As far as I can see, jurisprudence has at its disposal for treating this whole battery of questions only two categories, both of which, to my mind, are quite inadequate to deal with the matter. These are the concepts of “acts of state” and of acts “on superior orders.” At any rate, these are the only categories in terms of which such matters are discussed in this kind of trial, usually on the motion of the defendant. The theory of the act of state is based on the argument that one sovereign state may not sit in judgment upon another, par in parem non habet jurisdictionem. Practically speaking, this argument had already been disposed of at Nuremberg; it stood no chance from the start, since, if it were accepted, even Hitler, the only one who was really responsible in the full sense, could not have been brought to account a state of affairs which would have violated the most elementary sense of justice. However, an argument that stands no chance on the practical plane has not necessarily been demolished on the theoretical one. The usual evasions— that Germany at the time of the Third Reich was dominated by a gang of criminals to whom sovereignty and parity cannot very well be ascribed were hardly useful. For on the one hand everyone knows that the analogy with a gang of criminals is applicable only to such a limited extent that it is not really applicable at all, and on the other hand these crimes undeniably took place within a “legal” order. That, indeed, was their out standing characteristic.
Perhaps we can approach somewhat closer to the matter if we realize that back of the concept of act of state stands the theory of raison d'état. According to that theory, the actions of the state, which is responsible for the life of the country and thus also for the laws obtaining in it, are not subject to the same rules as the acts of the citizens of the country. Just as the rule of law, although devised to eliminate violence and the war of all against all, always stands in need of the instruments of violence in order to assure its own existence, so a government may find itself compelled to commit actions that are generally regarded as crimes in order to assure its own survival and the survival of lawfulness. Wars are frequently justified on these grounds, but criminal acts of state do not occur only in the field of international relations, and the history of civilized nations knows many examples of them—from Napoleon's assassination of the Duc d'Enghien, to the murder of the Socialist leader Matteotti, for which Mussolini himself was presumably responsible.
Raison d'état appeals—rightly or wrongly, as the case may be—to necessity, and the state crimes committed in its name (which are fully criminal in terms of the dominant legal system of the country where they occur) are considered emergency measures, concessions made to the stringencies of Realpolitik, in order to preserve power and thus assure the continuance of the existing legal order as a whole. In a normal political and legal system, such crimes occur as an exception to the rule and are not subject to legal penalty (are gerichtsfrei, as German legal theory expresses it) because the existence of the state itself is at stake, and no outside political entity has the right to deny a state its existence or prescribe how it is to preserve it. However—as we may have learned from the history of Jewish policy in the Third Reich—in a state founded upon criminal principles, the situation is reversed. Then a non-criminal act (such as, for example, Himmler's order in the late summer of 1944 to halt the deportation of Jews) becomes a concession to necessity imposed by reality, in this case the impending defeat. Here the question arises: what is the nature of the sovereignty of such an entity? Has it not violated the parity (par in parem non habet jurisdictionem) which international law accords it? Does the “par in parem” signify no more than the paraphernalia of sovereignty? Or does it also imply a substantive equality or likeness? Can we apply the same principle that is applied to a governmental apparatus in which crime and violence are exceptions and borderline cases to a political order in which crime is legal and the rule?
Just how inadequate juristic concepts really are to deal with the criminal facts which were the subject matter of all these trials appears perhaps even more strikingly in the concept of acts performed on superior orders. The Jerusalem court countered the argument advanced by the defense with lengthy quotations from the penal and military lawbooks of civilized countries, particularly of Germany; for under Hitler the pertinent articles had by no means been repealed. All of them agree on one point: manifestly criminal orders must not be obeyed. The court, moreover, referred to a case that came up in Israel several years ago: soldiers were brought to trial for having massacred the civilian inhabitants of an Arab village on the border shortly before the beginning of the Sinai campaign. The villagers had been found outside their houses during a military curfew of which, it appeared, they were unaware. Unfortunately, on closer examination the comparison appears to be defective on two accounts. First of all, we must again consider that the relationship of exception and rule, which is of prime importance for recognizing the criminality of an order executed by a subordinate, was reversed in the case of Eichmann's actions. Thus, on the basis of this argument one could actually defend Eichmann's failure to obey certain of Himmler's orders, or his obeying them with hesitancy: they were manifest exceptions to the prevailing rule. The judgment found this to be especially incriminating to the defendant, which was certainly very understandable but not very consistent. This can easily be seen from the pertinent findings of Israeli military courts, which were cited in support by the judges. They ran as follows: the order to be disobeyed must be “manifestly unlawful”; unlawfulness “should fly like a black flag above [it], as a warning reading, ‘Prohibited.’ In other words, the order, to be recognized by the soldier as “manifestly unlawful,” must violate by its unusualness the canons of the legal system to which he is accustomed. And Israeli jurisprudence in these matters coincides completely with that of other countries. No doubt in formulating these articles the legislators were thinking of cases in which an officer who suddenly goes mad, say, commands his subordinates to kill another officer. In any normal trial of such a case, it would at once become clear that the soldier was not being asked to consult the voice of conscience, or a “feeling of lawfulness that lies deep within every human conscience, also of those who are not conversant with books of law… provided the eye is not blind and the heart is not stony and corrupt.” Rather, the soldier would be expected to be able to distinguish between a rule and a striking exception to the rule. The German military code, at any rate, explicitly states that conscience is not enough. Paragraph 48 reads: “Punishability of an action or omission is not excluded on the ground that the person considered his behavior required by his conscience or the prescripts of his religion.” A striking feature of the Israeli court's line of argument is that the concept of a sense of justice grounded in the depths of every man is presented solely as a substitute for familiarity with the law. Its plausibility rests on the assumption that the law expresses only what every man's conscience would tell him anyhow.
If we are to apply this whole reasoning to the Eichmann case in a meaningful way, we are forced to conclude that Eichmann acted fully within the framework of the kind of judgment required of him: he acted in accordance with the rule, examined the order issued to him for its “manifest” legality, namely regularity; he did not have to fall back upon his “conscience,” since he was not one of those who were unfamiliar with the laws of his country. The exact opposite was the case.