Written submissions of the defence
(A) as to the penal jurisdiction of the State of Israel (p.1 ff)
(B) as to the question nullum crimen, nulla poena sine lege stricta et previa (p.77 ff).
11 April 1961
(-) Dr. Servatius
On 11 May 1960, Adolf Eichmann was apprehended in Argentine, where he lived under an assumed name, by members of the Israeli security service. By administering him coffee to which a drug had been added, Eichmann was put into a semi- conscious state, brought into a chartered plane as a "sleeping patient" and in this way abducted to Israel.
On the morning of 23 May 1960 a magistrate issued a warrant of arrest pending investigation. Since that date Eichmann has been under arrest pending investigation. The "Notice of Charge" was served upon the counsel for Eichmann's defence on 1 February 1961.
On 21 February 1961, the Attorney General, Israel, filed in the District Court of Jerusalem an indictment against Eichmann. The indictment is based upon the Israeli Nazis and Nazi Collaborators (Punishment) Law, 5710-1950, in connection with section (2) of the Criminal Code Ordinance, 1936.
In four counts of the writ of indictment the Accused is charged with crimes against the Jewish People (counts 1, 2, 3, 4).
In seven counts of the writ of indictment (counts 5, 6, 7, 9, 10, 11, 12) the Accused is charged with commission of crimes against humanity.
In count 8 of the writ of indictment the Accused is charged with the commission of war crimes.
In three counts of the writ of indictment the Accused is charged with membership in an enemy organization (counts 13, 14 15).
The imminent criminal proceedings in the District Court, Jerusalem, raise a number of questions referring to criminal international law, two of which, above all, will be singled out in this context:
1. The question whether an Israeli court in its capacity as a municipal court has jurisdiction over Eichmann;
2. The question of the meaning "nullum crimen, nulla poena sine lege stricta et previa" in the pending proceedings.
Part 1: The question of the jurisdiction of an Israeli court over the Accused Eichmann;
A: Criminal jurisdiction over foreigners according to the existing Israeli law;According to section 6, the jurisdiction of Israeli courts over criminal offences for the purpose of the "Criminal Code Ordinance 1936" extends to the territory of Israel as well as to any place within three nautical miles of the coast.
I. The general arrangement in the Criminal Code Ordinance, 1936.
1. The relevant legal provisions are laid down in Chapter III, sections 6 and 7.
Strictly speaking, sec. 7 does not constitute an extension of the principle. Its purpose is to clarify the applicability of the principle of territoriality - which has been neatly defined in sec. 6 - on such facts which occur partly within, but partly also outside Israeli jurisdiction as defined in sec. 6.
2. The provisions regulating generally the subject of jurisdiction in Israeli law are therefore characterized by strong emphasis given to the principle of territoriality.
No objections stemming from the rules of criminal international law are voiced against finding a solution to the problem of jurisdiction exclusively on the basis of the territorial principle. On the contrary: the principle of territorial jurisdiction can be described almost as a basic rule of criminal international law. For a long time, in Anglo-American jurisdictions, particular emphasis is placed on the basic character of this principle and its priority with respect to any other principle; the provisions made in sec. 6 and 7 are therefore precisely in line with the traditional legal conceptions prevailing in Anglo-American jurisdictions as to the question of the jurisdiction of a municipal court over foreigners - a fact which is not particularly surprising in view of the origin of the Criminal Code Ordinance (former Mandatory Law; see also the provision for its interpretation in sec. 4 which prescribes that in case of doubt interpretation has to be carried out in accordance with the principles of interpretation obtaining in England and with English legal terms).
II. Deviation from the territorial principle in the Penal Law Revision (Offences committed abroad) Law, 5716-1955.
1. Sec. 2 of the aforesaid law - which is relevant in this context - results in a number of deviations from the territorial principle framed more strictly in the Criminal Code Ordinance, in respect of foreigners and of offences committed by them abroad.
According to this provision Israel has jurisdiction over foreigners in respect to the following offences:
1) Offences against the "Flag and Emblem Law, 5709 - 1949";
2) Offences against the "State Seal Law, 5710 - 1949";
3) Offences against the "Official Secrets Ordinance";
4) Offences against secs. 49 to 62 of the "Criminal Code Ordinance" (which contain the provisions concerning the security of the State).
2. These deviations from the territorial principle are characterized by its strict limitation to the subject of certain categories of offences. Moreover these deviations are unobjectionable, according to the standards of international criminal law, being entirely within the limits of exceptions which are considered by many nations as acceptable.
(a) Deviations from the territorial principle in favour of the real or protective principle, where the security of the State and the existence of its constitution are under attack, are not prohibited, at any rate, by international law. The "Draft Convention on Jurisdiction with Respect to Crime" with which the Harvard Research of 1935, opens, is also based on the protective principle, in its art. 7, when a crime is committed by an alien abroad against the "security, territorial integrity or political independence" of a state.
The deviations mentioned above in (3) and (4) can therefore be described as exceptions - which at any rate are not prohibited by international law from the territorial principle in favour of the protective principle.
However, in this context, it should be mentioned that in Anglo-American jurisdiction exceptions from the territorial principle even in favour of the protective principle have always been treated with the utmost reserve.. Thus Salmond in describing the position under English law, arrives at the conclusion that English criminal law admits exceptions from the territorial principle in respect of acts of piracy, treason, murder and bigamy, adding however the important restriction of "committed by British subjects in any part of the world." In no way has it escaped Salmond's attention that recently English decisions have admitted an exception even from that principle; he mentions the case of Rex v. Joyce. However, at the same time, Salmond emphasizes the exceptional character of this decision which he justifies by the "peculiar circumstances" of this case. This was the case of William Joyce, an American citizen who had obtained the issue of a British passport under false pretences, the validity of which had been extended several times and for the last time, up to 1 July 1940. During the War Joyce had carried on propaganda against England from German broadcasting stations. When he was arrested in Germany in 1955, his English passport was no longer found to be in his possession.
The legal question to be determined by the House of Lords in the last resort, was
"whether an alien who had been resident within the realm can be held guilty and convicted in this country of high treason in respect of acts committed by him outside the realm."It is remarkable in this wording of the legal question that to a certain extent it relates to the territorial principle, by establishing the fact that the Accused "has been resident within the realm" - a finding which is completely irrelevant if the case is to be decided only on the basis of the protective principle. It serves also as evidence of the restrictive tendency when admitting exceptions from the territorial principle, that the court of first instance has based its decision upon the alleged British nationality, an allegation which could not be maintained in the court of appellate jurisdiction. In other words: The court of first instance tried to remain within the limits of the exception generally recognized in England in cases of high treason (deviation from the territorial principle in favour of the protective principle only in conjunction with the active personality principle, that is to say: jurisdiction only over British citizens.)
But even when the assumption that Joyce was a British citizen could not be maintained anymore in the court of appellate jurisdiction, did the House of Lords not exceed the narrow limits of an exception (which have just been described) when convicting the Accused? The court based its conviction upon the active personality principle. It held that, although Joyce had not been a British citizen, nevertheless the possession of a British passport had given rise to duties of allegiance owed by him to the King and he had transgressed these duties by his broadcasting activity in Germany.
The result to be arrived at from the aforesaid, is therefore that in English law the priority of the territorial principle is unchallenged, that - even in exceptional political cases - English decisions have admitted exceptions in favour of the protective principle only to a very limited extent, namely only insofar as these exceptions can be justified by the active personality principle.
(b) There are no provisions in international law of a prohibitive nature which might constitute an obstacle to the deviation from the territorial principle in favour of the principle of world law (universality principle) as limited in regard to its subject matter.
The extension of Israeli jurisdiction over aliens in respect of offences against the "Flag and the Emblem Law" and the "State Seal Law" might be attributed to the protective principle, as limited in regard to its subject matter.
The prosecution of the imitation of state seals according to the universality principle is in conformity with international law
The conclusion is that Israeli legislation, when deviating from the territorial principle in favour of the universality principle has not exceeded the limits of customary rules, the prosecution of which, in accordance with the universality principle, is generally recognized.
III. Deviations from the territoriality principle in the Nazis and Nazi Collaborators (Punishment Law, 5710-1950.
The examinations made so far have shown that the international criminal law of Israel is based generally upon rules distinguished by their most meticulous adhesion to the territorial principle, and that exceptions from this principle are admitted, in favour of the protective or the universality principle, only to a very limited extent.
This basic character of the Israeli legal system - which is therefore in conformity with the Anglo-American legal tradition - has to be remembered, when examining the question how the question of Israeli criminal jurisdiction over aliens is dealt with in the "Nazis and Nazi Collaborators (Punishment) Law." Only then will the observer become aware of the whole extent of the total departure - in this law - from all the principles prevailing in the general Israeli criminal law regarding jurisdiction over offences committed abroad by aliens. Already in dealing with this question and its solution the nature of this law becomes apparent as that of a typical exceptional law, and the following detailed examination will demonstrate that in so defining this law, no hasty generalizing view is taken. No doubt the purpose of the "Nazis and Nazi Collaborators (Punishment) Law" is to establish a basis for the punishment of offences which, in view of the criminal energy of the perpetrators, the extent of the harm done, their contents of criminality and guilt, exceed the limits of "normal" criminal behaviour to such an extent that they can be called only "exceptional offences." However, whether this exceptional character of the offences legally justifies the adoption of an exceptional law in order to enable the persecution of these offences, whether such an exceptional law will further the re-establishment, the safeguard and the preservation of law and justice - this question can for the time being only be raised without as yet attempting to answer it.
As to the details of the matter, the following statements have to be made:
1. The "Nazis and Nazi Collaborators (Punishment) Law" provides for punishment and Israeli jurisdiction regardless of the question, whether the offence has been committed on Israeli territory; moreover, it does not provide for any territorial restriction, as e.g. that Israel has jurisdiction only over such offences which have been committed within the former British Mandatory territory of Palestine. Formally, the only territorial restriction is provided for by the adoption of the term "in enemy country." However, this "restriction" is not to be misunderstood, by any means, as a deference to the territorial principle. It results in a territorial restriction only insofar as Israeli jurisdiction in respect to the offences defined by the law is not claimed totally without taking into account the place where the offence has been committed. For according to the definition in sec. 16 "enemy country" means:
(a) Germany during the period of the Nazi Regime;
(b) any other Axis state during the period of the war between it and the Allied Powers;
(c) any territory which, during the whole or part of the period of the Nazi Regime, was de facto under German rule, for the time during which it was de facto under German rule as aforesaid;
(d) any territory which was de facto under the rule of any other Axis state, during the whole or part of the period of the war between it and the Allied Powers, for the time during which that territory was de facto under the rule of that Axis state as aforesaid.
Already in this context an additional particular feature of this provision has to be mentioned, namely that the term "enemy" is used, although no state of war had existed - neither between Germany nor any other "Axis state" - and Israel which had not yet come into existence as a State at the time of the Second World War.
2. For the existence of Israeli criminal jurisdiction, the nationality of the person having committed punishable offences is deemed to be irrelevant according to the law in question.