Eichmann Called Himself an Instrument

by Jens David Ohlin

The New York Times reported yesterday that Adolf Eichmann apparently wrote, by hand, an 11th-hour request to the Israeli President for a pardon of his conviction for crimes against humanity (or commutation of his death sentence). The request was denied and Eichmann was executed a few days later–the only execution ever carried out by the Israeli criminal justice system. The letter had been filed in archives and was only recently rediscovered as papers were being prepared for digitization.

Eichmann’s arguments are disturbing. Here is an excerpt:

There is a need to draw a line between the leaders responsible and the people like me forced to serve as mere instruments in the hands of the leaders… I was not a responsible leader, and as such do not feel myself guilty.

What is striking about the letter, in addition to its obvious obliviousness to his own moral responsibility, is the invocation of the language of “instrumentalities” in the argument. The notion of an “instrument”–a human instrument, analogous to a weapon or other physical object–was incredibly important for Claus Roxin, the German criminal law theorist who used the Eichmann case as an inspiration for the development of his theory of indirect perpetration, called Organisationsherrschaft, which translated means roughly “indirect perpetration through an organized apparatus of power.”

For Roxin, Eichmann was a classic case of someone who used others as instruments to perpetrate his crimes. But instead of simply using other individuals, Eichmann used an organization–which was characterized by the fungibility of its members and the automaticity of its execution of orders received from above. In that sense, the organization became the “through element” by which the order was carried out and the criminal plan brought to fruition by Eichmann.

The ironic thing is that in Eichmann’s letter, he claims that he was the mere instrument–presumably an instrument in the hands of Hitler himself. Obviously the Israeli Court disagreed and viewed Eichmann as something more than a mere instrument–they concluded that he was an active participant and indeed architect of the specifics of the so-called “Final Solution,” the extermination of Jews in Germany, Europe, and beyond.

Although Eichmann’s factual argument is implausible and self-serving (and inconsistent with the facts), it does raise, in the abstract, a complex legal question: how to treat the responsibility of mid-level or upper-level perpetrators who control subordinates below them but who are arguably not at the top of the chain of command. Should Organisationsherrschaft (and the Control Theory more broadly) apply to them?  How should we model individual criminal responsibility in this context?

Incidentally, this issue is discussed by Kai Ambos in Volume 1 of his treatise, pages 115-116, especially with regard to a case in Argentina that declined to apply Organisationsherrschaft for similar reasons (the court concluded that it could only be applied to the top-level Junta, and not subordinate officers below the top level). I’m curious what others think of this argument.

http://opiniojuris.org/2016/01/28/eichmann-as-instrument/

5 Responses

  1. Thanks Jens – this is very interesting indeed.

    My take is that the key to many culpability questions, both those that pertain to modes of participation and defences, is to adopt a relational conception of human agency, one which comprehends individual action as the result of an ever-fluctuating interplay between individual disposition and social context.

    According to this relational understanding of human agency, whilst individuals are not reducible to the contexts within which they operate, nor are their actions intelligible without them.

    Adopting a relational perspective enables us to view Eichmann’s agency in its full complexity: he undoubtedly retained some measure of agency (rather than being a mere passive instrument), but at the same time his agency cannot fully be grasped without acknowledging the situational pressures to which he was subjected.

    Against this background, one of the central questions for international criminal law is to determine, from a normative perspective, what types of situational pressures should be deemed resistible temptations, and therefore legally irrelevant to culpability determinations, and those that should be considered exculpatory or to some degree mitigating and therefore legally relevant.

    Once agency is not reduced to a zero-sum game, but rather viewed along a spectrum, it seems plausible that mid-level perpetrators may be found to retain a sufficient degree of agency to be held accountable pursuant to the organizational variant of indirect perpetration.

  2. Thanks for the post . The issue , represents hell of complications , but just to scratch the surface :

    That justification , of being an instrument , typically , depends on the nature of the offence . Nature of the offence , has to do with complex factors :

    Jus cogens
    Mistake ( law or facts )
    International or national
    Prima facie
    Immunity

    There are some offences , considered as jus cogens, means : whatsoever , no justification , no immunity , of any kind , can and should be justified ( and any way , being an instrument ) here for example , the offence of torture , here I quote article 2 to the :

    ” Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ” , here :

    2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

    So , the language is clear and conclusive , no balance :

    ” Whatsoever ” , ” any other public emergency … ” nothing on earth can justify torture !! That much , that :

    It would strip of , the immunity of head of state ( since , can’t be then , integral part of his function as such as you know probably , or not ) .

    You could look also to article 33 to the Rome statute , reading so :

    Superior orders and prescription of law

    33 .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.

    So ,one could read clearly , that :

    genocide or crimes against humanity , are out of possible scope of legal order been given to one ” instrument ” , since , those are jus cogens , while war crimes , are somehow , more ” tolerable ” in the eyes of the international legislator .

    Well , one scroll , can’t have it all …..

    Thanks

  3. Typical plea of superior orders, which should have fallen and did indeed fall on deaf ears. As Hannah Arendt reminds us in her Banality of Evil, Eichmann was a person who has melted his own personality in that of his Führer and the State. He had this wicked sense of hierarchy, which enabled him to commit those crimes. That said, even the German Military Code of 1872 (Article 47) did clearly acknowledge the culpability of a person who commit, under the orders of a superior, those actions/omissions that were illegal.

  4. Above-mentioned Article 47 is as follows:


    Wird durch die Ausführung eines Befehls in Dienstsachen ein Strafgesetz verletzt, so ist dafür der befehlende Vorgesetze allein verantwortlich. Es trifft jedoch den gehorchenden Untergebenen die Strafe des Theilnehmers:
    1) wenn er den ihm ertheilten Befehl überschritten hat, oder
    2) wenn ihm bekannt gewesen, daß der Befehl des Vorgesetzten eine Handlung betraf, welche ein bürgerliches oder militärisches Verbrechen oder Vergehen bezweckte.

  5. Thank you for this post, Jens.

    The idea of Eichmann seeing himself as an instrument in the hands of those above him really plays back to the criticism that Roxin’s Organisationsherrschaft theory makes sense only when we are applying it to those at the very top of the said hierarchical system of power. A mid-ranking member of an organization – such as Eichmann (who, ironically, was Roxin’s paradigmatic example for this theory) – could be said to exercise control only if his actions are considered in isolation, outside the complete picture of intricate power relationships that shape such an organization. Or, as Weigend said:

    “to make the distinction between perpetratorship and accessorial liability depend on the issue of factual ‘domination’ of the criminal act leads to unpredictable results depending on the existence of other actors and the relative degree of their ‘domination’”

    I am curious, what do you think about the idea that, in view of the above relativism argument, indirect perpetration liability (based on organized structures of power) should be reserved solely for the leadership-level, whereas the scope of ordering liability would cover the mid-level guys like Eichmann?

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