Archive/File: people/e/eichmann.adolf/transcripts/Appeal/Appeal-Session-07-05
Last-Modified: 1999/06/15

(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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