Archive/File: people/e/eichmann.adolf/transcripts/Appeal/Appeal-Session-01-01
Last-Modified: 1999/06/15

        IN THE COURT OF ISRAEL SITTING AS A COURT OF
                       CRIMINAL APPEAL
                              
                 Criminal Appeal No. 336/61
                              
                              
                 ADOLF EICHMANN - Appellant
                              
                           Versus
                              
              THE ATTORNEY GENERAL - Respondent

Before:

     His Honour, the President, Mr. Justice Yitzchak Olshan
     His Honour, the Deputy President, Mr. Justice Shim'on
     Agranat
     His Honour, Mr. Justice Moshe Silberg
     His Honour, Mr. Justice Yoel Sussmann
     His Honour, Mr. Justice Alfred Witkon
     Clerks of the Court:  Messrs. J. Bodenheimer, A.
     Walfisch
     
     For the Appellant Adolf Eichmann:
     Dr. Robert Servatius
     
     For the Respondent:   Mr. Gideon Hausner, Attorney
     General
     Mr. Gabriel Bach, Assistant State Attorney
     Mr. Ya'acov Bar-Or, Assistant State Attorney
     Mr. Zvi Terlo, Assistant State Attorney
     Dr. Ya'akov Robinson, Assistant to the Attorney General

Appeal against conviction in the Criminal Case No. 40/61 of
the District Court of Jerusalem, dated 12 December 1961, and
against the sentence dated 15 December 1961 - pronounced by
Their Honours, Judges Moshe Landau, Benjamin Halevi and
Yitzchak Raveh.

SESSION NO. 1

16 Adar Bet 5722 (22 March 1962)

President  Please proceed, Dr. Servatius.

Dr. Servatius:   Mr. President, Your Honours, I have
submitted, in support of the appeal, two sets of written
arguments comprising a number of applications for taking
evidence.  I respectfully request directions from Your
Honour, Mr. President, as to whether to submit my arguments
on these applications before proceeding or whether I may do
so in the course of my oral pleading in support of the
appeal.

President:  You may do so in the course of the hearing of
the appeal.

Dr. Servatius:  Thank you, Mr. President.

Mr. President, Your Honours, the Defence has filed an appeal
against the Judgment of the District Court by which it
requests to change the conviction and the sentence. In the
two sets of written arguments containing the grounds of
appeal I have set forth a number of propositions which will
be the subject of my address. However, I shall confine
myself to the essential issues, and in respect of the rest,
I request that Your Honours refer to the written material.

The first ground of appeal refers to the question of the
jurisdiction of the Court which has to be examined ex
officio. The Defence had submitted that owing to the
abduction of the Accused, the Court did not have the power
of jurisdiction in the case. The District Court has answered
the question of its jurisdiction in the affirmative,
relying, in the main, upon precedents from American and
English jurisprudence. However, the cases referred to cannot
be relied upon as precedents as the facts in the case under
review are fundamentally different. In all the cases quoted
as precedents the offender was brought to trial before a
Court which had jurisdiction to try him at the time of the
commission of the offence. The offender was brought to trial
before a Court from whose jurisdiction he had escaped. The
Accused Eichmann had not escaped from the jurisdiction of
the Israeli Court.

In the case of a foreign national living abroad, a claim
for jurisdiction made under the Nazis and Nazi Collaborators
(Punishment) Law, 5710-1950, cannot turn him into an
absconding offender with retrospective effect. Furthermore,
the former decisions cannot be used as precedents for
another reason. These decisions established the rule that
the judge is not empowered to examine whether the accused
has been brought before him in his capacity as a competent
judge. In such a case, the accused is advised to submit to
the appropriate government his complaint of force used
against him by the agencies of the administration.

However, in the case of the Accused, it is quite obvious
that the persons carrying out the abduction did so with the
co-operation of the government. It was precisely the State
itself which carried out the abduction.  Therefore, no
authority exists before which the Accused can bring his
complaint. He can ask for relief only from the court before
which he is brought. It cannot be the law that the court is
empowered to declare that it is prevented from examining the
infringement of the law as established by the Security
Council of the United Nations.

As to the fact that the abduction of the Accused was carried
out by order of the authorities, I repeat my written
application for the examination of the witnesses Shimoni and
Tohar. Should it appear from their testimony that an order
was given by the authorities, the Court will have to examine
the question whether, under those circumstances, the lower
court had authority to try the Accused.

Furthermore, the District Court ruled that only the State,
and not the Accused as an individual, is legally entitled to
complain of the infringement of international law. The Court
stated: the Republic of Argentina, which alone was entitled
to complain, waived its right to intervene. However, it can
hardly be said that such a waiver had taken place. The final
"Mutual declaration of the States of Israel and Argentina"
means only that any negotiations in the matters involved are
deemed to have come to an end.  However, that means only
that in the diplomatic intercourse no further attention will
be given to any obstruction which may arise from the
incident.

In fact, further steps were taken and the judicial
authorities of the Republic of Argentina requested
explanations of the incident from the State of Israel. This
can be learned from publications in the press. Therefore,
the incident has not yet been settled finally. In this
respect, I beg to repeat my application to serve the
Ministers of Justice of the States of Israel and Argentina
with a request to supply information in this matter.

Moreover, it is not correct to state that an individual is
not entitled to apply for relief for such a violation of the
law. Modern international law imposes obligations upon the
individual, in addition to the application of sanctions;
this must be compensated for, by granting the individual the
right for personal redress against violations of
international law.

The United Nations Declaration of Human Rights of 10
December 1948 and the Convention for the Protection of Human
Rights and Fundamental Liberties, signed in Rome on 4
November l950, and based upon that Declaration, are
pioneering steps in that direction. So far, Israel has not
yet joined that Convention. However, the United Nations
Declaration and the Convention demonstrate a basic principle
which ought to serve as a guideline to every country. I
refer to Article 5 of the Convention which states:

     "Everybody is entitled to liberty and security.

     "A person shall not be deprived of his liberty save in
     the following cases and in accordance with the
     procedure prescribed by law."

Later on, it is stated, inter alia, in sub-article "c",

     "if he has been legally arrested or kept under arrest
     for the purpose of being brought before the competent
     judicial authority..."

Under these provisions, all the precedents quoted by the
District Court have become obsolete, and in the case under
review - this is decisive from the legal point of view.

In this connection, reference has also to be made to the
Convention for the Prevention and Punishment of Genocide.
The Convention states that the exercise of the power to
inflict punishment is subject to the condition that the
offender is found within the custody of the injured state.
By this provision, even the power to extradite to another
state is excluded.

Furthermore, the Defence has argued that the authority of
the Court cannot be claimed on the strength of provisions in
the municipal law. The District Court has answered the
question of its jurisdiction in the affirmative, basing
itself on the provisions of the Nazis and Nazi Collaborators
(Punishment) Law, 5710-1950. As to the retrospective effect
of that law, it has been set forth in the Judgment that the
acts imputed to the Accused deserved punishment already
prior to the enactment of the law. This argument cannot be
accepted. A law is in existence only where also its
enforcement is possible and is actually carried out.
Precisely these conditions are not complied with in
international political affairs. In these situations the
states provide a barrier for their nationals.

In the present situation, the Accused should not be singled
out as an individual and punished. Politically reprehensible
actions committed by other states through the intermediary
of their agents, may deserve punishment, but they cannot be
declared punishable with retrospective effect  by another
state. The power to enact penal laws with retrospective
effect must be confined to the nationals of the enacting
state.

Moreover, it cannot be disregarded that the State of Israel
was not yet in existence at the time of the commission of
the offences imputed to the Accused. And furthermore, it
ought not to be disregarded that some Jews have raised
doubts as to the power of the State of Israel to enact penal
laws with retrospective effect and have voiced misgivings.

The District Court has explained that international law is
no obstacle to the jurisdiction of the Court and that, in
the case under review, municipal law takes precedence over
international law. However, this view is applicable only in
cases where no contradiction between both laws exists.
However, where such a contradiction does exist,
international law will take precedence; otherwise the rules
of international law might be declared inapplicable at any
time. But this is precisely the effect of the Nazis and Nazi
Collaborators (Punishment) Law, 5710-1950, where
retrospective application has been provided for in respect
of foreign nationals who acted as agents of the State.

In support of its claim for jurisdiction, the District Court
relies, furthermore, upon the universal character of the
offence and of the power to exercise criminal jurisdiction.
However, in the case under review, this argument cannot
support the claim for jurisdiction. The District Court
wrongly relies upon the Convention for the Prevention and
Punishment of Genocide, in order to establish its universal
power of punishment. For it is precisely this Convention
which provides that the exercise of criminal jurisdiction
depends upon the offender being in the custody of the
injured state.

Furthermore, the District Court emphasizes that no
international tribunal exists to try the Accused, and it
concludes that this fact supports its own claim for
jurisdiction.  However, no international tribunal is
necessary, as a German tribunal having jurisdiction does
exist and is available for the relevant purpose. The German
tribunal will also be prepared to try the case, as it has
done in similar cases.

Moreover, the claim for the power to exercise criminal
jurisdiction cannot be supported either by the view held by
Hugo Grotius, the authority on international law.  Grotius
regards the exercise of criminal jurisdiction by the injured
state as being only auxiliary. The principle postulated by
him reads aut dedere aut punire, that is to say: In the
first place the offender is to be brought before the
tribunal of the state which has jurisdiction.

The Government of the Federal Republic of Germany so far has
not made any request for the extradition of the Accused. Its
Foreign Ministry has rejected an application of the Accused
to intervene in the matter. However, in its capacity as a
signatory to the Convention for the Protection of Human
Rights and Fundamental Liberties, the Federal Government is
bound to intervene against the abduction of the Accused for
the purpose of his trial by a tribunal which lacks
jurisdiction. The Accused will submit to an administrative
tribunal the legally admissible claim for redress against
the refusal of the Foreign Ministry.  Should the Accused not
be granted relief by the aforesaid tribunal, he will
exercise his right under Article 25 of the Convention. By
virtue of this provision he is entitled to apply for relief,
in his capacity as an individual, to the Commission
established by the United Nations.  His application will be
well founded, if he relies on the violation of his
fundamental rights and his rights of liberty, established by
the Security Council of the United Nations.

The precedents quoted by the District Court in support of
its claim for universal jurisdiction, also do not apply in
the present case. They are distinguished from the present
case by the fact that they deal with offences committed
against the laws and against the will of the state. However,
in the present case, the acts were committed specifically in
the execution of the state's wishes.

Furthermore, the District Court held the view that an act

committed as aforesaid does not exclude the criminal
responsibility of the individual if the acts of the state
amounted to deeds of unspeakable cruelty. The District Court
expressed the view that in such a case the state lost its
nature as such and had become a gang of criminals. This
argument does not hold good in the legal sphere. For the
citizen owing allegiance to the state, the offence remains
an Act of State. Moreover, in view of its dimensions, the
act can only be committed by the organized instruments of
the state. The intention of the individual recipient acting
upon the order is not sufficient to establish the commission
of the offence. Even a contrary intention of the citizen
committing the act is irrelevant, having regard to the power
of command vested in the state.

Further grounds of appeal derive from the lack of
jurisdiction of the Court, namely the apprehension of bias
on the part of the Judges. There is no doubt that the Judges
seriously endeavored to rise above feelings likely to
interfere with an objective trial of the facts. But even
such a serious effort finds its limit within psychological
boundaries.

For this reason, the law of every country provides a barrier
for the judge in cases where a connection between the judge
and the offence committed and its consequence may exist.

In the present case the trial concerns political events by
which the judges might be deeply affected not only as
persons belonging to the Jewish People, but also to families
of those who have been persecuted. Inevitably this results
in the creation of a chasm which cannot be bridged.

It is to be apprehended that a judge, when considering the
acts of the Accused, will not be able fully to do justice to
the actual circumstances even when he wishes to do so.

In the present case, this apprehension is obvious and grave.
It has been voiced by renowned jurists and publicists, even
by those who otherwise have taken a strong stand against the
Accused.

A good example of the question of bias is to be found in the
Convention for the Protection of Human Rights and
Fundamental Liberties, where in Article 6(1) it states:

"Everybody is entitled to an equitable, fair and proper
hearing of his cause within reasonable time" -

namely by an independent and unbiased tribunal established
by law.

This right is guaranteed by the right of complaint to the
Commission under Article 25. The reason for the enactment of
this provision is to be found in the experience of
international practice in these matters.

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