmann stands as the first conviction for crimes against humanity committed without a formal link to armed conflict. Indeed, Eichmann's acts in early 1939 remain, to this day, the earliest to underpin a conviction for crimes against humanity by any tribunal, national or international.

This observation is all the more significant in that Eichmann is a judgment whose dependence upon international law is unquestioned, given that the Israeli court was exercising universal jurisdiction. The American military tribunals, on the other hand, were enforcing law as an occupying army acting in an exercise of territorial jurisdiction. Their claim to be genuinely international tribunals is subject to caution, and uncertainty about their status has often been reflected in case law.Footnote ⁶⁴ This only enhances the significance of Eichmann, although it should be noted that the judgment does not appear to have been relied upon subsequently as authority for the disappearance or absence of the nexus between crimes against humanity and armed conflict.

4. Nullum crimen sine lege

Before the International Military Tribunal, the Nazi defendants raised the objection that they were being charged with offences that did not exist in criminal law at the time of their alleged perpetration. The challenge focused on crimes against peace rather than crimes against humanity,Footnote ⁶⁵ and was largely based upon a legal opinion prepared by Carl Schmitt.Footnote ⁶⁶ There were similar unsuccessful attacks on the legitimacy of the subsequent proceedings held before the American military tribunals.Footnote ⁶⁷ Eichmann, predictably, returned to the same arguments. It was common ground that the Nazis and Nazi Collaborators (Punishment) Law was both retroactive and extraterritorial, a point confirmed as early as 1953.Footnote ⁶⁸

The District Court began by citing an early decision of the Supreme Court of Israel dealing with legislation unrelated to the Eichmann case. In that ruling, the Court had rejected a challenge to a criminal statute with retroactive effect, noting that the rule against ex post facto prosecutions did not apply where the prohibition was foreseeable to the perpetrator. For the District Court, the Nazi acts

The judges observed that the

The District Court went on to cite the famous pronouncement of the International Military Tribunal that ‘the maxim nullum crimen sine lege is not a limitation of sovereignty, but it is in general a principle of justice’.Footnote ⁷¹ It also invoked a number of precedents of postwar European courts, including those of Germany. Furthermore, it cited pronouncements by the United States Military Tribunals in the subsequent proceedings.

Unfortunately, the Supreme Court of Israel recast the issue by declaring that the principle nullum crimen sine lege ‘insofar as it negates penal legislation with retroactive effect, has not yet become a rule of customary international law’.Footnote ⁷² The Court proceeded to discuss provisions of constitutional law, or their absence in the case of the United Kingdom, on the subject of retroactive criminal legislation. In effect, it was reasoning with regard to comparative constitutional law rather than customary international law. A proper international-law analysis might have begun with Article 11(2) of the Universal Declaration of Human Rights, which affirms the nullum crimen principle:

There was much discussion of the Nuremberg trial when Article 11(2) was being drafted by the Third Committee of the United Nations General Assembly in 1948. Many delegates insisted that the provision should not be interpreted in such a way as to challenge the legitimacy of the proceedings before the International Military Tribunal.Footnote ⁷⁴ A fair reading of the debates leads to the conclusion that the prosecution of Nazis for war crimes, crimes against humanity, and genocide is in no way incompatible with the nullum crimen rule, as set out in the Universal Declaration.

The Universal Declaration of Human Rights is widely viewed as a codification of customary international law.Footnote ⁷⁵ The circumstances of its drafting confirm this role, as do the constant references to this seminal instrument in treaties, General Assembly resolutions, and other sources of law, be they ‘hard’ or ‘soft’. At the time of the Eichmann judgments, some academic commentators tried to dismiss the argument about retroactivity by contending that the Universal Declaration of Human Rights was ‘not binding’,Footnote ⁷⁶ a claim that was similar, although not identical, to the approach of the Supreme Court. Dismissing the Universal Declaration of Human Rights in this way woefully understates its legal significance. In any event, all of this was entirely gratuitous and unnecessary because Article 11(2) of the Universal Declaration does not impeach the validity of the Eichmann prosecution. The better view, then, was that taken by the District Court, one that was itself rooted in the profound and eternal words of the International Military Tribunal.

Defendants at modern-day international criminal tribunals, for Rwanda, the former Yugoslavia, Sierra Leone, and Cambodia, continue to raise objections based upon retroactivity. They have been no more successful than their Nazi predecessors. The flexible approach to legislation concerning serious crimes that is given retroactive effect is also confirmed in the case law of bodies like the European Court of Human Rights. The Strasbourg Court has taken the view that there is no breach of the principle of legality providing that the law is foreseeable and accessible. In addition to rejecting challenges concerning prosecutions for World War Two-era crimes,Footnote ⁷⁷ the Court has also refused to intervene when other offences involving attacks on human dignity, such as rape, are concerned.Footnote ⁷⁸ Today's judges take an approach that is broadly comparable to that of the Israeli courts in Eichmann.

With respect to retroactivity, Eichmann is also an important precedent because it represents the earliest conviction for the crime of genocide (prosecuted as ‘crimes against the Jewish people’) as defined in the 1948 Convention. Nazi defendants elsewhere were generally prosecuted for crimes against humanity. A few postwar Polish prosecutions employed the term ‘genocide’, but this was prior to the 1948 codification and the precise definition of the offence is not clear. Probably genocide was being used by the Polish courts more or less as a synonym for crimes against humanity using nomenclature inspired by Lemkin's 1944 book.Footnote ⁷⁹Eichmann, then, constitutes a precedent for the criminalization of genocide not only prior to the adoption of the definition in the Convention, on 9 December 1948, and to recognition of genocide as an international crime by the United Nations General Assembly, on 11 December 1946,Footnote ⁸⁰ but even before the word itself first appeared in Axis Rule in Occupied Europe, in November 1944.Footnote ⁸¹

To non-specialists, the proposition that Eichmann committed genocide during the Second World War must seem uncontroversial. Yet the argument that the principle of legality is violated by using the term ‘genocide’ to describe acts prior to adoption of the Convention in 1948 retains its salience, albeit in another context. In 2003 in the United Kingdom, a draft answer to a Parliamentary Question said that

The issue returned on 7 June 2006, when government spokesman Geoff Hoon replied to a parliamentary inquiry:

The British government was not talking about the Holocaust. The reference, obviously, was to the attacks on the Armenians that took place in Ottoman Turkey in 1915. But if it is acceptable to convict Eichmann of genocide perpetrated in 1941, why should the term not also apply to those responsible for the Armenian atrocities?

5. Mala captus bene detentus

One of the most contentious issues in the Eichmann case is the way in which the accused was brought before the Court. Eichmann's abduction was condemned by the United Nations Security Council,Footnote ⁸⁴ although subsequently Argentina and Israel issued a statement indicating that their dispute had been resolved.Footnote ⁸⁵ A sour taste has remained, however. When the United Nations Sub-Committee on the Prevention of Discrimination and the Protection of Minorities was debating what has come to be known as the ‘Whitaker Report’ on genocide, in the 1980s, one member said that all references to the Eichmann trial should be removed because of the circumstances of his abduction.Footnote ⁸⁶ This is an extreme position, however, and many, then and now, would be comfortable with the opinion of Karl Jaspers that ‘the arrest of Eichmann in Argentina was contrary to international law, although it was no doubt warranted from a moral and political point of view’.Footnote ⁸⁷

Eichmann contended that the Court had no jurisdiction to try him because it ‘ought not to lend its support to an illegal act of the State’.Footnote ⁸⁸ The District Court made an interlocutory ruling rejecting Eichmann's objection,Footnote ⁸⁹ but returned to the issue in its final judgment.Footnote ⁹⁰ It may have painted a somewhat too unequivocal view of the case law on the subject, referring to precedents from the courts of the United States, primarily, and a few from Britain affirming the male captus bene detentus principle by which the circumstances of a suspect's arrest do not compromise the jurisdiction of the trial court. The District Court also attached considerable importance to the settlement reached by Israel and Argentina, insisting that the accused could no longer invoke a breach given that ‘Argentina had forgiven Israel for that violation of her sovereignty, so that there no longer subsisted any violation of international law’. Eichmann could not therefore invoke rights that Argentina had waived.Footnote ⁹¹ As the District Court noted:

Case law of domestic courts was and remains divided on whether jurisdiction may be exercised when an accused has been kidnapped by law-enforcement agents of a foreign state or by freelance bounty hunters.Footnote ⁹³ Thirty-five years after Eichmann was snatched by Mossad agents, a similar issue presented itself to the International Criminal Tribunal for the former Yugoslavia. Dragan Nikolić, against whom an indictment by the Tribunal had been issued, was kidnapped inside Serbia and then taken to Bosnia and Herzegovina, where he was handed over to the custody of the Stabilization Force in Bosnia and Herzegovina, which in turn delivered him to the United Nations Tribunal.

When Nikolić challenged the jurisdiction of the Tribunal, the Trial Chamber reviewed the case law of various national courts, noting that a ‘classic example of a decision close to the application of the principle of male captus, bene detentus is the case of Eichmann’.Footnote ⁹⁴ Unlike the District Court, however, it found national practice to be ‘rather diverse’,Footnote ⁹⁵ although it rejected the motion and upheld the jurisdiction of the Tribunal. The Appeals Chamber also acknowledged the varying approaches of domestic courts, but turned to decisions involving ‘the same kinds of crimes as those falling within the jurisdiction of the International Tribunal’.Footnote ⁹⁶ There were two relevant cases, one of them being Eichmann. The other was the French Barbie case.Footnote ⁹⁷ The Appeals Chamber noted that the Israeli courts had decided to exercise jurisdiction over Eichmann because he was ‘a fugitive from justice’ who was charged with ‘crimes of a universal character . . . condemned publicly by the civilized world’.Footnote ⁹⁸ Moreover, because Argentina had condemned the violation of sovereignty and waived its claims, no violation of international law could be sustained.Footnote ⁹⁹ It found that the nature of the offence was also relevant to the acceptance of jurisdiction over Klaus Barbie by French courts, despite his abduction.

Thus, although it was difficult to generalize given the inconsistency of state practice, the Appeals Chamber identified two principles:

Although it followed the Eichmann precedent, it took the point one step further by insisting that it could not decline jurisdiction given the nature of the offences.Footnote ¹⁰¹ There had been debate as to whether there had been any complicity of the Stabilization Force in Bosnia and Herzegovina in the abduction; the Appeals Chamber said jurisdiction should be exercised even if this had been the case. Eventually, Nikolić was convicted and sentenced to twenty years’ detention.Footnote ¹⁰²

The Appeals Chamber did not allude to its first consideration of Eichmann, in the 1995 Tadić jurisdictional decision. Of course, Tadić did not raise a mala captus bene detentus issue, but it did concern the argument about standing. When Tadić objected to the manner in which the Tribunal was created, by Security Council resolution, the Trial Chamber cited Eichmann as authority for the proposition that to the extent that the establishment of the Tribunal raised an issue of state sovereignty, an individual lacked the legal interest to contest the matter:

The Appeals Chamber disagreed. Referring to several cases, including Eichmann, it said:

Yet two paragraphs later, the Appeals Chamber insisted that ‘the right to plead State sovereignty does not mean, of course, that his plea must be favorably received’ and it endorsed Eichmann in support of the importance of prosecuting international crimes.Footnote ¹⁰⁵ Here it was reasoning along the same lines as the first of the arguments sustained by the Appeals Chamber in Nikolić. It is an exaggeration to suggest that in Nikolić the Appeals Chamber contradicted the position it took in Tadić. Footnote ¹⁰⁶

Both Eichmann and Nikolić were isolated cases. But confronted with a more systematic practice of abductions, courts might be more inclined to reject the mala captus argument and refuse to exercise jurisdiction in order to sanction flagrant violations of the human rights of suspects by law-enforcement authorities. In recent years, illegal rendition of suspects, often with the connivance of the authorities of the state where the person is detained, has not been such an unusual event in the ‘war on terror’. Individuals have been abducted to secret detention centres in Poland and Romania, or to relatively more public places like Guantánamo Bay. To the argument that there is a judicial principle denying jurisdiction in order to discourage kidnapping à la Eichmann, it may be answered that that this may only drive the practice of illegal rendition even further into the shadows.

One of the men responsible for the terrorist attacks on the American embassies in Nairobi and Dar es Salaam in 1998 was apprehended in South Africa and deported to New York to stand trial before all judicial proceedings had been exhausted. In particular, the suspect had not had the opportunity to insist upon assurances that capital punishment would not be imposed were he to be extradited. The Constitutional Court of South Africa concluded that ‘[t]he handing over of Mohamed to the United States government agents for removal by them to the United States was unlawful’.Footnote ¹⁰⁷ The trial judge in the United States informed the jury about the South African court's conclusion, information that probably influenced its decision to reject capital punishment as an appropriate sanction. The trial judge had even authorized the American legal-aid system to support the litigation before the South African Constitutional Court on behalf of the defendant.Footnote ¹⁰⁸

An accused person brought unlawfully into a jurisdiction is not bereft of rights, as the Mohamed case shows. Some courts may be prepared to entertain applications to decline jurisdiction under the circumstances, especially when offences of lesser seriousness are involved. But it cannot be said that the stance taken by the courts in Eichmann was unusual, or that it reflected an extreme view that is now outdated. Speaking at Chatham House in 2006, the High Commissioner for Human Rights, Louise Arbour, referred to Eichmann when she discussed what she called the ‘erosion’ of the mala captus bene detentus principle. Yet, she conceded, ‘[r]easonable people may disagree about the appropriate framework that should govern the apprehension and transfer to trial of an international terrorist suspect, war criminal or torturer’.Footnote ¹⁰⁹

Were a case similar to Eichmann to arise today, there would surely be complaints to international human rights bodies that did not exist in 1960. Israel would undoubtedly be condemned for the abduction. But it seems unlikely they would urge release of a prisoner as an appropriate remedy, especially for an atrocity crime that itself constituted the most profound attack on human dignity.Footnote ¹¹⁰ Indeed, today there would also be many voices clamouring that the imperatives of bringing alleged perpetrators of atrocities to book invariably outweigh concerns with procedural human rights, especially if the state where the kidnapping had taken place might have been providing a safe haven from justice. The point here is not to attempt to resolve the debate, or to suggest that the positions are clearer than they may be, but only to observe that the approach taken in Eichmann is not inconsistent with our contemporary understanding.

6. Universal jurisdiction

Returning to New York City from Nuremberg after delivery of the judgment of the International Military Tribunal, Raphael Lemkin went to work within the United Nations General Assembly, then meeting in the second part of its first session in October 1946, to correct what he considered to be the shortcomings of the Nuremberg precedent, as discussed above. Besides eliminating the war nexus with crimes against humanity, he had another objective: recognition of genocide as an international crime over which states could exercise universal jurisdiction; that is, without regard to whether the crime had been committed on their territory or by their citizens.

The draft resolution submitted by India, Cuba, and Panama, but prepared by Lemkin, read as follows:

In other words, the resolution would have legitimized the exercise of universal jurisdiction over genocide, something that was not yet acceptable under international law, as Lemkin saw it, because the crime was ‘within the exclusive territorial jurisdiction of the judiciary of every State concerned’.

Lemkin's universal-jurisdiction language did not survive the negotiations of the text of General Assembly Resolution 96(I). The travaux préparatoires are not complete enough to indicate where the problems with this lay. But the omission of Lemkin's proposal on universal jurisdiction was no oversight, as became evident two years later when the text of the draft Genocide Convention was being debated. The two superpowers were quite strongly opposed to the notion.Footnote ¹¹² Each was probably afraid of being on the receiving end of universal jurisdiction exercised by the other. The Soviets contended that no exception be made to the principle of territorial jurisdiction, insisting that this alone was compatible with respect for national sovereignty.Footnote ¹¹³ In the General Assembly discussions, the United States delegate said that ‘[t]he principle of universal punishment was one of the most dangerous and unacceptable of principles’.Footnote ¹¹⁴ An Iranian proposal of explicit recognition of universal jurisdiction within the Convention was decisively defeated, with six in favour, twenty-nine opposed, and ten abstentions.Footnote ¹¹⁵ The General Assembly finally reached agreement on what became Article 6 of the Convention:

Eichmann relied on the General Assembly debates and on the text of Article 6 of the Convention when he challenged the Jerusalem Court's jurisdiction:

Dismissing his argument, the District Court recalled the words of the International Court of Justice. In its 1951 Advisory Opinion, the World Court had declared that ‘the principles underlying the Convention are principles which are recognized by civilized nations as binding on all states, even without any conventional obligation’. For the District Court, there was an important distinction between such principles, which applied even prior to adoption of Resolution 96(I) in 1946, and Article 6 of the Convention, ‘which comprises a special provision undertaken by the contracting parties with regard to the trial of crimes that may be committed in the future’.Footnote ¹¹⁷

As they had done with nullum crimen sine lege, the Israeli judges were navigating in the legal twilight zone of retroactive application of general principles of law, or of rules of customary international law, both of them valid as normative sources of international law even in the absence of a treaty text.Footnote ¹¹⁸ Here, uncomfortably, there was a treaty text that actually inferred the contrary. It was an implication only, because the rejection of universal jurisdiction was not apparent from a literal reading of Article 6 the Genocide Convention. One needed to pry open the negotiating history to understand the widespread resistance to the concept.

Conscious of the shortcomings of a purely literal interpretative approach, the District Court attempted to demonstrate that the drafters of Article 6 of the Convention had not intended to confine the prosecution of genocide to the territorial state. The Court cited a statement in the report of the Sixth Committee of the General Assembly, saying that Article 6 was not meant to limit the right of states to try their own nationals for acts committed outside the state. Turning to commentaries on the Convention,Footnote ¹¹⁹ the Court said that Article 6 imposed a duty of punishment, but did not impinge upon jurisdictional rules in criminal matters applicable within different states. According to the Court, territorial jurisdiction was nothing more than a ‘compulsory minimum’, a conservative compromise that could be contrasted with the more exigent provisions of the Geneva Conventions, which imposed a rule of compulsory universal jurisdiction.Footnote ¹²⁰ It held:

Thus, the District Court took the view that Article 6 of the Genocide Convention is permissive of territorial jurisdiction, but that it does not prevent universal jurisdiction. The Supreme Court echoed this pronouncement with the briefest of comments.Footnote ¹²²

At first blush this view does not seem illogical, except that it makes very little sense to codify in a treaty the right of a sovereign state to exercise jurisdiction over a crime committed on its territory if the intent is to enact a broader permissive norm. Ultimately, it is a completely contrived explanation that transforms Article 6 into a superfluous provision as well as one that is totally inconsistent with its negotiating history. Referring to paragraph 25 of the judgment at first instance, one writer said ‘the court's inability to “deduce any tendency” against the universality principle amongst the parties to the Convention itself discloses remarkable judicial myopia’.Footnote ¹²³

Supporters of Israel in the legal community raised the argument that Eichmann himself was not entitled to complain about the exercise of jurisdiction by Israel. That right, they said, could only be invoked by Germany, his state of nationality.Footnote ¹²⁴ In support of the claim that in the absence of objection no prohibitive rule of international law could be presumed, the Lotus case of the Permanent Court of International Justice was invoked.Footnote ¹²⁵ The judges preferred the higher ground, arguing that Israel was entitled to prosecute on the basis of principle.

Professor Fawcett asserted in his article on the Eichmann trial that ‘Article VI is not easy to interpret’.Footnote ¹²⁶ There is certainly a good case to be made that Article 6 of the Genocide Convention is not an exhaustive statement of jurisdiction over genocide. The drafting history shows an intent not to exclude jurisdiction by a state over its own nationals for crimes committed outside its territory, lending support to the view that Article 6 is not an exhaustive enumeration.Footnote ¹²⁷ But if so-called active-personality jurisdiction may be exercised over genocide even if it is not set out explicitly in the Convention, why did the drafters of the treaty even bother to codify territorial jurisdiction? The drafting history of the Convention leaves the clear impression that in specifying the two options, of territorial jurisdiction and the jurisdiction of a yet-to-be-created international criminal court, the General Assembly also affirmed that universal jurisdiction was not an option. At the time of the Eichmann trial and with reference to the travaux préparatoires of the Convention, A.R. Carnegie confirmed ‘that there is no unanimity as to the existence of a universal jurisdiction over genocide in customary international law’ and that ‘it is unsafe to assume the existence of any right to exercise a wide-ranging jurisdiction over genocide’.Footnote ¹²⁸

The Court's comment that the omission of universal jurisdiction from Article 6 of the Convention is a ‘grave omission’ presents some interest. But if, as the Court concluded, Article 6 does not exclude universal jurisdiction, then the only purpose that would be served by incorporating it would be to make it mandatory. This is the principle aut dedere aut judicare. The drafting history does not indicate that states seriously contemplated such an obligation, which would require them to prosecute perpetrators of genocide found within their jurisdiction, regardless of where the crime was committed or the nationality of the offender. The Iranian resolution in the Sixth Committee of the General Assembly, which was so massively defeated, was intended only to authorize the exercise of universal jurisdiction, not to require it. Lemkin's 1946 draft of what became General Assembly Resolution 96(I) was along similar lines.

Even if the argument that Article 6 of the Convention is not exhaustive is accepted, because the provision does not expressly authorize universal jurisdiction, it still remains necessary to find a basis for universal jurisdiction over genocide. There are three possible sources under international law: treaty, custom, and general principles of law recognized by civilized nations.Footnote ¹²⁹ When the District Court cited the Advisory Opinion of the International Court of Justice, it referred to a discussion that rooted the prohibition of genocide in ‘principles which are recognized by civilized nations as binding on all States, even without any conventional obligation’. The question that arises is whether this reference in the Advisory Opinion is to custom or to general principles. The language used in the reference taken from the Advisory Opinion suggests general principles, but it is not uncommon to think that the International Court of Justice based its conclusion on customary law. This was the view of the District Court.Footnote ¹³⁰ The Supreme Court, on the other hand, set the discussion within the context of general principles, which it described as ‘a common denominator for the judicial systems of numerous countries’.Footnote ¹³¹

Customary law requires evidence of state practice and of a subjective recognition of the existence of a binding rule of international law. Obviously Eichmann was the first prosecution ever for genocide pursuant to universal jurisdiction, so neither of these two components of custom was at all evident. Often, evidence of custom will be drawn from debates in the General Assembly and from the negotiation of international treaties, because this is where the opinions of states about their legal obligations are particularly visible. From this standpoint, the rejection by the General Assembly of universal jurisdiction over genocide in the 1948 session is a relevant fact that challenges the existence of a custom favouring universal jurisdiction.

The District Court also took the view that it was entitled to exercise jurisdiction under the ‘protective principle’, ‘which gives the victim nation the right to try any who assault its existence’.Footnote ¹³² The Court cited Hugo Grotius and other authorities:

On appeal, the Supreme Court of Israel, while noting full agreement with the District Court on the protective principle of jurisdiction, insisted upon the universal-jurisdiction argument, as this applied not only to Jews, in whose name Israel claimed to exercise protective jurisdiction, but also to Poles, Slovenes, Czechs, and Gypsies.Footnote ¹³⁴

There has been some suggestion that Israel was exercising a form of passive- personality jurisdiction rather than universal jurisdiction as such. The narrowing of the genocide definition to ‘the Jewish people’, rather than to ‘national, ethnical, racial and religious groups’ in a general sense, may imply such a result. The District Court of Jerusalem explored the passive personality jurisdiction option as well as universality. However, the Court of Appeal made it clear that the basis of jurisdiction was universality rather than a claim that Israel was entitled to act on behalf of all Jews. Writing at the time, Theodor Meron explained that ‘the passive personality element of jurisdiction over this crime is more apparent than real. The view may be held that in substance the principle underlying this provision is that of universality’.Footnote ¹³⁵

The pronouncements on universal jurisdiction in Eichmann are probably the most influential finding of the judgments. The legal reasoning was flimsy, defying clear evidence of the views of states, and yet it was almost immediately accepted as a precedent in international law. This is an astonishing feature of the development of the law of nations. Less than fifteen years earlier, in the United Nations General Assembly, the entire concept of universal jurisdiction for genocide had been rejected by an overwhelming majority. An eloquent decision in a deserving case issued by three judges in an ancient, obscure language was enough to reverse this.

The Eichmann precedent on universal jurisdiction stands essentially unchallenged to this day. It has been affirmed in United Nations reports,Footnote ¹³⁶ in the academic literature,Footnote ¹³⁷ and in case law of international criminal tribunals.Footnote ¹³⁸ Recently, the European Court of Human Rights rejected a challenge by a Serb being prosecuted in Germany for genocide under a form of universal jurisdiction. According to the Chamber of the Court:

This is essentially the same reasoning as that of the District Court in Eichmann, although the European Court of Human Rights does not cite the precedent.

Universal jurisdiction is a subject that generates more heat than light. In practice, it is rarely exercised, be it for genocide or other international crimes. The isolated examples provided since 1961 have almost invariably involved states with a particular interest in the offender, generally because of historic ties with the location of the crime. Canada is one of the poster children for universal jurisdiction, which it has exercised in the past for Nazis and now employs for Rwandan génocidaires. But its legislation requires as a precondition for exercise of jurisdiction that the accused person be present in Canada after the alleged offence was committed.Footnote ¹⁴⁰ Nor has Israel shown the slightest interest in prosecuting genocide cases under universal jurisdiction other than those resulting from Hitler's campaign to destroy the Jews of Europe.

7. Fairness of the proceedings

Various charges have been made as to the fairness of the proceedings. There can be no question, of course, of Eichmann's guilt, which he himself admitted:

Eichmann may have been banal, but he was also evil. Eichmann may have been a desk murderer, but he was more than a cog in the machine, an impression that seems to have been created by Hannah Arendt's legendary report. Perhaps his role in the Holocaust was exaggerated, yet his ferocious racism cannot be dismissed, as one of the prosecutors, Gabriel Bach, has continued to explain. His remarks were published at the insistence of Antonio Cassese in the International Journal of Criminal Justice.Footnote ¹⁴²

Certainly the trial was not without its flaws. But while Eichmann raised a number of objections to the proceedings, his counsel, Robert Servatius, was on the whole satisfied with the administration of justice in the case.Footnote ¹⁴³ ‘There is broad consensus in the vast amount of legal literature on the case, and particularly in the English and the German literature, that Eichmann had a fair trial’, writes Kai Ambos.Footnote ¹⁴⁴

One issue of concern at the time was the availability of defence witnesses. Eichmann argued that they should be given a safe conduct, failing which they would refuse to travel to Israel out of concern they would themselves be arrested and charged with war crimes. Some of them had provided affidavit evidence at proceedings in Germany in the 1940s that the Prosecutor sought to introduce in evidence. Eichmann's counsel insisted upon his right to cross-examine, but the Attorney-General would not give them a safe conduct.Footnote ¹⁴⁵ Nevertheless, the refusal to allow witnesses to travel to Jerusalem with a safe conduct continues to be raised by critics of the trial.Footnote ¹⁴⁶ According to Hannah Yablonka, this ‘was the only deviation of which everyone who wrote about the trial, whether in favour or against, disapproved’.Footnote ¹⁴⁷ It should be borne in mind that in national proceedings for ordinary crimes there is no general principle that defence witnesses who may be suspected of complicity or of responsibility for other crimes enjoy immunity from prosecution if they emerge from hiding in order to testify. An argument that this amounted to denial of a fair trial would get short shrift in most jurisdictions. Moreover, in Eichmann's case, it has never been demonstrated that the affidavit evidence and the absence of testimony on behalf of the defence, for whatever reason, significantly distorted the evidentiary picture presented in the course of the trial.

Something similar arose recently before the International Criminal Tribunal for Rwanda in the context of proceedings to transfer jurisdiction over indicted suspects from the United Nations Tribunal to the national courts of Rwanda. Rwanda had enacted legislation facilitating travel by witnesses to Rwanda under guarantees of immunity from search, seizure, arrest, or detention during their stay in Rwanda.Footnote ¹⁴⁸ Alternatively, the possibility of testifying by video-link, a mechanism that has been employed frequently by the International Tribunals, was also proposed. Video-link was obviously not an option in 1961. The Israeli court might have agreed to sit abroad so that the witnesses could be heard viva voce. The problem was addressed by requesting through diplomatic channels that a German examining magistrate question witnesses who would not travel to Israel, usually with representatives of the parties being present.Footnote ¹⁴⁹

At the International Criminal Tribunal for Rwanda, the Appeals Chamber initially found that the domestic legal framework was not adequate to address the problem of availability of defence witnesses. It said that Rwanda's grant of immunity to witnesses who travelled from abroad to testify would not resolve problems of fairness because some witnesses would still be afraid to go to Rwanda, despite the guarantees.Footnote ¹⁵⁰ As for the possibility of video-link depositions, the Appeals Chamber said this was not

Eventually, the Appeals Chamber changed its position after Rwanda had enacted further legislative measures.Footnote ¹⁵²

There were also charges that the Prosecutor misbehaved, and that the general environment in Israel was not conducive to fair justice. For example, Prosecutor Hausner was said to have told reporters that he considered Eichmann to be a liar.Footnote ¹⁵³ A bill was proposed in the Knesset aimed at prohibiting any Israeli lawyer from assisting the Eichmann defence. The bill was not adopted. But when an Israeli provided advice to Eichmann's counsel, Robert Servatius, he was attacked in the media.Footnote ¹⁵⁴ Hannah Arendt chided the Prosecutor, Gideon Hausner, when he wrote that Eichmann could not be defended by an Israeli lawyer because ‘national emotions’ would conflict with ‘professional duties’.Footnote ¹⁵⁵

Objections have also been made because one of the three judges of the District Court of Jerusalem, Benjamin Halevi, had earlier ruled on Holocaust-related issues, including the personal role of Eichmann in the celebrated libel trial initiated by Rudolf Kastner.Footnote ¹⁵⁶ Although some may have felt this should have provoked his recusal in the Eichmann trial, it would be like disqualifying a judge at the International Criminal Tribunal for the former Yugoslavia who had heard one case because he or she would have adopted a view on the conflict and on some of the personalities involved. This is not a serious ground for recusal and, wisely, Eichmann's attorney, Robert Servatius, did not argue the point.

The most persistent challenge based upon fairness issues concerned the independence and impartiality of the judges themselves. Two decades after the trial had concluded, Matthew Lippmann still contended that ‘the presence of three Israeli judges lent credence to Eichmann's claim that he was not being given a fair trial’.Footnote ¹⁵⁷ In his preliminary motion following the reading of the indictment, Servatius challenged the composition of the Court. He did not question the personal integrity of any of the three judges sitting in the case, but argued that recusal might be warranted because ‘of a situation in which a judge himself, or a near relative, was hurt by the acts referred to in the indictment’. He noted that ‘the whole of the Jewish people was embroiled in the Holocaust’.Footnote ¹⁵⁸ Essentially, Servatius was arguing that Eichmann should not be tried before Jewish judges. The argument was rejected:

As Leslie Green noted, in his detailed consideration of this issue, ‘[i]f the argument of the defence on this ground had been conceded, it would have been virtually impossible for war criminals to be tried anywhere’.Footnote ¹⁶⁰

A somewhat similar issue was raised at the International Criminal Tribunal for the former Yugoslavia. The Bureau, made up of five senior judges, dismissed as ‘frivolous and abuse of process’ the challenges by accused Vojislav Šešelj to Judges Schomburg, Mumba, and Agius, members of the Trial Chamber assigned to his case, on grounds of nationality and religion. Šešelj said that the judges possess ‘certain personal characteristics which completely preclude them from being impartial’. He said that Germany, of which Judge Schomburg is a national, has ‘traditionally been hostile towards Serbia and the Serbian people’. Moreover, he argued that because Germany is a member of the North Atlantic Treaty Organization whose people ‘committed aggression against Serbia’, Judge Schomburg should be disqualified. Šešelj described Judges Mumba and Agius as ‘ardent and zealous Catholics’, adding that the Roman Catholic Church had ‘contributed to the destruction of Yugoslavia’. The Bureau said ‘the nationalities and religions of Judges are, and must be, irrelevant to their ability to hear the cases before them impartially’.Footnote ¹⁶¹

All three of the judges of the District Court had been born in Germany. All three immigrated to Palestine in 1933 following the Nazi takeover. In that sense, they might be deemed victims of Nazi anti-Semitism, although Servatius's challenge did not rely upon any allegation along these lines. In the 1990s, Thomas Buergenthal voluntarily recused himself from sitting in a case as a member of the United Nations Human Rights Committee concerning a French genocide denier. Buergenthal briefly explained that this was because he was himself a survivor of Auschwitz and Sachsenhausen, and he had lost his father, maternal grandparents, and many other family members to the Nazi Holocaust.Footnote ¹⁶² That a person in a judicial capacity feels uncertain about their ability to be an impartial judge because of such circumstances does not necessarily lead to a rule of general application, however. If anything, Eichmann probably benefited from the personal circumstances and backgrounds of the judges because they went to great lengths to ensure that the quality of justice was not strained.

Many writers at the time took the view that an international trial would have been preferable. Robert Woetzel wrote that:

Ian Brownlie felt that ‘[n]o doubt the majority of lawyers would agree with this conclusion’.Footnote ¹⁶⁴ Telford Taylor, who had led the American military prosecutions at Nuremberg, argued for an international trial in an article in the New York Times. Footnote ¹⁶⁵ Hannah Arendt said that ‘insofar as the crime was a crime against humanity, it needed an international tribunal to do justice to it’.Footnote ¹⁶⁶

The issue was theoretical, of course, because there was no serious initiative to create an international tribunal. Although pledged in Article 6 of the 1948 Genocide Convention, work on the project by the International Law Commission and a special committee established by the General Assembly was frozen in 1954. The dream of a permanent international criminal tribunal was a casualty of the Cold War. The initiative would only revive, slowly at first, during the 1980s. As Peter Papadatos, one of the observers sent by the International Commission of Jurists, said:

The argument that an international trial would have been preferable has a familiar ring in today's debates. With the growth of international justice in the 1990s and 2000s, the choice between national and international jurisdictions has frequently arisen. At the ad hoc international criminal tribunals, for the former Yugoslavia, Rwanda, and Sierra Leone, this issue was resolved by a simple rule giving primacy to the international institution over the national courts. The International Criminal Court, by contrast, is rooted in the principle of complementarity, whereby there is a presumption in favour of the national jurisdiction that can only be dislodged through a finding that it is unwilling or unable to proceed. In practice, the Court has tended to apply the rule narrowly, with the consequence that it tends to assume jurisdiction even when national judicial institutions are perfectly capable of doing the job. For example, it assumed jurisdiction over cases in Uganda despite the lack of any finding that the national courts were inadequate. The Court's intervention was more a question of a division of labour with which the Ugandan authorities were in full agreement.

The choice is not always one that can or should be made through a rigid rule. Important issues of policy are involved for which no single answer is satisfactory. There was great debate in 2004 following the arrest of Saddam Hussein about the appropriate forum for his trial. Despite calls for an international tribunal to undertake the task, the United States insisted on proceedings before the Iraqi High Tribunal.Footnote ¹⁶⁸ More recently, the issue has returned with respect to trials of Hissène Habré, for whom an internationalized institution is being proposed in place of the ordinary courts of Senegal, and Saif Al-Islam Gaddafi, who would himself prefer to be judged in The Hague by the International Criminal Court rather than by Libyan magistrates. In Rwanda, after initially refusing to transfer cases to the national courts, the International Criminal Tribunal eventually concurred. To be sure, the ability of national judges to deliver a fair trial in the volatile post-conflict context, or as part of a transitional regime, is a daunting test. Eichmann stands as a good example that the challenges can be overcome and equitable justice delivered.