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Prezi Flo

Droit
by

Quentin Girard

on 17 July 2011

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Transcript of Prezi Flo

International Law The Eichmann
Trial 50th
Anniversary Presentation
18th of July 2011 By Florence Dossche I. Eichmann’s Biography 1932: Member of Austrian Nazi Party + SS;
1934: Security Service – ‘Jewish specialist’;
1939: Head of Gestapo Jewish’s section;
1942: Wannsee Conference – planning
‘Final Solution’
leading role in coordinating Jews’ deportation & extermination;
approved Zyklon-B’s use;
insuring steady supply of trainloads of Jews to killing centres;
1946: Arrested by the US + Escape;
1950: Fled to Argentina;
1960: Arrested by the Mossad / 1961-2: Trialled & executed. II. Issues at Stake Abduction + Male Captus, Bene Detentus principle (or the rule of non-inquiry)
Abduction Extradition
Abduction = Violation of IL
State Responsibility
Male Captus, Bene Detentus Rule
State Practice Jurisdiction of the Israeli Court
Universal Jurisdiction
Protective and Passive Nationality Principle II. Abduction Abduction Extradition:
No voluntary basis (>< int’l cooperation – on demand)
= irregular return of suspects from one territory to another by unlawful methods II. Abduction (ctd) Abduction = Violation of Int’l Law: State Sovereignty (focus):
Article 2(4) UN Charter : ‘All Members shall refrain in their int’l relations from the threat or UF against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the UN’
Lotus Case: ‘the first and foremost restriction imposed by int’l law upon a State is that, failing the existence of a permissive rule to the contrary , it may not exercise its power in any form in the territory of another State Int’l Human Rights Law
Art.9 UDHR & Art.9(1) ICCPR (‘no one shall be subjected to arbitrary arrest, detention’)
HRC – Lopez’s case: ‘(…) violations of the (ICCPR), in particular of: (…) Art.9(1), because the act of abduction (…) constituted an arbitrary arrest and detention’; Extradition treaty (not in Eichmann’s case) II. Abduction (ctd) State Responsibility (SR)
Conditions: IWA + Attribution
 Mossad = attributable to Israel?
SC Rslt138: ‘Eichmann’s capture = violation of sovereignty’
Int’l Law Commission (Draft Articles on Responsibility of States for IWA): Art.8 and 11 (next ppt) II. Abduction (ctd) State Responsibility (SR) (ctd) Int’l Law Commission (Draft Articles on Responsibility of States for Internationally Wrongful Act):

Article 8 – Conduct directed or controlled by a State
The conduct of a person or group of persons shall be considered an act of a State under int’l law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.

Article 11 – Conduct acknowledged and adopted by a State as its own
Conduct which is not attributable to a State under the preceding articles shall nevertheless be considered an act of that State under int’l law if and to the extent that the State acknowledges and adopts the conduct in question as its own. II. Abduction (ctd) If State Responsibility  ILC Draft Articles:
Art.30: Cease IWA
Art.31: Reparation (for abduction = return of the abducted)
BUT Israel held the trial of Eichmann
Male Captus, Bene Detentus
Principle of non-inquiry II. Abduction (cdt) Male Captus, Bene Detentus: Past/Present
General condamnation by scholars
Example: Harvard Research Draft Convention on Jurisdiction with Respect to Crime, Art.16:
“no State shall prosecute or punish any person who has been brought within its territory or a place subject to its authority by recourse to measures in violation of int’l law or int’l convention without first obtaining the consent of the State or States whose rights have been violated by such measures.’
No uniform State Practice II. Abduction III. Jurisdiction
A. Universal Jurisdiction 1950 Nazi and Nazi Collaborators (Punishment) Law
1948 Convention on the Prevention and Punishment of the Crime of Genocide III. Jurisdiction
A. Universal Jurisdiction Article VI, 1948 Genocide Convention :

‘Persons charged with genocide or any of the other acts enumerated in article 3 shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such int’l penal tribunal (…)’. Territorial Jurisdiction for domestic courts
[ Or Int’l Jurisdicton for Int’l Tribunal (ICC) ] III. Jurisdiction
A. Universal Jurisdiction A-G Israel v Eichmann (1968 36 ILR 5), District Court, Jerusalem:

1951 Advisory Opinion of the ICJ: ‘the principles underlying the Convention are principles which are recognised by civilized nations as binding on all States, even without any conventional obligation’;

‘These crimes which afflicted the whole of mankind and shocked the conscience of nations are grave offenses against the law of nations (‘delicta juris gentium’). Therefore, so far from int’l law negating or limiting the jurisdiction of countries with respect to such crimes, in the absence of an int’l court, the int’l law is in need of the judicial and legislative authorities of every country, to give effect to its penal injunctions and to bring criminal to trial. The jurisdiction to try crimes under int’l law are universal’ (para 12);

The ‘power to try and punish a person [. . .] is vested in every State regardless of the fact that the offense was committed outside its territory by a person who did not belong to it’ (p.298) III. Jurisdiction
A. Universal Jurisdiction Audacious Interpretation
Contra Legem
Exaggeration of CIL’s interpreration (at the time)

BUT remained relatively unchallenged!

TODAY: prohibition of genocide = ius cogens, obligation erga omnes) III. Jurisdiction
A. Universal Jurisdiction Increasing domestic case law based on universal jurisdiction III. Jurisdiction
B. Other Jurisdictions Protective/Security Jurisdiction
Problem: Israel did not exist during WWII

Passive Nationality Jurisdiction
Not very accepted at the time
Lotus Case: rejection of that jurisdiction Conclusion Dubious legal reasoning – unsatisfactory legally speaking

Abduction – tolerated at the time, but:
in violation of int’l law (= 1 IWA) +
failure to repare the IWA (= 1 IWA)
 = 2 IWA.

Jurisdiction:
Universal: illegal at the time (>< today) but legitimate;
Security: not accepted at the time;
Passive Nationality: not accepted at the time. Thank you
for your attention Bibliography Arendt, Hannah, Eichmann in Jerusalem: A Report on the Banality of Evil (Penguin Books, 1977)
Cryer, Robert, Hakan Friman, Darryl Robinson and Elizabeth Wilmshurst, An introduction to international criminal law and procedure (Cambridge University Press, 2007)
Fournet, Caroline, ‘The Universality of the Prohibition of the Crime of Genocide, 1948-2008’ (2009) 19(2) International Criminal Justice Review 132.
Hall, Stephen, Principles of International Law (LexisNexis Butterworth, 3rd ed, 2011)
Lipstadt, Deborah E, Denying the Holocaust: the Growing Assault on Truth and Memory (Plume, 1993)
Schabas, William A, Genocide in International Law: the Crime of Crimes (Cambridge University Press, 2nd ed, 2009).
Simbeye, Yitiha, Immunity and International Law (Ashgate Publishing, 2005)
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