The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of Adolf Eichmann
Session 1
(Part 5 of 5)

Holocaust, Adolf Eichmann, Eichmann trial, holocaust, Jewish holocaust
Attorney General: May it please the Court. I am not afraid of an inundation since the Court will have ample material after we conclude our case, to be able to judge what is true and what is false and will itself be able to sort the wheat from the chaff in the light of other evidence which I hope will be credible. In any case we are dealing with a law containing special provisions concerning the rules of evidence. And I visualize that one of the difficulties in this case is the material concerning which a decision must be taken from the point of view of the rules of evidence. And, therefore, I would not be so concerned. But I am ready to take this one step further.

And if the argument of Defence Counsel is that these people are not willing to volunteer of their own good will to give him affidavits and I cannot force them to give affidavits - however if this case were in Germany then I would, with the authority of the Court, summon them and they would be obliged to appear and give evidence, whereas I cannot force them to make affidavits before a notary or before a consul.

If this is the argument, then I declare here that I would be ready, in an appropriate case and after being convinced that it is desirable to do so, to make use for this purpose of the arrangements for legal assistance existing between the State of Israel and the Federal Republic, in order that persons who have something to say should appear before a Judge in Germany. There they will be examined before representatives of both sides - there there would be cross-examination; there their statements would be examined from the point of view of truthfulness.

And I would ask this Court - or more correctly I would associate myself with the application of Defence Counsel, since he is interested in this - to submit this material as evidence in this case. I think in so doing I have gone to the limit of my ability to promise Defence Counsel that all relevant evidence, if he has such, can be brought before this Court. Despite this I have not, to this day, received from Defence Counsel any notification whatsoever concerning the bringing of a particular witness who fears for his personal safetly or his indictment in the State of Israel.

And now, with the Court's permission, in the time remaining for me, I shall touch upon the legal problems arising out of the question of the detention and transfer of a person to another jurisdiction. My argument is that where a person is legally Accused of committing a crime and he is legally kept under arrest at the time when he is brought before the Court and stands his trial, the Court should not examine the circumstances which led to the fact that the Accused: is brought before the Court. In other words - the circumstances of the Accused's detention, his seizure and his transfer are not relevant for competence and they contain nothing which can affect this competence, and since they are not relevant, they should not be considered and evidence concerning them should not be heard.

This rule has been written into the statue books of countries observing the rule of law since the judgment in Ex parte Scott, reported in Vol. 109 of the "English Reports," on page 166. And these were the facts: An indictment for perjury was preferred in England against a woman named Susanna Scott. A warrant for arrest was issued against her. With the Court's permission I shall read the remaining facts from the judgment itself appearing in the Report:

"It appeared by the affidavits that a bill of indictment for perjury had been found against her, and on the 11 February, Lord Tenterden C.J. granted a warrant for her apprehension, in order that she might appear and plead to the indictment, and C. Ruthven, a police officer, to whom the warrant was specially directed, apprehended Scott in Brussels; she applied to the English Ambassador there for assistance but he refused to interfere, and Ruthven conveyed her to Ostend, and thence to England, and on the 9th of April, she was brought before Lord Tenterden, and by him committed to the K.B. Prison. A bill was found against the prisoner for a misdemeanour; there is no doubt that she is now rightfully in custody for want of bail. And when a party is liable to be detained on a criminal charge, the Court will not inquire into the manner in which the caption was effected."
On the following page Lord Tenterden says:
"The question, therefore, is this, whether if a person is 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."
; The same problem was considered in England 120 years later. And I read from the judgment in R.v.O/C Depot Battalion P.A.S.C. Colchester. Ex parte Elliott (1949) 1, "All England Reports," page 373. This was a case of a British deserter who was arrested by British officers in Antwerp two years after his desertion and who was brought to England. He obtained a decree nisi on the basis of the argument that he was held under arrest illegally owing to the fact that he was brought from Belgium against his will and under coercion. I quote from the judgment of Lord Goddard on page 376.
"On the applicant's part two points have been taken. It is said that his arrest was illegal because (i) the British authorities had no authority to arrest him in Belgium and he was arrested contrary to Belgian Law, and (ii) his arrest was not in compliance with the provisions of s. 154 of the Army Act. 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. If he has been arrested in a foreign country and detained improperly from the time that he was first arrested until the time he lands in this country, he may have a remedy against the person who arrested and detained him, but that does not entitle him to be discharged, though it may influence the court if they think there was something irregular or improper in the arrest. Once he is before the court, it can hold him to bail until his trial and conviction."
That is to say, the question of the kidnapping is likely to have an effect, possibly on release on bail. After quoting Ex parte Scott with approval, the Court analyses the Scottish decision and states the following at the end of page 377:
"That, again, is a perfectly clear and unambiguous statement of the law administered in Scotland. It shows that the law of both countries is exactly the same on this point and that 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 bave been arrested in Belgium are no concern of this court."
The Supreme Court of Palestine in the days of the Mandate followed the English and American practice and laid down the same principle in Criminal Appeal 14/42, Afuna vs Attorney General: ("The Law Reports of Palestine" Vol. 9/1942), page 63). Here it was established that a man fled to Syria after being suspected of committing murder. He was arrested in Damascus by a British sergeant and brought to this country for trial. He argued that his arrest had been illegal and accordingly he should be released. The Supreme Court did not accept this argument. I read from page 66:
"Counsel on neither side was able to refer us to any direct authority covering a case, such as the present, where a person has been irregularly apprehended not as a result of extradition proceeding at all."
I quote the American report from the judgment of the Mandatory Court:
"In our opinion, the law is correctly stated in volume 4 of Moore's Digest of International Law, at page 311.

1) 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.'"

And the Mandatory court goes on to say:
"Accepting that view of the law we think that there is no substance in the extradition point."
In the United States of America there are special constitutional guarantees for protecting the rights of the individual. As it is a federation of states, it is very sensitive to the problem of the competence of the central Government and of the competence of the states comprising the United States of America as between themselves and of the relations between the United States and foreign countries. Furthermore: American courts have laid down that public international law is part of the internal law of the United States, and it applies to the relations of the United States with foreign countries and to the relation of the states with one another. The Court will see this practice in "American Jurisprudence" vol 30, pages 440-441.
"Unless there is some treaty or statute to the contrary, the law of nations is to be treated as part of the law of the land. The courts of all nations judicially notice this law, and it must be ascertained and administered by the courts of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. Occasionally the statutes conferring jurisdiction to hear and determine particular controversies require the courts to render their decisions in accordance with the rules of international law. It has been held that an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains. When the United States declared their independence, they were bound to receive the law of nations in its modern state of purity and refinement. International law forms a part of the law of the several states. It is a part of the law of every state which is enforced by its courts without any constitutional or statutory act or incorporation by reference, and while a court may be without jurisdiction to enforce international law in a given case by reason of some controlling statute, nevertheless, relevant provisions of the law of nations are legally paramount whenever international rights and duties are involved before the court having jurisdiction to enforce them."
And in that country, where such is its relationship to international law, a general practice has been established the contents of which I shall read from Corpus Juris Secundum and thereafter I shall examine it for details.

Presiding Judge: Perhaps you would quote the extract from Corpus Juris Secundum and with this we shall conclude the morning session.

Attorney General: I quote from Criminal Law, vol 22, page 236, paragraph 144 in which the practice was defined in the following terms:


Custody of the Accused: by the court, or his presence therein on a proper charge, is essential to the jurisdiction of the court over him. The manner in which the Accused: is brought before the court, however,is ordinarily immaterial in so far as jurisdiction over him is concerned."

And on page 242, in paragraph 146:
"In accord with the general rule stated in paragraph 144 supra, to the effect that a court will not inquire into the manner in which the Accused: is brought before it, the fact that Accused: has been illegally arrested, or that he has by trickery, force, or without legal authority, or by any illegal means, been brought within the territorial jurisdiction of a state or federal court, does not oust the jurisdiction of that court. Even if in any case there should be a conflict of jurisdiction between two courts, accused, who is before one court for trial, cannot take advantage of the fact that his presence has been illegally or improperly obtained."
Presiding Judge: Is this a convenient point, Mr. Hausner where we may stop?

Attorney General: As you please, your Honour.

Presiding Judge: We shall accordingly stop now. The afternoon session will begin at 16.30 hours, exceptionally, in order to enable us to participate in the funeral of the State Attorney, whose passing we deeply mourn. The next session will be at 16.30 today.

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