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The Trial of Adolf Eichmann: Judgment
(Part 7 of 70)

39. We should add that the well-known judgment of the International Court of Justice at The Hague in the "Lotus Case" ruled that the principle of territoriality does not limit the power of the state to try crimes and, moreover, any argument against such power must point to a specific rule in international law which negates that power. We have not guided ourselves by this rule which devolves, as it were, the "onus of proof" upon him who contends against such power, but have preferred to base ourselves on positive grounds which establish the jurisdiction of the State of Israel.

40. The second contention of learned Counsel for the Defence was that the trial in Israel of the Accused, following upon his capture in a foreign land, is in conflict with international law and takes away the jurisdiction of the Court. Counsel pleaded that the Accused, who had resided in Argentina under an assumed name, was kidnapped on 11 May 1960 by the agents of the State of Israel, and was forcibly brought to Israel. He requested that two witnesses be heard in proof of his contention that the kidnappers of the Accused acted on orders they received from the Government of Israel or its representatives, a contention to which learned Counsel attached considerable importance, in an effort to prove that he was brought to Israel's area of jurisdiction in violation of international law. He summed up his contentions by submitting that the Court ought not to lend its support to an illegal act of the State, and that in these circumstances the Court has no jurisdiction to try the Accused.

On the other hand, the learned Attorney General pleaded that the jurisdiction of the Court was based upon the Nazis and Nazi Collaborators (Punishment) Law which applied to the Accused and to the acts attributed to him in the indictment; that it is the duty of the Court to do no other than try such crimes; and that in accordance with established judicial precedents in England, the United States and Israel, the Court is not to enter into the circumstances of the arrest of the Accused and of his transference to the area of jurisdiction of the State, these questions having no bearing on the jurisdiction of the Court to try the Accused for the offences for which he is being prosecuted, but only on the foreign relations of the State. The Attorney General added that, with reference to the circumstances of the arrest of the Accused and his transference to Israel, the Republic of Argentina had lodged a complaint with the Security Council of the United Nations, which resolved on 23 June 1960 as follows (document S/4349) (Exhibit T/1):

"The Security Council,

Having examined the complaint that the transfer of Adolf Eichmann to the territory of Israel constitutes a violation of the sovereignty of the Argentine Republic,

Considering that the violation of the sovereignty of a Member State is incompatible with the Charter of the United Nations,

Having regard to the fact that reciprocal respect for and the mutual protection of the sovereign rights of States are an essential condition for their harmonious coexistence,

Noting that the repetition of acts such as that giving rise to this situation would involve a breach of the principles upon which international order is founded, creating an atmosphere of insecurity and distrust incompatible with the preservation of peace,

Mindful of the universal condemnation of the persecution of the Jews under the Nazis and of the concern of people in all countries that Eichmann should be brought to appropriate justice for the crimes of which he is accused,

Noting at the same time that this resolution should in no way be interpreted as condoning the odious crimes of which Eichmann is accused,

1. Declares that acts such as that under consideration, which affect the sovereignty of a Member State and therefore cause international friction, may, if repeated, endanger international peace and security;

2. Requests the Government of Israel to make appropriate reparation in accordance with the Charter of the United Nations and the rules of international law;

3. Expresses the hope that the traditionally friendly relations between Argentina and Israel will be advanced."

Pursuant to this Resolution, the two governments reached an agreement on the settlement of the dispute between them, and on 3 August 1960 issued the following joint communique (T/4):
"Los Gobiernos de la Republica Argentina e Israel, animados por el proposito de dar cumplimiento a la resolucion del Consejo de Seguridad del dia 23 de Junio de 1960 en cuanto expresa la esperanza de que mejoren las relaciones tradicionalmente amistosas entre ambos paises, resuelven considerar concluido el incidente originado en la accion cometida por nacionales israelies en perjuicio de derechos fundamentales del Estado argentino" (The Governments of Argentina and Israel, actuated by an intention to put into effect the resolution of the Security Council of 23 June 1960, insofar as it gives expression to the hope for the improvement of the relations of traditional friendship between the two countries, resolve to view as settled the incident which was caused in the wake of the action of citizens of Israel which violated the basic rights of the State of Argentina).
By our Decision No. 3 of 17 April 1961 (Session 6, Vol. I, p. 60), we dismissed Counsel's objections to the jurisdiction of the Court, and ruled that there is no need to hear the witnesses summoned with reference to his second contention. The following are the reasons for our ruling:

41. It is an established rule of law that a person standing trial for an offence against the laws of a state may not oppose his being tried by reason of the illegality of his arrest, or of the means whereby he was brought to the area of jurisdiction of the state. The courts in England, the United States and Israel have ruled continuously that the circumstances of the arrest and the mode of bringing of the accused into the area of the state have no relevance to his trial, and they consistently refused in all cases to enter into an examination of these circumstances.

The principle was first established in Ex parte Susanna Scott (1829) 9 B. & C. 446; 109 E.R. 106. The applicant was charged in England with the misdemeanour of perjury. A British police officer, in executing the warrant of arrest, specifically addressed to him by Lord Chief Justice Tenterden, arrested the applicant in Belgium. The applicant appealed to the British Ambassador in Belgium, who refused to intervene, and the police officer brought her to England, where an order was issued for her imprisonment pending her trial. She then filed an application for her release by way of abeas corpus. Lord Chief Justice Tenterden dismissed the application, saying:

"I consider the present question to be the same as if the party were now brought into Court under the warrant granted for her apprehension... The question, therefore, is this, whether if a person charged with a crime is found in this country, it is the duty of the Court to take care that such a party shall be amenable to justice, or whether we are to consider the circumstances under which she was brought here. I thought, and still continue to think, that we cannot inquire into them. If the act complained of were done against the law of a foreign country, that country might have vindicated its own law. If it gave her a right of action, she may sue upon it... For these reasons, I am of opinion that the rule must be discharged."
In his summing up to the jury in the case R. v. Nelson and Brand (1867), the Lord Chief Justice, Sir Alexander Cockburn, said (as quoted in O'Higgins, "Unlawful Seizure and Irregular Extradition," 36 British Yearbook of International Law, 1960, p. 285):
"Suppose a man were to commit a crime in this country, say murder, and that before he can be apprehended he escapes into some country with which we have not got an extradition treaty, so that we could not get him delivered up to us by the authorities, and suppose that an English police officer were to pursue the malefactor, and finding him in some place where he could lay his hands upon him, and from which he could easily reach the sea, got him on board a ship and brought him before a magistrate, the magistrate could not refuse to commit him. If he were brought here for trial, it would not be a plea to the jurisdiction of the Court that he had escaped from justice, and that by some illegal means he had been brought back. It would be said, `Nay, you are here; you are charged with having committed a crime, and you must stand your trial. We leave you to settle with the party who may have done an illegal act in bringing you into this position; settle that with him'."
In Ex parte Elliott, 1 All E.R. 373, the court heard an application for habeas corpus of a British soldier who deserted his unit in 1946, was arrested in 1948 in Belgium by two British military officers escorted by two Belgian police officers, was transferred by the British military authorities to England, and was there held in custody pending his trial for desertion. Counsel for applicant pleaded inter alia that the British authorities in Belgium had no power to arrest the applicant, and that he was arrested contrary to Belgian law. Lord Goddard dismissed the application, saying in his judgment (p. 376):
"The point with regard to the arrest in Belgium is entirely false. If a person is arrested abroad and he is brought before a court in this country charged with an offence which that court has jurisdiction to hear, it is no answer for him to say, he being then in lawful custody in this country: `I was arrested contrary to the laws of the State of A or the State of B where I was actually arrested.' He is in custody before the court which has jurisdiction to try him. What is it suggested that the court can do? The court cannot dismiss the charge at once without its being heard. He is charged with an offence against English law, the law applicable to the case."
The Lord Chief Justice concluded his pronouncement on this issue by saying (p. 377):
"We have no power to go into the question, once a prisoner is in lawful custody in this country, of the circumstances in which he may have been brought here. The circumstances in which the applicant may have been arrested in Belgium are no concern of this court."
42. The principle is also acknowledged in Palestine judicial precedent. In the application for habeas corpus by Isaac Katz (on behalf of Chaim Novik against the General Officer Commanding the Polish Forces in Palestine, High Court of Justice 71/44 (Palestine Law Reports, Vol. 11, p. 355), Advocate Olshan (as he then was) submitted that Novik, who was tried for desertion by a Polish military tribunal, was brought before that exterritorial tribunal without any decision by a civil court of Palestine, as is required under the Allied Forces Act, was directly surrendered to the Polish forces and was tried. The Chief Justice dismissed the application on the ground that (p. 358) "Provided the Court Martial is properly constituted, and provided the accused, who is before it, is subject to its jurisdiction, the circumstances in which he was arrested and arrived before the Court are not relevant to the question of the jurisdiction of the Court."

In the appeal of Mahmoud Hassan Yassin, known as Afuna v. Attorney General, Criminal Appeal 14/42 (PLR, Vol. 9, p. 63), the Supreme Court heard the case of a "fugitive criminal" who was arrested in Syria by a Palestine Police Sergeant, was forcibly returned to the country, and was sentenced to death by the Court of Criminal Assizes. Counsel for appellant pleaded that by reason of the non- enforcement of the extradition agreement obtaining between the two countries, his client's arrest in Syria and forcible transfer to Palestine were unlawful and the Jerusalem court had no jurisdiction to convict him. The Court of Appeal dismissed the contention on the ground that:

"In our opinion, the law is correctly stated in volume 4 of Moore's Digest of International Law, at page 311. The authority cited is an American (State) case which, of course, is not binding on this Court. Nevertheless we adopt the language used, which is as follows: `Where a fugitive is brought back by kidnapping, or by other irregular means, and not under an extradition treaty, he cannot, although an extradition treaty exists between the two countries, set up in answer to the indictment the unlawful manner in which he was brought within the jurisdiction of the court. It belongs exclusively to the government from whose territory he was wrongfully taken to complain of the violation of its rights.'

"Accepting that view of the law, we think that there is no substance in the extradition point."

The precedent quoted in Moore (ibid.) and referred to in that judgment as "an American (State) case" is no other than Ker v. Illinois, 119, U.S. 436, the leading case in the United States Supreme Court on this issue. At all events, it must be stressed that the American ruling, as summed up by Moore, was in this case expressly "adopted" by the Supreme Court of Palestine.

43. Before we proceed, in the wake of this "adoption," to American judicial precedent, we would dwell briefly on the import of the judgments we have hitherto surveyed from the point of view of international law. The question which presents itself from this point of view is - whether the principle of Ex parte Scott and Ex parte Elliott that the accused may not oppose his being tried by reason of the illegality of his arrest or of the means whereby he was brought to the area of jurisdiction, is limited to the illegality of those means in the sense of the municipal law of the country in question, or is general and also applies to the use of means which are a violation of international law, namely a violation of the sovereignty of a foreign state. The recently published article of O'Higgins quoted above is devoted to the analysis of these judgments, especially the English judgments, from this point of view. The learned author's conclusion is as follows (p. 319):

A British court will probably exercise jurisdiction over a criminal brought before it as the result of a violation of international law. There is, however, no precedent which binds any British court to adopt this view."

This careful evaluation is based on the learned author's view that most English precedents do not, in effect, deal with cases of violation of international law, and that although in Emperor v. Vinayak Damodar Savarkar (1910), I.L.R. 35 Bombay 225 (228) the principle of Ex parte Scott and R.V. Nelson and Brand, was applied in effect to a case where the accused pleaded violation of international law (ibid., p. 286), Lord Reading had expressed a reservation on this issue in R. v. Garrett (1917), 86 L.J. (K.B.) 894, 898.

44. American judicial precedent on this issue is more unequivocal (and this is apparently the reason why the Supreme Court of Palestine, in Criminal Appeal 14/42, (Afuna v. A.G.) preferred to base themselves on this established rule as summed up in Moore's book, rather than on Ex parte Scott (see p. 66 of that judgment). American judgments expressly establish that it makes no difference whether or not the measures whereby the accused was brought into the area of jurisdiction were unlawful in the sense of municipal law or of international law: The uniform rule is that the court will not enter into an examination of this question which is not relevant to the trial of the accused. The ratio of this ruling is that the right to plead violation of the sovereignty of a state is the exclusive right of that state.

Only the sovereign state may raise, or waive, that contention, and the accused has no right to represent the rights of that state. That principle found expression also in English judgments, and indeed American judgments view Ex parte Scott as one of their own precedents.

That principle was well explained by Travers, author of the well-known work Droit Penal International, in his article: "Des arrestations au cas de venue involontaire sur le territoire," 13 Revue de Droit International Prive et de Droit Penal International (1917), 627 et seq.

The learned author, who supports that doctrine as established in the United States, says (p. 643):

"Mais - et c'est un point que nous tenons a mettre en relief - si l'Etat, dont les agents ont ete fautifs, peut, par courtoisie internationale et pour eviter toute tension de rapports, agir d'office, c'est-a-dire ordonner l'elargissement immediat et exprimer des regrets; si l'Etat, dont le territoire a ete viole, peut, de son co66te, adresser toutes protestations et exiger toutes satisfactions, les personnes arre66tees n'ont, par contre, aucun droit de reclamation.

"Elles ne peuvent se faire un titre de l'irregularite commise et profiter de sa perpetration pour obtenir la cessation de leur detention.

"La raison en est double.

"D'abord, l'individu arrete n'a aucune qualite pour parler au nom de la souverainete etrangere; il n'en est pas le representant.

"En second lieu, l'Etat etranger qui, maitre de sa souverainete, peut faire telles concessions qu'il juge convenables; est libre de ratifier tous actes irreguliers. Son silence constitue, tout au moins, une presomption de ratification."

Considerable importance attaches to this pronouncement for the present case, in view of the settlement of the dispute between Argentina and Israel. Whatever we may think of the general legal problem, now that the Governments of Argentina and Israel have issued their joint communique of 3 August 1960 to the effect that both governments have decided to view as liquidated the "incident" whereby the sovereignty of Argentina was violated, the Accused in this case can certainly retain no right to base himself on the "violated sovereignty" of the State of Argentina. The indictment in this case was presented after Argentina had forgiven Israel for that violation of her sovereignty, so that there no longer subsisted any violation of international law. In these circumstances, the Accused cannot presume to be speaking on behalf of Argentina and cannot claim rights which that sovereign state has waived. As Travers said in summing up his article (p. 646):
"Les Etats etant seuls juges des exigences de leur droit de souverainete, le vice, existant en ce cas, ne peut etre invoque que par le gouvernement lese. Il ne saurait appartenir a un malfaiteur quelconque de parler au nom de la souverainete violee."

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