MORALITY AND THE INTERNATIONAL LEGAL ORDER

DOIhttp://doi.org/10.1111/j.1468-2230.1968.tb01208.x
AuthorJ. G. Merrills
Publication Date01 Sep 1968
MORALITY AND
THE
INTE,llNATIONAL
LEGALORDER
La paix servira mieux la justice que celle-ci ne servira la paix.”
WHY should the structure
of
the international legal order affect
its
content, in particular its ability to embody principles of morality
?
It
is the aim here to attempt an answer by examining certain aspects
of the Eichmann affair which have hitherto received little attention.
In the process the significance of De Visscher’s words will become
apparent.
On May
11,
1960,
Adolf Eichmann, who had been living in
Argentina for some time under the name of Richard Klementz, was
taken to Israel by certain Israeli nationals.
It
is
not clear whether
Eichmann left voluntarily
or
under duress
or
how far those who
removed him were acting with the authority of Idrael. What is
clear is that the removal of Eichmann from Argentina was performed
without the knowledge
or
authority
of
Argentina.
For
this reason
Argentina submitted to the Security Council
a
complaint alleging
that by effecting the seizure Israel had violated Argentina’s terri-
torial sovereignty. After some discussion the Security Council
adopted on June
28,
1960,
a resolution
a
condemning Israel’s action.
As a result
of
this resolution Israel and Argentina agreed to settle
their differences and on August
8,
1960,
published a joint statement
to that effect. With Eichmann’s subsequent trial, conviction and
execution we are not here c~ncerned.~ The issue of Eichmann’s
removal from Argentina and the Security Council’s handling of the
matter alone gives rise to some interesting problems
of
the present
adequacy of international law.
which appeared shortly after the above-mentioned
events Professor Silving argued at length the case for the acceptance
into international law of the principle
of
inexigibility, taking the
Eichmann incident as an example of the desirability
of
such a
In an article
1
De
Viasrher,
ThEories
et
Rdalitds
en
Droit International Public,
3rd
ed.,
rev.
2
UN
Doc.
S/4349.
3
The
joint statement was
a8
follows:
The Governments of
Israel
and the
R,cpubIic
of
the Argentine, imbued with the
wish
to
give effect to the resolution
of the Security Council
of
June
23,
1960,
in which the hope was expreased that
the traditionally friendly relations between the two
countries
will be ~advanc~d,
have deoided
to
regard
as
closed the incident that
arose
out
of
the action
takcn by Israeli nationals which infringed fundainen~ttal rights of the State of
Argentina.” See Papadatos,
The
Eichmann
Trial,
p.
60,
note
54.
4
For discussion
of
these citations see,
inter alia,
Fawcett
(1962)
38
B.Y.B.
181
and
Papadatos,
note
3,
supra.
5 55
A.J.I.L.
307,
henceforth cited
as
I‘
Silving,” reprinted in Mueller
and
Wise,
International Criminal
Law,
p.
290.
520
1960,
p.
443.
For
&he
text
of
this resolution see the Appendix.

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