International law

Illustrated title page "Hugo the Great of the Truth of the Christian Worship." Along with the earlier works of Francisco de Vitoria and Alberico Gentili, Hugo Grotius laid the foundations for international law, based on natural law.

 

The First Geneva Convention (1864) is one of the earliest formulations of international law

International law is the set of rules generally regarded and accepted in relations between nations. It serves as a framework for the practice of stable and organized international relations. International law differs from state-based legal systems in that it is primarily applicable to countries rather than to private citizens. National law may become international law when treaties permit national jurisdiction to supranational tribunals such as the European Court of Human Rights or the International Criminal Court. Treaties such as the Geneva Conventions may require national law to conform to respective parts.

International law is consent-based governance. This means that a state member may choose to not abide by international law, and even to break its treaty. This is an issue of state sovereignty. International laws are consent-based. Violations of customary international law and peremptory norms (jus cogens) can lead to wars.

History

Sir Alberico Gentili is regarded as the Father of international law.

The current order of international law, the equality of sovereignty between nations, was formed through the conclusion of the "Peace of Westphalia" in 1648. Prior to 1648, on the basis of the purpose of war or the legitimacy of war, it sought to distinguish whether the war was a "just war" or not. This theory of power interruptions can also be found in the writings of the Roman Cicero and the writings of St. Augustine. According to the theory of armistice, the nation that caused unwarranted war could not enjoy the right to obtain or conquer trophies that were legitimate at the time.
 
The 17th, 18th and 19th centuries saw the growth of the concept of the sovereign "nation-state", which consisted of a nation controlled by a centralised system of government. The concept of nationalism became increasingly important as people began to see themselves as citizens of a particular nation with a distinct national identity. Until the mid-19th century, relations between nation-states were dictated by treaty, agreements to behave in a certain way towards another state, unenforceable except by force, and not binding except as matters of honor and faithfulness. But treaties alone became increasingly toothless and wars became increasingly destructive, most markedly towards civilians, and civilised peoples decried their horrors, leading to calls for regulation of the acts of states, especially in times of war.

The modern study of international law starts in the early 19th century, but its origins go back at least to the 16th century, and Alberico Gentili, Francisco de Vitoria and Hugo Grotius, the "fathers of international law." Several legal systems developed in Europe, including the codified systems of continental European states and English common law, based on decisions by judges and not by written codes. Other areas developed differing legal systems, with the Chinese legal tradition dating back more than four thousand years, although at the end of the 19th century, there was still no written code for civil proceedings.

One of the first instruments of modern international law was the Lieber Code, passed in 1863 by the Congress of the United States, to govern the conduct of US forces during the United States Civil War and considered to be the first written recitation of the rules and articles of war, adhered to by all civilised nations, the precursor of international law. This led to the first prosecution for war crimes—in the case of United States prisoners of war held in cruel and depraved conditions at Andersonville, Georgia, in which the Confederate commandant of that camp was tried and hanged, the only Confederate soldier to be punished by death in the aftermath of the entire Civil War.

In the years that followed, other states subscribed to limitations of their conduct, and numerous other treaties and bodies were created to regulate the conduct of states towards one another in terms of these treaties, including, but not limited to, the Permanent Court of Arbitration in 1899; the Hague and Geneva Conventions, the first of which was passed in 1864; the International Court of Justice in 1921; the Genocide Convention; and the International Criminal Court, in the late 1990s. Because international law is a relatively new area of law its development and propriety in applicable areas are often subject to dispute.

International relations

Under article 38 of the Statute of the International Court of Justice, international law has three principal sources: international treaties, custom, and general principles of law. In addition, judicial decisions and teachings may be applied as "subsidiary means for the determination of rules of law". International treaty law comprises obligations states expressly and voluntarily accept between themselves in treaties. Customary international law is derived from the consistent practice of States accompanied by opinio juris, i.e. the conviction of States that the consistent practice is required by a legal obligation. Judgments of international tribunals as well as scholarly works have traditionally been looked to as persuasive sources for custom in addition to direct evidence of state behavior.

Attempts to codify customary international law picked up momentum after the Second World War with the formation of the International Law Commission (ILC), under the aegis of the United Nations. Codified customary law is made the binding interpretation of the underlying custom by agreement through treaty. For states not party to such treaties, the work of the ILC may still be accepted as custom applying to those states. General principles of law are those commonly recognized by the major legal systems of the world. Certain norms of international law achieve the binding force of peremptory norms (jus cogens) as to include all states with no permissible derogations:

• Colombia v Perú [1950] ICJ 6, recognising custom as a source of international law, but a practice of giving asylum was not part of it;
• Belgium v Spain [1970] ICJ 1, only the state where a corporation is incorporated (not where its major shareholders reside) has standing to bring an action for damages for economic loss.

International law is sourced from decision makers and researchers looking to verify the substantive legal rule governing a legal dispute or academic discourse. The sources of international law applied by the community of nations to find the content of international law are listed under Article 38.1 of the Statute of the International Court of Justice: Treaties, customs, and general principles are stated as the three primary sources; and judicial decisions and scholarly writings are expressly designated as the subsidiary sources of international law. Many scholars agree that the fact that the sources are arranged sequentially in the Article 38 of the ICJ Statute suggests an implicit hierarchy of sources. However, there is no concrete evidence, in the decisions of the international courts and tribunals, to support such strict hierarchy, at least when it is about choosing international customs and treaties. In addition, unlike the Article 21 of the Rome Statute of the International Criminal Court, which clearly defines hierarchy of applicable law (or sources of international law), the language of the Article 38 do not explicitly support hierarchy of sources.

The sources have been influenced by a range of political and legal theories. During the 20th century, it was recognized by legal positivists that a sovereign state could limit its authority to act by consenting to an agreement according to the principle pacta sunt servanda. This consensual view of international law was reflected in the 1920 Statute of the Permanent Court of International Justice, which was succeeded by the United Nations Charter and is preserved in the United Nations Article 7 of the 1946 Statute of the International Court of Justice.

Treaties

Where there are disputes about the exact meaning and application of national laws, it is the responsibility of the courts to decide what the law means. In international law interpretation is within the domain of the protagonists, but may also be conferred on judicial bodies such as the International Court of Justice, by the terms of the treaties or by consent of the parties. It is generally the responsibility of states to interpret the law for themselves, but the processes of diplomacy and availability of supra-national judicial organs operate routinely to provide assistance to that end. Insofar as treaties are concerned, the Vienna Convention on the Law of Treaties writes on the topic of interpretation that:

"A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose." (article 31(1))

This is actually a compromise between three different theories of interpretation:

• The textual approach, a restrictive interpretation, which bases itself on the "ordinary meaning" of the text; that approach assigns considerable weight to the actual text;
• The subjective approach, which takes into consideration i. the idea behind the treaty, ii. treaties "in their context", and iii. what the writers intended when they wrote the text;
• A third approach, which bases itself on interpretation "in the light of its object and purpose", i.e. the interpretation that best suits the goal of the treaty, also called "effective interpretation".

These are general rules of interpretation; specific rules might exist in specific areas of international law:

• Greece v United Kingdom [1952] ICJ 1, ICJ had no jurisdiction to hear a dispute between the UK government and a private Greek businessman under the terms of a treaty;
• United Kingdom v Iran [1952] ICJ 2, the ICJ did not have jurisdiction for a dispute over the Anglo-Iranian Oil Co. being nationalised;
• Oil Platforms case (Islamic Republic of Iran v United States of America) [2003] ICJ 4, rejected dispute over damage to ships which hit a mine.

Statehood and responsibility

International law establishes the framework and the criteria for identifying states as the principal actors in the international legal system. As the existence of a state presupposes control and jurisdiction over territory, international law deals with the acquisition of territory, state immunity and the legal responsibility of states in their conduct with each other. International law is similarly concerned with the treatment of individuals within state boundaries. There is thus a comprehensive regime dealing with group rights, the treatment of aliens, the rights of refugees, international crimes, nationality problems, and human rights generally. It further includes the important functions of the maintenance of international peace and security, arms control, the pacific settlement of disputes and the regulation of the use of force in international relations. Even when the law is not able to stop the outbreak of war, it has developed principles to govern the conduct of hostilities and the treatment of prisoners. International law is also used to govern issues relating to the global environment, the global commons such as international waters and outer space, global communications, and world trade.
In theory all states are sovereign and equal. As a result of the notion of sovereignty, the value and authority of international law is dependent upon the voluntary participation of states in its formulation, observance, and enforcement. Although there may be exceptions, it is thought by many international academics that most states enter into legal commitments with other states out of enlightened self-interest rather than adherence to a body of law that is higher than their own. As D. W. Greig notes, "international law cannot exist in isolation from the political factors operating in the sphere of international relations".

Traditionally, sovereign states and the Holy See were the sole subjects of international law. With the proliferation of international organizations over the last century, they have in some cases been recognized as relevant parties as well. Recent interpretations of international human rights law, international humanitarian law, and international trade law (e.g., North American Free Trade Agreement (NAFTA) Chapter 11 actions) have been inclusive of corporations, and even of certain individuals.

The conflict between international law and national sovereignty is subject to vigorous debate and dispute in academia, diplomacy, and politics. Certainly, there is a growing trend toward judging a state's domestic actions in the light of international law and standards. Numerous people now view the nation-state as the primary unit of international affairs, and believe that only states may choose to voluntarily enter into commitments under international law, and that they have the right to follow their own counsel when it comes to interpretation of their commitments. Certain scholars and political leaders feel that these modern developments endanger nation states by taking power away from state governments and ceding it to international bodies such as the U.N. and the World Bank, argue that international law has evolved to a point where it exists separately from the mere consent of states, and discern a legislative and judicial process to international law that parallels such processes within domestic law. This especially occurs when states violate or deviate from the expected standards of conduct adhered to by all civilized nations.

A number of states place emphasis on the principle of territorial sovereignty, thus seeing states as having free rein over their internal affairs. Other states oppose this view. One group of opponents of this point of view, including many European nations, maintain that all civilized nations have certain norms of conduct expected of them, including the prohibition of genocide, slavery and the slave trade, wars of aggression, torture, and piracy, and that violation of these universal norms represents a crime, not only against the individual victims, but against humanity as a whole. States and individuals who subscribe to this view opine that, in the case of the individual responsible for violation of international law, he "is become, like the pirate and the slave trader before him, hostis humani generis, an enemy of all mankind",^[12] and thus subject to prosecution in a fair trial before any fundamentally just tribunal, through the exercise of universal jurisdiction.

Though the European democracies tend to support broad, universalistic interpretations of international law, many other democracies have differing views on international law. Several democracies, including India, Israel and the United States, take a flexible, eclectic approach, recognizing aspects of international law such as territorial rights as universal, regarding other aspects as arising from treaty or custom, and viewing certain aspects as not being subjects of international law at all. Democracies in the developing world, due to their past colonial histories, often insist on non-interference in their internal affairs, particularly regarding human rights standards or their peculiar institutions, but often strongly support international law at the bilateral and multilateral levels, such as in the United Nations, and especially regarding the use of force, disarmament obligations, and the terms of the UN Charter:

• Case Concerning United States Diplomatic and Consular Staff in Tehran [1980] ICJ 1;
• Democratic Republic of the Congo v Belgium [2002] ICJ 1.

Territory and the sea

• Territorial dispute;
• Libya v Chad [1994] ICJ 1;
• United Kingdom v Norway [1951] ICJ 3, the Fisheries case, concerning the limits of Norway's jurisdiction over neighbouring waters;
• Peru v Chile (2014) dispute over international waters;
• Bakassi case [2002] ICJ 2, between Nigeria and Cameroon;
• Burkina Faso-Niger frontier dispute case (2013);
• United Nations Convention on the Law of the Sea;
• Corfu Channel Case [1949] ICJ 1, UK sues Albania for damage to ships in international waters. First ICJ decision;
• France v United Kingdom [1953] ICJ 3;
• Germany v Denmark and the Netherlands [1969] ICJ 1, successful claim for a greater share of the North Sea continental shelf by Germany. The ICJ held that the matter ought to be settled, not according to strict legal rules, but through applying equitable principles;
• Case concerning maritime delimitation in the Black Sea (Romania v Ukraine) [2009] ICJ 3.

International organisations

• United Nations
• World Trade Organization
• International Labour Organization
• NATO
• European Union
• G7 and G20

Social and economic policy

• Netherlands v Sweden [1958] ICJ 8, Sweden had jurisdiction over its guardianship policy, meaning that its laws overrode a conflicting guardianship order of the Netherlands.
• Liechtenstein v Guatemala [1955] ICJ 1, the recognition of Mr Nottebohm's nationality, connected to diplomatic protection.
• Italy v France, United Kingdom and United States [1954] ICJ 2

Human rights

• Universal Declaration of Human Rights
• Croatia–Serbia genocide case (2014) ongoing claims over genocide.
• Bosnia and Herzegovina v Serbia and Montenegro [2007] ICJ 2
• Case Concerning Barcelona Traction, Light, and Power Company, Ltd [1970] ICJ 1

Labour law

• International Labour Organization
• ILO Conventions
• Declaration of Philadelphia of 1944
• Declaration on Fundamental Principles and Rights at Work of 1998
• United Nations Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families
• the Convention on the Elimination of All Forms of Racial Discrimination 1965^[13]
• Convention on the Elimination of All Forms of Discrimination Against Women 1981);^[14]
• the Convention on the Rights of Persons with Disabilities 2008^[15]

Development and finance

• Bretton Woods Conference
• World Bank
• International Monetary Fund

Environmental law

• Kyoto Protocol

Trade

• World Trade Organization

Conflict and force

War and armed conflict

• Nicaragua v. United States [1986] ICJ 1
• International Court of Justice advisory opinion on the Legality of the Threat or Use of Nuclear Weapons

Humanitarian law

• First Geneva Convention of 1949, Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, (first adopted in 1864)
• Second Geneva Convention of 1949, Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (first adopted in 1906)
• Third Geneva Convention of 1949, Treatment of Prisoners of War, adopted in 1929, following from the Hague Conventions of 1899 and 1907.
• Fourth Geneva Convention of 1949, Protection of Civilian Persons in Time of War.

International criminal law

• International Criminal Tribunal for Rwanda
• International Criminal Tribunal for the Former Yugoslavia

Courts and enforcement

It is probably the case that almost all nations observe almost all principles of international law and almost all of their obligations almost all the time.

— Louis Henkin

Since international law has no established compulsory judicial system for the settlement of disputes or a coercive penal system, it is not as straightforward as managing breaches within a domestic legal system. However, there are means by which breaches are brought to the attention of the international community and some means for resolution. For example, there are judicial or quasi-judicial tribunals in international law in certain areas such as trade and human rights. The formation of the United Nations, for example, created a means for the world community to enforce international law upon members that violate its charter through the Security Council.

Since international law exists in a legal environment without an overarching "sovereign" (i.e., an external power able and willing to compel compliance with international norms), "enforcement" of international law is very different from in the domestic context. In many cases, enforcement takes on Coasian characteristics, where the norm is self-enforcing. In other cases, defection from the norm can pose a real risk, particularly if the international environment is changing. When this happens, and if enough states (or enough powerful states) continually ignore a particular aspect of international law, the norm may actually change according to concepts of customary international law. For example, prior to World War I, unrestricted submarine warfare was considered a violation of international law and ostensibly the casus belli for the United States' declaration of war against Germany. By World War II, however, the practice was so widespread that during the Nuremberg trials, the charges against German Admiral Karl Dönitz for ordering unrestricted submarine warfare were dropped, notwithstanding that the activity constituted a clear violation of the Second London Naval Treaty of 1936.

Domestic enforcement

Apart from a state's natural inclination to uphold certain norms, the force of international law comes from the pressure that states put upon one another to behave consistently and to honor their obligations. As with any system of law, many violations of international law obligations are overlooked. If addressed, it may be through diplomacy and the consequences upon an offending state's reputation, submission to international judicial determination, arbitration, sanctions, or force including war. Though violations may be common in fact, states try to avoid the appearance of having disregarded international obligations. States may also unilaterally adopt sanctions against one another such as the severance of economic or diplomatic ties, or through reciprocal action. In some cases, domestic courts may render judgment against a foreign state (the realm of private international law) for an injury, though this is a complicated area of law where international law intersects with domestic law.

It is implicit in the Westphalian system of nation-states, and explicitly recognized under Article 51 of the Charter of the United Nations, that all states have the inherent right to individual and collective self-defense if an armed attack occurs against them. Article 51 of the UN Charter guarantees the right of states to defend themselves until (and unless) the Security Council takes measures to keep the peace.

International bodies

As a "deliberative, policymaking and representative organ", the United Nations General Assembly "is empowered to make recommendations"; it can neighter codify international law nor make binding resolutions. Merely internal resolutions, such as budgetary matters, may be binding on the operation of the General Assembly itself. Violations of the UN Charter by members of the United Nations may be raised by the aggrieved state in the General Assembly for debate.

General Assembly resolutions are generally non-binding towards member states, but through its adoption of the "Uniting for Peace" resolution (A/RES/377 A), of 3 November 1950, the Assembly declared that it had the power to authorize the use of force, under the terms of the UN Charter, in cases of breaches of the peace or acts of aggression, provided that the Security Council, owing to the negative vote of a permanent member, fails to act to address the situation. The Assembly also declared, by its adoption of resolution 377 A, that it could call for other collective measures—such as economic and diplomatic sanctions—in situations constituting the milder "threat to the Peace".

The Uniting for Peace resolution was initiated by the United States in 1950, shortly after the outbreak of the Korean War, as a means of circumventing possible future Soviet vetoes in the Security Council. The legal role of the resolution is clear, given that the General Assembly can neighter issue binding resolutions nor codify law. It was never argued by the "Joint Seven-Powers" that put forward the draft resolution, during the corresponding discussions, that it in any way afforded the Assembly new powers. Instead, they argued that the resolution simply declared what the Assembly's powers already were, according to the UN Charter, in the case of a dead-locked Security Council. The Soviet Union was the only permanent member of the Security Council to vote against the Charter interpretations that were made recommendation by the Assembly's adoption of resolution 377 A.
Alleged violations of the Charter can also be raised by states in the Security Council. The Security Council could subsequently pass resolutions under Chapter VI of the UN Charter to recommend the "Pacific Resolution of Disputes." Such resolutions are not binding under international law, though they usually are expressive of the Council's convictions. In rare cases, the Security Council can adopt resolutions under Chapter VII of the UN Charter, related to "threats to Peace, Breaches of the Peace and Acts of Aggression," which are legally binding under international law, and can be followed up with economic sanctions, military action, and similar uses of force through the auspices of the United Nations.

It has been argued that resolutions passed outside of Chapter VII can also be binding; the legal basis for that is the Council's broad powers under Article 24(2), which states that "in discharging these duties (exercise of primary responsibility in international peace and security), it shall act in accordance with the Purposes and Principles of the United Nations". The mandatory nature of such resolutions was upheld by the International Court of Justice (ICJ) in its advisory opinion on Namibia. The binding nature of such resolutions can be deduced from an interpretation of their language and intent.

States can also, upon mutual consent, submit disputes for arbitration by the International Court of Justice, located in The Hague, Netherlands. The judgments given by the Court in these cases are binding, although it possesses no means to enforce its rulings. The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request. Some of the advisory cases brought before the court have been controversial with respect to the court's competence and jurisdiction.

Often enormously complicated matters, ICJ cases (of which there have been less than 150 since the court was created from the Permanent Court of International Justice in 1945) can stretch on for years and generally involve thousands of pages of pleadings, evidence, and the world's leading specialist international lawyers. As of June 2009, there are 15 cases pending at the ICJ. Decisions made through other means of arbitration may be binding or non-binding depending on the nature of the arbitration agreement, whereas decisions resulting from contentious cases argued before the ICJ are always binding on the involved states.

Though states (or increasingly, international organizations) are usually the only ones with standing to address a violation of international law, some treaties, such as the International Covenant on Civil and Political Rights have an optional protocol that allows individuals who have had their rights violated by member states to petition the international Human Rights Committee. Investment treaties commonly and routinely provide for enforcement by individuals or investing entities. and commercial agreements of foreigners with sovereign governments may be enforced on the international plane.

International courts

There are numerous international bodies created by treaties adjudicating on legal issues where they may have jurisdiction. The only one claiming universal jurisdiction is the United Nations Security Council. Others are: the United Nations International Court of Justice, and the International Criminal Court (when national systems have totally failed and the Treaty of Rome is applicable) and the Court of Arbitration for Sport.

East Africa Community

There were ambitions to make the East African Community, consisting of Kenya, Tanzania, Uganda, Burundi and Rwanda, a political federation with its own form of binding supranational law, but this effort has not materialized.

Union of South American Nations

The Union of South American Nations serves the South American continent. It intends to establish a framework akin to the European Union by the end of 2019. It is envisaged to have its own passport and currency, and limit barriers to trade.

Andean Community of Nations

The Andean Community of Nations is the first attempt to integrate the countries of the Andes Mountains in South America. It started with the Cartagena Agreement of 26 May 1969, and consists of four countries: Bolivia, Colombia, Ecuador and Peru. The Andean Community follows supranational laws, called Agreements, which are mandatory for these countries.

International legal theory

International legal theory comprises a variety of theoretical and methodological approaches used to explain and analyse the content, formation and effectiveness of international law and institutions and to suggest improvements. Some approaches center on the question of compliance: why states follow international norms in the absence of a coercitive power that ensures compliance. Other approaches focus on the problem of the formation of international rules: why states voluntarily adopt international law norms, that limit their freedom of action, in the absence of a world legislature; while other perspectives are policy oriented: they elaborate theoretical frameworks and instruments to criticize the existing norms and to make suggestions on how to improve them. Some of these approaches are based on domestic legal theory, some are interdisciplinary, and others have been developed expressly to analyse international law. Classical approaches to International legal theory are the Natural law, the Eclectic and the Legal positivism schools of thought.

The natural law approach argues that international norms should be based on axiomatic truths. 16th-century natural law writer, Francisco de Vitoria, a professor of theology at the University of Salamanca, examined the questions of the just war, the Spanish authority in the Americas, and the rights of the Native American peoples.

In 1625 Hugo Grotius argued that nations as well as persons ought to be governed by universal principle based on morality and divine justice while the relations among polities ought to be governed by the law of peoples, the jus gentium, established by the consent of the community of nations on the basis of the principle of pacta sunt servanda, that is, on the basis of the observance of commitments.

On his part, Emmerich de Vattel argued instead for the equality of states as articulated by 18th-century natural law and suggested that the law of nations was composed of custom and law on the one hand, and natural law on the other. During the 17th century, the basic tenets of the Grotian or eclectic school, especially the doctrines of legal equality, territorial sovereignty, and independence of states, became the fundamental principles of the European political and legal system and were enshrined in the 1648 Peace of Westphalia.

The early positivist school emphasized the importance of custom and treaties as sources of international law. 16th-century Alberico Gentili used historical examples to posit that positive law (jus voluntarium) was determined by general consent. Cornelius van Bynkershoek asserted that the bases of international law were customs and treaties commonly consented to by various states, while John Jacob Moser emphasized the importance of state practice in international law. The positivism school narrowed the range of international practice that might qualify as law, favouring rationality over morality and ethics. The 1815 Congress of Vienna marked the formal recognition of the political and international legal system based on the conditions of Europe.

Modern legal positivists consider international law as a unified system of rules that emanates from the states' will. International law, as it is, is an "objective" reality that needs to be distinguished from law "as it should be." Classic positivism demands rigorous tests for legal validity and it deems irrelevant all extralegal arguments.

Terminology

The term "international law" is sometimes divided into "public" and "private" international law, particularly by civil law scholars, who seek to follow a Roman tradition. Roman lawyers would have further distinguished jus gentium, the law of nations, and jus inter gentes – agreements between nations. On this view, "public" international law is said to cover relations between nation-states, and includes fields such as treaty law, law of sea, international criminal law, the laws of war or international humanitarian law, international human rights law, and refugee law. By contrast "private" international law, which is more commonly termed "conflict of laws", concerns whether courts within countries claim jurisdiction over cases with a foreign element, and which country's law applies. A further concept, more recently developing, is of "supranational law", on the law of supranational organizations. This concerns regional agreements where the laws of nation states may be held inapplicable when conflicting with a supranational legal system when that nation has a treaty obligation to a supranational collective. Systems of "supranational law" arise when nations explicitly cede their right to make certain judicial decisions to a common tribunal. The decisions of the common tribunal are directly effective in each party nation, and have priority over decisions taken by national courts. The European Union is an example of an international treaty organization which implements a supranational legal framework, with the European Court of Justice having supremacy over all member-nation courts in matter of European Union law. A further frequently used term is "transnational law", which refers to a body of rules that transcend the nation state.

Criticisms

Nation-states observe the principle of par in parem non habet imperium, 'Between equals there is no sovereign power'. John Austin therefore asserted that 'so-called' international law, lacking a sovereign power and so unenforceable, was not really law at all, but 'positive morality', consisting of 'opinions and sentiments...more ethical than legal in nature.'

Article 2 (1) of the UN Charter confirms this Sovereignty of Nations; no state is in subjection to any other state.

Also, since the bulk of international law is treaty law, binding only on signatories:

If legislation is the making of laws by a person or assembly binding on the whole community, there is no such thing as international law. For treaties bind only those who sign them.

Since states are few in number, diverse and atypical in character, unindictable, lacking a centralised sovereign power, and their agreements unpoliced and decentralised, then, says Wight, 'international society is not a society at all. The condition of international relations is best described as international anarchy:

While in domestic politics the struggle for power is governed and circumscribed by law, in international politics, law is governed and circumscribed by the struggle for power. (This is why) international politics is called power politics... War is the only means by which states can in the last resort defend vital interests...the causes of war are inherent in power politics.

On the subject of treaty law, Charles de Gaulle said this; 'Treaties are like pretty girls, or roses; they last only as long as they last.'

For Hans Morgenthau, international law is the weakest and most primitive system of law enforcement. Its decentralised nature makes it similar to the law that prevails in preliterate tribal societies. A Monopoly on violence is what makes domestic law enforceable; but between nations, there are multiple competing sources of force. The confusion created by treaty laws, which resemble private contracts between persons, is mitigated only by the relatively small number of states. On the vital subject of war, it is unclear whether the Nuremberg trials created new law, or applied the existing law of the Kellogg-Briand pact.

Morgenthau asserts that no state may be compelled to submit a dispute to an international tribunal, making laws unenforceable and voluntary. International law is also unpoliced, lacking agencies for enforcement. He cites a 1947 US opinion poll in which 75% of respondents wanted 'an international police to maintain world peace'; but only 13% wanted that force to exceed the US armed forces. Later surveys have produced similar contradictory results.

Superior orders

From Wikipedia, the free encyclopedia

Superior orders, often known as the Nuremberg defense, lawful orders or by the German phrase Befehl ist Befehl ("an order is an order"), is a plea in a court of law that a person—whether a member of the military, law enforcement, a firefighting force, or the civilian population—not be held guilty for actions ordered by a superior officer or an official.

The superior orders plea is often regarded as the complement to command responsibility.

One of the most noted uses of this plea, or defense, was by the accused in the 1945–1946 Nuremberg trials, such that it is also called the "Nuremberg defense". The Nuremberg Trials were a series of military tribunals, held by the main victorious Allied forces after World War II, most notable for the prosecution of prominent members of the political, military, and economic leadership of the defeated Nazi Germany. These trials, under the London Charter of the International Military Tribunal that set them up, established that the defense of superior orders was no longer enough to escape punishment, but merely enough to lessen punishment.

Historically, the plea of superior orders has been used both before and after the Nuremberg Trials, with a notable lack of consistency in various rulings.

Apart from the specific plea of superior orders, discussions about how the general concept of superior orders ought to be used, or ought not to be used, have taken place in various arguments, rulings and statutes that have not necessarily been part of "after the fact" war crimes trials, strictly speaking. Nevertheless, these discussions and related events help to explain the evolution of the specific plea of superior orders and the history of its usage.

History before 1900

The trial of Peter von Hagenbach

Hagenbach on trial, from Berner Chronik des Diebold Schilling dem Älteren

In 1474, in the trial of Peter von Hagenbach by an ad hoc tribunal of the Holy Roman Empire, the first known "international" recognition of commanders' obligations to act lawfully occurred. Hagenbach offered the defense that he was just following orders, but this defense was rejected and he was convicted of war crimes and beheaded.

Specifically, Hagenbach was put on trial for atrocities committed under his command but not by him directly, during the occupation of Breisach. This was the earliest modern European example of the doctrine of command responsibility. Since he was convicted for crimes "he as a knight was deemed to have a duty to prevent", Hagenbach defended himself by arguing that he was only following orders from the Duke of Burgundy, Charles the Bold, to whom the Holy Roman Empire had given Breisach.

History from 1900 to 1947

Court-martial of Breaker Morant

During the Second Boer War, three Australian officers (Morant, Handcock and Witton) were charged and tried for a number of murders, including those of prisoners who had surrendered. A significant part of the defense was that they were acting under orders issued by Lord Kitchener to "take no prisoners". However, these orders were verbal, were denied by Kitchener and his staff, and could not be validated in court, resulting in a guilty verdict against all three men.

German military trials after World War I

On June 4, 1921, the legal doctrine of superior orders was used during the German Military Trials that took place after World War I: One of the most famous of these trials was the matter of Lieutenant Karl Neumann, who was a U-boat captain responsible for the sinking of the hospital ship the Dover Castle. Even though he frankly admitted to having sunk the ship, he stated that he had done so on the basis of orders supplied to him by the German Admiralty and so he could not be held liable for his actions. The Reichsgericht, then Germany's supreme court, acquitted him, accepting the defense of superior orders as a grounds to escape criminal liability. Further, that very court had this to say in the matter of superior orders:

... that all civilized nations recognize the principle that a subordinate is covered by the orders of his superiors.

Many accused of war crimes were acquitted on a similar defense, creating immense dissatisfaction among the Allies. That has been thought to be one of the main causes for the specific removal of this defense in the August 8, 1945 London Charter of the International Military Tribunal. The removal has been attributed to the actions of Robert H. Jackson, a Justice of the United States Supreme Court, who was appointed Chief Prosecutor at the Nuremberg trials.

Dostler case

Dostler tied to a stake before the execution

On October 8, 1945, Anton Dostler was the first German general to be tried for war crimes by a US military tribunal at the Royal Palace in Caserta. He was accused of ordering the execution of 15 captured US soldiers of Operation Ginny II in Italy in March 1944. He admitted to ordering the execution but said that he could not be held responsible because he was following orders from his superiors. The execution of the prisoners of war in Italy, ordered by Dostler, was an implementation of Adolf Hitler's Commando Order of 1942, which required the immediate execution of all Allied commandos, whether they were in proper uniforms or not, without trial if they were apprehended by German forces. The tribunal rejected the defense of Superior Orders and found Dostler guilty of war crimes. He was sentenced to death and executed by a firing squad on December 1, 1945, in Aversa.

The Dostler case became a precedent for the principle that was used in the Nuremberg Trials of German generals, officials, and Nazi leaders beginning in November 1945: using superior orders as a defense does not relieve officers from responsibility of carrying out illegal orders and their liability to be punished in court. The principle was codified in Principle IV of the Nuremberg Principles, and similar principles were found in sections of the Universal Declaration of Human Rights.

Nuremberg Trials after World War II

In 1945 and 1946, during the Nuremberg trials the issue of superior orders again arose. Before the end of World War II, the Allies suspected such a defense might be employed and issued the London Charter of the International Military Tribunal (IMT), which explicitly stated that following an unlawful order is not a valid defense against charges of war crimes.
Thus, under Nuremberg Principle IV, "defense of superior orders" is not a defense for war crimes, although it might be a mitigating factor that could influence a sentencing authority to lessen the penalty. Nuremberg Principle IV states:

The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.

During the Nuremberg Trials, Wilhelm Keitel, Alfred Jodl and other defendants unsuccessfully used the defense. They contended that while they knew Adolf Hitler's orders were unlawful, or at least had reason to believe they were unlawful, their place was not to question, but to obey. They claimed they were compelled to do so by the Führerprinzip (leader principle) that governed the Nazi regime, as well as their own oath of allegiance to Hitler. In most cases, the tribunal found that the defendants' offenses were so egregious that obedience to superior orders could not be considered a mitigating factor.

(Before the trials, there was little consensus among the Allies as to what was to be done with the Nazi war prisoners. Winston Churchill was inclined to have the leaders 'executed as outlaws'. The Soviets desired trials but wished there to be a presumption of guilt, as opposed to the procedural presumption of innocence that accompanies most Western criminal trials.)

The German military law since 1872 said that while the superior is ("solely") responsible for his order, the subordinate is to be punished for his participation in it if he either transgressed the order on his own account, or if he knew the order to be criminal. For many of their offenses (e.g., killing a non-combatant without trial) the Nazis did not bother to (or were too reluctant to) legalize them by a formal law, so, the judges at Nuremberg could have argued that the defendants heavily broke German law to begin with. However, this line of argumentation was only in very limited amounts argued on in the trials.

"Nuremberg defense"

The trials gained so much attention that the "superior orders defense" has subsequently become interchangeable with the label "Nuremberg defense", a legal defense that essentially states that defendants were "only following orders" ("Befehl ist Befehl", literally "an order is an order") and so are not responsible for their crimes.

However, US General Telford Taylor, who had served as Chief Counsel for the United States during the Nuremberg trials, employed the term "Nuremberg defense" in a different sense. He applied it not to the defense offered by the Nuremberg defendants but to a justification put forward by those who refused to take part in military action (specifically America's involvement in the Vietnam War) that they believed to be criminal.

History from 1947 to 2000

Eichmann on trial in 1961

The defense of superior orders again arose in the 1961 trial of Nazi war criminal Adolf Eichmann in Israel, as well as the trial of Alfredo Astiz of Argentina, the latter responsible for a large number of disappearances and kidnappings that took place during that country's last civil-military dictatorship (1976-1983), which forced a State-sponsored terrorism upon the population, resulting in what (to several sources) amounted to a genocide.

In the 1950s and 1960s the use of Befehlsnotstand (English: Compulsion to obey orders), a concept in which a certain action is ordered which violates law but where the refusal to carry out such an order would lead to drastic consequences for the person refusing to carry out the order, as a defence in war crimes trials in Germany was quite successful as it protected the accused from punishment. With the formation of the Central Office of the State Justice Administrations for the Investigation of National Socialist Crimes this changed as a historical research by the organisation revealed that refusing an unlawful order did not result in punishment.

Israeli law since 1956

In 1957, the Israeli legal system established the concept of a 'blatantly illegal order' to explain when a military order (or in general, a security-related order) should be followed, and when an order must not be followed. The concept is explained in 1957 by the infamous Kafr Qasim massacre ruling.

The Kafr Qasim trial considered for the first time the issue of when Israeli security personnel are required to disobey illegal orders. The judges decided that soldiers do not have the obligation to examine each and every order in detail as to its legality, nor were they entitled to disobey orders merely on a subjective feeling that they might be illegal. On the other hand, some orders were manifestly illegal, and these must be disobeyed. Judge Benjamin Halevy's words, still much-quoted today, were that "The distinguishing mark of a manifestly illegal order is that above such an order should fly, like a black flag, a warning saying: 'Prohibited!'"

Captain (res.) Itai Haviv, a signatory of the 'courage to refuse' letter of 2002 tells of his unhappiness about his service for the Israeli Defense Forces (IDF) and says "For 35 years a black flag was proudly hanging over our heads, but we have refused to see it". A translation note explains the "Black Flag" principle but adds "In the 45 years that passed since [the ruling], not even a single soldier was protected by a military court for refusing to obey a command because it was a 'black flag' command."

1968 My Lai Massacre

Following the My Lai Massacre in 1968, the defense was employed during the court martial of William Calley. Some have argued that the outcome of the My Lai Massacre courts martial was a reversal of the laws of war that were set forth in the Nuremberg and Tokyo War Crimes Tribunals. Secretary of the Army Howard Callaway was quoted in the New York Times as stating that Calley's sentence was reduced because Calley believed that what he did was a part of his orders.

In United States v. Keenan, the accused was found guilty of murder after he obeyed an order to shoot and kill an elderly Vietnamese citizen. The Court of Military Appeals held that "the justification for acts done pursuant to orders does not exist if the order was of such a nature that a man of ordinary sense and understanding would know it to be illegal". The soldier who gave the order, Corporal Luczko, was acquitted by reason of insanity.

The 1998 Rome Statute of the International Criminal Court

The provision containing the superior orders defense can be found as a defense to international crimes in the Rome Statute of the International Criminal Court. (The Rome Statute was agreed upon in 1998 as the foundational document of the International Criminal Court, established to try those individuals accused of serious international crimes.) Article 33, titled "Superior orders and prescription of law", states:

1. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless:

• (a) The person was under a legal obligation to obey orders of the Government or the superior in question;
• (b) The person did not know that the order was unlawful; and
• (c) The order was not manifestly unlawful.

2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.

There are two interpretations of this Article:

• This formulation, especially (1)(a), whilst effectively prohibiting the use of the Nuremberg defense in relation to charges of genocide and crimes against humanity, does however, appear to allow the Nuremberg defense to be used as a protection against charges of war crimes, provided the relevant criteria are met.
• Nevertheless, this interpretation of ICC Article 33 is open to debate: For example, Article 33 (1)(c) protects the defendant only if "the order was not manifestly unlawful". The "order" could be considered "unlawful" if we consider Nuremberg Principle IV to be the applicable "law" in this case. If so, then the defendant is not protected. Discussion as to whether or not Nuremberg Principle IV is the applicable law in this case is found in a discussion of the Nuremberg Principles' power or lack of power.

History 2000 to present

Legal proceedings of Jeremy Hinzman in Canada

Nuremberg Principle IV, and its reference to an individual's responsibility, was at issue in Canada in the case of Hinzman v. Canada. Jeremy Hinzman was a U.S. Army deserter who claimed refugee status in Canada as a conscientious objector, one of many Iraq War resisters. Hinzman's lawyer, (at that time Jeffry House), had previously raised the issue of the legality of the Iraq War as having a bearing on their case. The Federal Court ruling was released on March 31, 2006, and denied the refugee status claim. In the decision, Justice Anne L. Mactavish addressed the issue of personal responsibility:

An individual must be involved at the policy-making level to be culpable for a crime against peace ... the ordinary foot soldier is not expected to make his or her own personal assessment as to the legality of a conflict. Similarly, such an individual cannot be held criminally responsible for fighting in support of an illegal war, assuming that his or her personal war-time conduct is otherwise proper.

On Nov 15, 2007, a quorum of the Supreme Court of Canada made of Justices Michel Bastarache, Rosalie Abella, and Louise Charron refused an application to have the Court hear the case on appeal, without giving reasons.

Legal proceedings of Ehren Watada in the United States

In June 2006, during the Iraq War, Ehren Watada refused to go to Iraq on account of his belief that the Iraq war was a crime against peace (waging a war of aggression for territorial aggrandizement), which he believed could make him liable for prosecution under the command responsibility doctrine. In this case, the judge ruled that soldiers, in general, are not responsible for determining whether the order to go to war itself is a lawful order – but are only responsible for those orders resulting in a specific application of military force, such as an order to shoot civilians, or to treat POWs inconsistently with the Geneva Conventions. This is consistent with the Nuremberg defense, as only the civilian and military principals of the Axis were charged with crimes against peace, while subordinate military officials were not so charged. It is often the case in modern warfare that while subordinate military officials are not held liable for their actions, neither are their superiors, as was the case with Calley's immediate superior Captain Ernest Medina.

Based on this principle, international law developed the concept of individual criminal liability for war crimes, which resulted in the current doctrine of command responsibility.

Arguments for and against

Historical overview summary table

Date	Preceding context	Jurisdiction / decisionmaker	Defendant(s) or case(s)	[found] "responsible" despite superior orders	[found] "not responsible" because of superior orders
1474	the occupation of Breisach	ad hoc tribunal of the Holy Roman Empire	Peter von Hagenbach	yes
1921	World War I	Germany's Supreme Court (trials after World War I)	Lieutenant Karl Neumann and others		yes
1945	World War II	Nuremberg trials after World War II	all defendants	yes
1998	preparation for future cases	Rome Statute of the International Criminal Court	future cases under Article 33 of the Rome Statute of the International Criminal Court	in cases of genocide and possibly other cases	possibly in cases other than genocide
2006	Iraq War	Justice Anne L. Mactavish - Federal Court (Canada)	Jeremy Hinzman (refugee applicant)		equivalent to yes

Note: Yellow rows indicate the use of the precise plea of Superior Orders in a war crimes trial - as opposed to events regarding the general concept of Superior Orders.

This is a dynamic list and may never be able to satisfy particular standards for completeness. You can help by expanding it with reliably sourced entries.

Arguments

The superior orders defense is still used with the following rationale in the following scenario: An "order" may come from one's superior at the level of national law. But according to Nuremberg Principle IV, such an order is sometimes "unlawful" according to international law. Such an "unlawful order" presents a legal dilemma from which there is no legal escape: On one hand, a person who refuses such an unlawful order faces the possibility of legal punishment at the national level for refusing orders. On the other hand, a person who accepts such an unlawful order faces the possibility of legal punishment at the international level (e.g. Nuremberg Trials) for committing unlawful acts. Nuremberg Principle II responds to that dilemma by stating: "The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law."

The above scenario might present a legal dilemma, but Nuremberg Principle IV speaks of "a moral choice" as being just as important as "legal" decisions: It states: "The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him".

In "moral choices" or ethical dilemmas an ethical decision is often made by appealing to a "higher ethic" such as ethics in religion or secular ethics. One such "higher ethic" found in many religions and in secular ethics, is the ethic of reciprocity, or Golden Rule. It states that one has a right to just treatment, and therefore has a reciprocal responsibility to ensure justice for others. Higher ethics, such as those, could be used by an individual to solve the legal dilemma presented by the superior orders defense.

Another argument against the use of the superior orders defense is that it does not follow the traditional legal definitions and categories established under criminal law. Under criminal law, a principal is any actor who is primarily responsible for a criminal offense. Such an actor is distinguished from others who may also be subject to criminal liability as accomplices, accessories or conspirators. (See also the various degrees of liability: absolute liability, strict liability, and mens rea.)

The common argument in this matter, is that every individual under orders should be bound by law to immediately relieve of command a superior officer who gives an obviously unlawful order to their troops. This represents a rational check to be put in place versus organizational command hierarchies.

Nuremberg Principle IV, the international law that counters the superior orders defense, is legally supported by the jurisprudence found in certain articles in the Universal Declaration of Human Rights that deal indirectly with conscientious objection. It is also supported by the principles found in paragraph 171 of the Handbook on Procedures and Criteria for Determining Refugee Status, which was issued by the Office of the United Nations High Commissioner for Refugees (UNHCR). Those principles deal with the conditions under which conscientious objectors can apply for refugee status in another country if they face persecution in their own country for refusing to participate in an illegal war.

Eichmann in Jerusalem (The banality of evil)

From Wikipedia, the free encyclopedia

Eichmann in Jerusalem: A Report on the Banality of Evil

First edition
Author	Hannah Arendt
Language	English
Publisher	Viking Press
Publication date	1963
Media type	Print (Hardcover, Paperback)
Pages	312

Eichmann in Jerusalem: A Report on the Banality of Evil is a book by political theorist Hannah Arendt, originally published in 1963. Arendt, a Jew who fled Germany during Adolf Hitler's rise to power, reported on Adolf Eichmann's trial for The New Yorker.

Overview

Arendt's subtitle famously introduced the phrase "the banality of evil," which also serves as the final words of the book. In part, at least, the phrase refers to Eichmann's deportment at the trial as the man displayed neither guilt for his actions nor hatred for those trying him, claiming he bore no responsibility because he was simply "doing his job" ("He did his duty...; he not only obeyed orders, he also obeyed the law." p. 135).

Arendt takes Eichmann's court testimony and the historical evidence available, and she makes several observations about Eichmann:

• Eichmann stated himself in court that he had always tried to abide by Immanuel Kant's categorical imperative (as discussed directly on pp. 135–137). She argues that Eichmann had essentially taken the wrong lesson from Kant: Eichmann had not recognized the "golden rule" and principle of reciprocity implicit in the categorical imperative, but had understood only the concept of one man's actions coinciding with general law. Eichmann attempted to follow the spirit of the laws he carried out, as if the legislator himself would approve. In Kant's formulation of the categorical imperative, the legislator is the moral self, and all men are legislators; in Eichmann's formulation, the legislator was Hitler. Eichmann claimed this changed when he was charged with carrying out the Final Solution, at which point Arendt claims "he had ceased to live according to Kantian principles, that he had known it, and that he had consoled himself with the thoughts that he no longer 'was master of his own deeds,' that he was unable 'to change anything'" (p. 136).
• Eichmann's inability to think for himself was exemplified by his consistent use of "stock phrases and self-invented clichés". The man demonstrated his unrealistic worldview and crippling lack of communication skills through reliance on "officialese" (Amtssprache) and the euphemistic Sprachregelung that made implementation of Hitler's policies "somehow palatable."
• While Eichmann might have had anti-Semitic leanings, Arendt argued that he showed "no case of insane hatred of Jews, of fanatical anti-Semitism or indoctrination of any kind. He personally never had anything whatever against Jews” (p. 26).
• Eichmann was a "joiner" his entire life, in that he constantly joined organizations in order to define himself, and had difficulties thinking for himself without doing so. As a youth, he belonged to the YMCA, the Wandervogel, and the Jungfrontkämpferverband. In 1933, he failed in his attempt to join the Schlaraffia (a men's organization similar to Freemasonry), at which point a family friend (and future war criminal) Ernst Kaltenbrunner encouraged him to join the SS. At the end of World War II, Eichmann found himself depressed because "it then dawned on him that thenceforward he would have to live without being a member of something or other" (pp. 32–3).
• Despite his claims, Eichmann was not, in fact, very intelligent. As Arendt details in the book's second chapter, he was unable to complete either high school or vocational training, and only found his first significant job (traveling salesman for the Vacuum Oil Company) through family connections. Arendt noted that, during both his SS career and Jerusalem trial, Eichmann tried to cover up his lack of skills and education, and even "blushed" when these facts came to light.
• Arendt confirms several points where Eichmann actually claimed he was responsible for certain atrocities, even though he lacked the power and/or expertise to take these actions. Moreover, Eichmann made these claims even though they hurt his defense, hence Arendt's remark that "Bragging was the vice that was Eichmann's undoing" (p. 46). Arendt also suggests that Eichmann may have preferred to be executed as a war criminal than live as a nobody. This parallels his overestimation of his own intelligence and his past value in the organizations in which he had served, as stated above.
• Arendt argues that Eichmann, in his peripheral role at the Wannsee Conference, witnessed the rank-and-file of the German civil service heartily endorse Reinhard Heydrich's program for the Final Solution of the Jewish question in Europe (German: die Endlösung der Judenfrage). Upon seeing members of "respectable society" endorsing mass murder, and enthusiastically participating in the planning of the solution, Eichmann felt that his moral responsibility was relaxed, as if he were "Pontius Pilate".
• During his imprisonment before his trial, the Israeli government sent no fewer than six psychologists to examine Eichmann. These psychologists found no trace of mental illness, including personality disorder. One doctor remarked that his overall attitude towards other people, especially his family and friends, was "highly desirable", while another remarked that the only unusual trait Eichmann displayed was being more "normal" in his habits and speech than the average person (pp. 25–6).

Arendt suggests that this most strikingly discredits the idea that the Nazi criminals were manifestly psychopathic and different from "normal" people. From this document, many concluded that situations such as the Holocaust can make even the most ordinary of people commit horrendous crimes with the proper incentives, but Arendt adamantly disagreed with this interpretation, as Eichmann was voluntarily following the Führerprinzip. Arendt insists that moral choice remains even under totalitarianism, and that this choice has political consequences even when the chooser is politically powerless:

[U]nder conditions of terror most people will comply but some people will not, just as the lesson of the countries to which the Final Solution was proposed is that "it could happen" in most places but it did not happen everywhere. Humanly speaking, no more is required, and no more can reasonably be asked, for this planet to remain a place fit for human habitation.

Arendt mentions, as a case in point, Denmark:

One is tempted to recommend the story as required reading in political science for all students who wish to learn something about the enormous power potential inherent in non-violent action and in resistance to an opponent possessing vastly superior means of violence.
It was not just that the people of Denmark refused to assist in implementing the Final Solution, as the peoples of so many other conquered nations had been persuaded to do (or had been eager to do) — but also, that when the Reich cracked down and decided to do the job itself it found that its own personnel in Denmark had been infected by this and were unable to overcome their human aversion with the appropriate ruthlessness, as their peers in more cooperative areas had.

On Eichmann's personality, Arendt concludes:

Despite all the efforts of the prosecution, everybody could see that this man was not a "monster," but it was difficult indeed not to suspect that he was a clown. And since this suspicion would have been fatal to the entire enterprise [his trial], and was also rather hard to sustain in view of the sufferings he and his like had caused to millions of people, his worst clowneries were hardly noticed and almost never reported (p. 55).

Legality of the trial

Beyond her discussion of Eichmann himself, Arendt discusses several additional aspects of the trial, its context, and the Holocaust.

• She points out that Eichmann was kidnapped by Israeli agents in Argentina and transported to Israel, an illegal act, and that he was tried in Israel even though he was not accused of committing any crimes there. "If he had not been found guilty before he appeared in Jerusalem, guilty beyond any reasonable doubt, the Israelis would never have dared, or wanted, to kidnap him in formal violation of Argentine law."
• She describes his trial as a show trial arranged and managed by Prime Minister Ben-Gurion, and says that Ben-Gurion wanted, for several political reasons, to emphasize not primarily what Eichmann had done, but what the Jews had suffered during the Holocaust.  She points out that the war criminals tried at Nuremberg were "indicted for crimes against the members of various nations," without special reference to the Nazi genocide against the Jews.
• She questions Israel's right to try Eichmann. Israel was a signatory to the 1950 UN Genocide Convention, which rejected universal jurisdiction and required that defendants be tried 'in the territory of which the act was committed' or by an international tribunal. The court in Jerusalem did not pursue either option. 
• Eichmann's deeds were not crimes under German law, as at that time, in the eyes of the Third Reich, he was a law-abiding citizen. He was tried for 'crimes in retrospect'. 
• The prosecutor, Gideon Hausner, followed the tone set by Prime Minister Ben-Gurion, who stated, 'It is not an individual nor the Nazi regime on trial, but Antisemitism throughout history.' Hausner's corresponding opening statements, which heavily referenced biblical passages, was 'bad history and cheap rhetoric," according to Arendt. Furthermore, it suggested that Eichmann was no criminal, but the 'innocent executor of some foreordained destiny.' 

The banality of evil

Arendt's book introduced the expression and concept the banality of evil. Her thesis is that Eichmann was not a fanatic or sociopath, but an extremely average person who relied on cliché defenses rather than thinking for himself and was motivated by professional promotion rather than ideology. Banality, in this sense, is not that Eichmann's actions were ordinary, or that there is a potential Eichmann in all of us, but that his actions were motivated by a sort of stupidity which was wholly unexceptional. In his 2010 history of the Second World War, Moral Combat, British historian Michael Burleigh calls the expression a "cliché" and gives many documented examples of gratuitous acts of cruelty by those involved in the Holocaust, including Eichmann. Arendt certainly did not disagree about the fact of gratuitous cruelty, but, she claims, "banality of evil" is unrelated to this question. Similarly, the first attempted rebuttal of Arendt's thesis relied on a misreading of this phrase, claiming Arendt meant that there was nothing exceptional about the Holocaust.

Controversy

Arendt sparked controversy with Eichmann in Jerusalem upon its publishing and the years since. Arendt has long been accused of "blaming the victim" in the book.

Stanley Milgram maintains that "Arendt became the object of considerable scorn, even calumny" because she highlighted Eichmann's "banality" and "normalcy", and accepted Eichmann's claim that he did not have evil intents or motives to commit such horrors; nor did he have a thought to the immorality and evil of his actions, or indeed, display, as the prosecution depicted, that he was a sadistic "monster" (ch.1).

Jacob Robinson published And the Crooked Shall be Made Straight, the first full-length rebuttal of her book. Robinson presented himself as an expert in international law, not saying that he was an assistant to the prosecutor in the case.

In his 2006 book, Becoming Eichmann: Rethinking the Life, Crimes and Trial of a "Desk Murderer", Holocaust researcher David Cesarani questioned Arendt's portrait of Eichmann on several grounds. According to his findings, Arendt attended only part of the trial, witnessing Eichmann's testimony for "at most four days" and basing her writings mostly on recordings and the trial transcript. Cesarani feels that this may have skewed her opinion of him, since it was in the parts of the trial that she missed that the more forceful aspects of his character appeared. Cesarani also presents evidence suggesting that Eichmann was in fact highly anti-Semitic and that these feelings were important motivators of his actions. Thus, he alleges that Arendt's claims that his motives were "banal" and non-ideological and that he had abdicated his autonomy of choice by obeying Hitler's orders without question may stand on weak foundations. This is a recurrent criticism of Arendt, though nowhere in her work does Arendt deny that Eichmann was an anti-Semite, and she also did not claim that Eichmann was "simply" following orders, but rather had internalized the clichés of the Nazi regime.

Cesarani suggests that Arendt's own prejudices influenced the opinions she expressed during the trial. He argues that like many Jews of German origin, she held Ostjuden (Jews from Eastern Europe) in great disdain. This, according to Cesarani, led her to attack the conduct and efficacy of the chief prosecutor, Gideon Hausner, who was of Galician-Jewish origin. In a letter to the noted German philosopher Karl Jaspers she stated that Hausner was "a typical Galician Jew... constantly making mistakes. Probably one of those people who doesn't know any language." Cesarani claims that some of her opinions of Jews of Middle Eastern origin verged on racism as she described the Israeli crowds in her letter to Karl Jaspers: "My first impression: On top, the judges, the best of German Jewry. Below them, the prosecuting attorneys, Galicians, but still Europeans. Everything is organized by a police force that gives me the creeps, speaks only Hebrew, and looks Arabic. Some downright brutal types among them. They would obey any order. And outside the doors, the Oriental mob, as if one were in Istanbul or some other half-Asiatic country. In addition, and very visible in Jerusalem, the peies (sidelocks) and caftan Jews, who make life impossible for all reasonable people here." Cesarani's book was itself criticized. In a review that appeared in the New York Times Review of Books, Barry Gewen argued that Cesarani's hostility stemmed from his book standing "in the shadow of one of the great books of the last half-century", and that Cesarani's suggestion that both Arendt and Eichmann had much in common in their backgrounds making it easier for her to look down on the proceedings, "reveals a writer in control neither of his material nor of himself."

Eichmann in Jerusalem, according to Hugh Trevor-Roper, is deeply indebted to Raul Hilberg's The Destruction of the European Jews, so much so that Hilberg himself spoke of plagiarism. The very points which Arendt borrows from Hilberg, were borrowed by Hilberg himself from H.G. Adler.

Arendt also received criticism in the form of responses to her article, also published in the New Yorker. One instance of this came mere weeks after the publication of her articles in the form of an article entitled "Man With an Unspotted Conscience". This work was written by witness for the defense, Michael A. Musmanno. He argued that Arendt fell prey to her own preconceived notions that rendered her work ahistorical. He also directly criticized her for ignoring the facts offered at the trial in stating that "the disparity between what Miss Arendt states, and what the ascertained facts are, occurs with such a disturbing frequency in her book that it can hardly be accepted as an authoritative historical work.". He further condemned Arendt and her work for her prejudices against Hauser and Ben-Gurion depicted in Eichmann in Jerusalem: A Report on the Banality of Evil. Musmanno argued that Arendt revealed "so frequently her own prejudices" that it could not stand as an accurate work.

Arendt relied heavily on the book by H.G. Adler Theresienstadt 1941-1945. The Face of a Coerced Community (Cambridge University Press. 2017), which she had read in manuscript. Adler took her to task on her view of Eichmann in his keynote essay What does Hannah Arendt know about Eichmann and the Final Solution (Allgemeine Zeitung der Juden in Deutschland. 20 November 1960).

In more recent years, Arendt has received further criticism from authors Bettina Stangneth and Deborah Lipstadt. Stangneth argues in her work, Eichmann Before Jerusalem, that Eichmann was, in fact, an insidious antisemite. She utilized the Sassen Papers and accounts of Eichmann while in Argentina to prove that he was proud of his position as a powerful Nazi and the murders that this allowed him to commit. While she acknowledges that the Sassen Papers were not disclosed in the lifetime of Arendt, she argues that the evidence was there at the trial to prove that Eichmann was an antisemitic murderer and that Arendt simply ignored this. Deborah Lipstadt contends in her work, The Eichmann Trial, that Arendt was distracted by her own views of totalitarianism to objectively judge Eichmann. She refers to Arendt's own work on totalitarianism, The Origins of Totalitarianism, as a basis for Arendt's seeking to validate her own work by using Eichmann as an example. Lipstadt further contends that Arendt "wanted the trial to explicate how these societies succeeded in getting others to do their atrocious biddings" and so framed her analysis in a way which would agree with this pursuit.