Holocaust education from THE NIZKOR PROJECT

State of Israel
Ministry of Justice

The Trial
Adolf Eichmann

Record of Proceedings in the Supreme Court of Israel

Appeal Session 7
(Part 5 of 9)

(c) The truth is - and this further supports our conclusion - that the application of that principle has been advancing for quite some time beyond the international crime of piracy. We have in mind its application to conventional war crimes as well. As stated in paragraph 11 (c) of this Judgment, whenever the `belligerent' countries tried and punished a member of the armed forces of the enemy for any act contrary to `the laws and customs of war,' it did so because an international crime was involved which the countries of the world as a whole were anxious to prevent. Thus, in his article mentioned in the same paragraph, Cowles reviewed a series of cases that occurred prior to World War II, in which American military tribunals tried the offenders for war crimes committed within territory which was not, at the time, under the control of the armed forces of the United States, but was reached by them only subsequently. On the strength of that review he summarized the position by saying (p. 217):

"Actual practice shows that the jurisdiction assumed by military courts, trying offences against the law of war, has been personal, or universal, not territorial. The jurisdiction, exercised over war crimes, has been of the same nature as that exercised in the case of the pirate, and this broad jurisdiction has been assumed for the same fundamental reason."

He therefore reached the conclusion (p. 218):

"...under international law, every independent state has jurisdiction to punish war criminals in its custody regardless of the nationality of the victim, the time it entered the war, or the place where the offence was committed."

In his article "Legal Basis of Jurisdiction over War Crimes" (published in the British Yearbook of International Law (1951) pp. 390-391), Baxter stated that at the end of World War II cases of war crimes were tried by the British military tribunals in Germany, in which victims were not British subjects but nationals of allied countries:

"In the Zyklon B case...those killed by poison gas supplied by the accused included Belgian, Dutch, French, Czech and Polish nationals, and it was not alleged that any British subjects were among the victims."

(See report of this case in L.R.T.W.C., vol. 1, pp. 93, 102).

In this connection, mention should also be made of a case which was tried by a British military court in Singapore. In that case, the court, composed of British officers, sentenced to death a member of the Japanese army for unlawfully killing American prisoners of war in Saigon (then French Indo-China); that is to say, the court so composed exercised jurisdiction, notwithstanding the fact that the scene of the crime was in French territory, and the victims were not British nationals (L.R.T.W.C., vol. 1, p. 106).

True, the fact that the victims of the crimes in these cases were nationals of countries in alliance with the state prosecuting the offender derogates somewhat from the universal character of the jurisdiction exercised, but, on the other hand, they indicate that substantial strides were made towards extending the use of that principle. Indeed, Baxter concluded, on the basis of these cases and also of those that were tried by the American tribunals in Germany under Control Law No. 10, that:

"International law also surmounts the jurisdictional barrier, as municipal law cannot, by recognizing the universality of jurisdiction enjoyed by war crimes tribunals."

Moreover, according to this expert's opinion, even a neutral country has the right to try a person for a war crime (ibid., p. 392). This is also the view of Greenspan (op. cit.,p. 503):

"Since each sovereign power stands in the position of a guardian of international law, and is equally interested in upholding it, any state has the legal right to try war crimes, even though the crimes have been committed against the nationals of another power and in a conflict to which that state is not a party."

Note 357: "This has been called the doctrine of the Universality of Jurisdiction over war crimes."

(The expression `war crimes' in the above passage extends also to `crimes against humanity' and `genocide' in time of war: ibid., p. 420).

(d) This is the place to discuss the limitation imposed by most of those who support this principle upon the exercise of universal jurisdiction, namely, that the state which has apprehended the offender must first offer his extradition to the state in which the offence was committed (see sub- paragraph (a) above). This means that only if the second state does not respond to the offer of extradition may the first state arrogate to itself the jurisdiction to try and punish. The above limitation is based upon the approach implicit in the maxim aut dedere aut punire. Counsel for the Appellant also took this approach, and accordingly submitted that, so long as the State of Israel had not offered to extradite his client to Germany - the forum delicti commissi of many of the crimes attributed to him - it has no right to place him on trial. He further contended that the fact of the Appellant's German nationality also obliged Israel to follow the course of extraditing him to that state. As to the last fact, let it be said at once that it cannot avail him, as the requirement of making an offer to extradite the offender to the state of his national origin is supported neither by international law nor by the practice of states (Harvard Research, p. 569).

As to the limitation itself in the sense explained above, we are of the opinion that it has no place in the circumstances of this case. First, as already stated, Counsel for the Appellant has himself admitted that his application to the Government of Western Germany to demand the extradition of his client was refused, and therefore an offer in this sense by the Government of Israel could be of no practical use. Secondly - and this is the principal reason for the rejection of his submission - the idea behind the above- mentioned limitation is not that the requirement to offer the offender to the state in which the offence was committed was designed to prevent the violation of its territorial sovereignty. Its reason is rather a purely practical one: The great majority of the witnesses and the greater part of the evidence are concentrated in that state, and it becomes, therefore, the most convenient place (forum convenicus) for the conduct of the trial. This point was taken by Lauterpacht, in continuing after the passage cited in sub- para. (a) above:

"Territoriality of jurisdiction is a rule of convenience in the sphere of the law of evidence. It is not a requirement of justice or even a necessary postulate of the sovereignty of the state."

Baxter, too, had this meaning of the limitation in mind when he stated (ibid.):

"If a neutral state should, by reason of the availability of the accused witnesses, and evidence, be the most convenient locus in which to try a war crime, there is no reason why that state should not perform that function."

If, therefore, we should consider the above-mentioned contention of Counsel for the Appellant in the light of this practical test, it must be said that the great majority of the witnesses who gave evidence here on the grave crimes attributed to the Appellant, especially those against the Jews, were residents of Israel, and, moreover, the bulk of the vast mass of documents produced was previously gathered and preserved (through Yad Vashem) in the State of Israel. It should be noted that the Appellant himself has relied for his defence on a number of the documents which are in this country and have been made available to him. It is clear, therefore, that it is the State of Israel - not the State of Germany - that must be regarded as the forum convenicus for the trial.

We have also taken into consideration the possible desire of other countries to try the Appellant, insofar as the crimes included in the indictment were committed in those countries or their evil effects were felt there. But what has been said of the practical object that has justified the holding of the trial here is equally applicable to them. It is to be observed that we have not heard of a single protest by any of these countries against conducting the trial in Israel, and it is reasonable to believe that, as Israel has exercised its jurisdiction in this matter, no other state has demanded the right to do so. What is more, it is precisely the fact that the crimes in question and their effects have extended to numerous countries that empties the territorial principle of its content in the present case and justifies Israel in assuming criminal jurisdiction by virtue of the `universal' principle. This is so because Israel could not possibly have decided to which particular country the Appellant ought to have been extradited without the selection being arbitrary:

"The allegedly general principle of law entitling a man to be tried where his offences are charged to have been committed is rendered nugatory...by the fact that his offences were committed in a great number of places. Application of the territoriality principle in this instance would thus lead to an arbitrary choice" (Helen Silving, op. cit., p. 335).

It follows that the aut dedere rule cannot assist the Appellant in the circumstances of this case.

(e) Counsel for the Appellant has further submitted that, under Article 6 of the Genocide Convention, a person accused of this crime shall be tried by a court of competent jurisdiction of the state in which it was committed. According to his submission, that Article has confirmed the application of the `territorial' principle, and the `universal' principle, therefore, is implicitly negated. The reply to this contention was given by the District Court in paragraph 21 et seq. of its judgment: That Article 6 imposes upon the parties contractual obligations with future effect, that is to say, obligations which bind them to prosecute for crimes of `genocide' which will be committed within their territories in the future. This obligation, however, has nothing to do with the universal power vested in every state to prosecute for crimes of this type committed in the past - a power which is based on customary international law.

(f) We sum up our views on this subject as follows: Not only are all the crimes attributed to the Appellant of an international character, but they are crimes whose evil and murderous effects were so widespread as to shake the stability of the international community to its very foundations. The State of Israel, therefore, was entitled, pursuant to the principle of universal jurisdiction, and acting in the capacity of guardian of international law and agents for its enforcement, to try the Appellant. This being the case, it is immaterial that the State of Israel did not exist at the time the offences were committed. Here, therefore, is an additional reason - one based on a positive approach - for rejecting the second `jurisdictional' contention of Counsel for the Appellant.

We wish to add one further observation. In regard to the crimes directed against the Jews, the District Court found additional support for its jurisdiction in the connecting link between the State of Israel and the Jewish People, including that between the State of Israel and the Jewish victims of the Catastrophe, and the National Home in Palestine, as explained in its judgment. It therefore upheld its criminal jurisdiction also by virtue of the protective principle and the principle of passive personality. It should be clear that we fully agree with every word said by the Court on this subject in paragraphs 31-38 of its judgment. If we, in our judgment, have concentrated on the international and universal character of the crimes for which the Appellant has been convicted, one of the reasons for our doing so is that some of them were directed against non-Jewish groups (Poles, Slovenes, Czechs and Gypsies).

13. It will be convenient if at this point we deal first with the fourth contention of Counsel for the Appellant, which is also of a jurisdictional character. It will be recalled that he submitted that his client was brought to this country against his will, without the consent of his country of residence (Argentina), and by the agents of the State of Israel. Counsel for the Appellant complained before us against the District Court's refusal to grant his application for the hearing of testimony to prove that the Government of Israel was implicated in the act of abduction, and he repeated his application in this Court.

This contention is not connected with the two preceding contentions, as it negates the right of the State of Israel to try the Appellant for the crimes in question because of the circumstances under which he was brought here, while the others negate such right even if he were to be tried in this country after having arrived here of his own free will. We have no intention of dealing with this contention at any length, for it has been analysed with great thoroughness by the District Court (paragraphs 41-52 of its Judgment). Relying on a long array of local, British, American and Continental precedents, which were set out extensively in the Judgment, the Court has reached the following conclusions:

(1) In the absence of an extradition agreement between the state to which a `fugitive offender' has been brought for trial and the country of `asylum' (from which he was removed by force or by stratagem) - and even if there existed such an agreement between the two countries, but the offender was not extradited to the first country in accordance therewith - the Court will not investigate the circumstances in which he was detained and brought to the area of jurisdiction.

(2) This also applies if it is the offender's contention that the abduction was carried out by the agents of the state prosecuting him, since in such a case the right violated is not that of the offender, but the sovereign right of the state aggrieved. In other words, the violation of the right raises a question - either political or one of a breach of international law - between the two countries concerned. It must therefore find its solution at this international level, and is not justiciable before the court into whose area of jurisdiction the offender has been brought.

(3) From the point of view of international law, the aggrieved state may condone the violation of its sovereignty and waive its claims, including the claim for the return of the offender to its territory, and such waiver may be explicit or by acquiescence.

(4) Only in one eventuality has a fugitive offender a right of immunity - when he has been extradited by the country of asylum to the country requesting his extradition for a specific offence, which is not the offence for which he is tried.

(5) The Appellant was not extradited to Israel by Argentina, and the State of Israel is not bound by any agreement with Argentina to try him for another specific offence, or not to try him for the offences for which he is being tried in this case.

(6) Moreover, following upon the Resolution of the Security Council of the United Nations of 23.6.60 (exhibit T/1), the Governments of Argentina and Israel settled the dispute between them when they issued, on 3.8.60 - and that was before the indictment was presented - a joint communique (exhibit T/4) saying that they "resolved to view as settled the incident which was caused in consequence of the action of citizens of Israel, which violated the basic rights of the State of Argentina." This means that Argentina has condoned the violation of her sovereignty and has waived her claims, including that for the return of the Appellant. Any violation of international law that may have been involved in this incident has thus been remedied.

(7) The rights of asylum and immunity belong to the country of asylum, not to the offender. It was not for the Appellant, therefore, to force Argentina, a foreign sovereign state, to give him asylum against its will, especially since he was a `wanted war criminal,' concealed his true identity, and resided there subsequently `under an assumed name and on forged papers.' It follows, therefore, that the State of Argentina gave him no asylum or refuge from the outset, while, by the declaration of the settlement of the incident and the waiver of the claim for his return, it refused, finally, to grant him asylum.

(8) In view of the foregoing, there was no room for hearing the evidence which Counsel for the Appellant sought to produce on the circumstances of the abduction.

As stated above, we agree with the reasoning of the Court in its entirety, and shall therefore content ourselves here with a brief reply to some of the contentions by which Counsel for the Appellant sought to destroy it.

(a) One contention is that the authorities on which the Court based its conclusions - especially British and American judgments - all deal with an offender who fled from the area of jurisdiction of a court that was already competent to try him at the time he committed the offence, whereas that rule cannot apply here because the State of Israel did not exist at the time of the commission of the crimes attributed to the Appellant; they were not committed within its territory, and he did not escape from the jurisdiction of an Israeli court.

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