The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of Adolf Eichmann
Session 3
(Part 2 of 3)

Holocaust, Adolf Eichmann, Eichmann trial, holocaust, Jewish holocaust
The United States of America acted in the same way and published "Regulations for the trial of war crimes in the Mediterranean Theater of Operations, provisions regarding Military Commissions in the European Theater of Operation and in the Pacific Theater of Operations."

Presiding Judge: Of what year?

Attorney General: It is not stated here. I read this from the report of the United Nations War Crimes Commission which on 1 October 1946 gave the first survey of legislation for the punishment of war criminals which up to that point had been adopted in various countries.

However, the matter has meanwhile become more far-reaching and comprehensive and has involved many different countries in the east and the west, in the north and the south, all of whom found it necessary to do what the State of Israel had done, namely to pass retroactive legislation for the punishment of persons who committed crimes during the time of this war. The Court will find that these laws came from Austria, Bulgaria, Belgium, Canada, Czechoslovakia, Denmark, France, Greece, Hungary, Italy, Luxembourg, Holland, Norway, Poland, Rumania, Yugoslavia and Australia. The State of Israel belongs to that same category of nations which enacted these laws.

Judge Halevi: Mr. Attorney General, I would like to ask one question: Were these permanent laws or temporary laws for the duration of the war?

Attorney General: These are permanent laws enacted for the purpose of closing the breach which had been made by the Nazi regime.

Judge Halevi: I enquired because of the expression "Theater of Operations."

Attorney General: The Americans had their special approach to this question. There is no internal American legislation. The American legislation applied to a specific "Theater of Operations" but the laws which I quoted here and which I shall submit to you here and which you will be able to examine, Your Honour, are all permanent laws. For example I shall read one of them to you - the law of Denmark. The English translation is that of the United Nations War Crimes Commission:

"Danish provisions regarding punishment of war crimes. If a non-Danish subject, being in the service of Germany or serving under one of Germany's allies has infringed the rules or customs of International Law governing occupation and war and has performed in Denmark or to the detriment of Danish interests any deed punishable per se in Danish law, an action can be brought against such person in respect of the crime committed and a punishment imposed in a Danish Court in pursuance of this Act.

In addition to the instances cited in paragraph 1, persons having committed the following crimes shall be liable to prosecution under this act: war crimes, crimes against humanity, such as murder, maltreatment of civilians, prisoners or seamen, killing of hostages, looting of public or private property, requisitioning of money or other valuables, violation of the constitution, imposition of collective punishment, destruction by explosives or otherwise - all and so far as these actions were performed in violation of the rules of international law governing occupation and warfare. This act should further apply to deportation or other political racial or religious persecutions contrary to principles of Danish law..."

I should like to emphasize:
"...and further to all actions which although not specifically cited above, are covered by Article 6 in the Charter of the International Military Tribunal and the order issued by the Danish Ministry for Foreign Affairs Law General Number 7 dated 13 November 1945."
The Court will find that these or similar expressions, at shorter or greater length, are used in laws for the punishing of the Nazis and their collaborators.

Judge Raveh: In what year was this law promulgated?

Attorney General: In the year 1946.

Presiding Judge: Will you kindly submit this collection.

Attorney General: I am ready immediately to submit it together with the Australian law, of which I do not have a photostat, but it is to be found in the official Australian Compilation Acts of Parliament of the Commonwealth of Australia.

The Court will find that many countries set up special courts. Even those countries which are not in the habit of establishing extraordinary or special tribunals set up such tribunals in order to try Nazi offenders for their war-time crimes. We in our law of 1950 did not make any innovation except for the fact that in connection with crimes against humanity we singled out a special category for crimes against the Jewish people. Why did we do so? This matter will be clear to the Court when I quote the remarks of the Minister of Justice, Mr. Pinhas Rosen, at the time when he introduced his bill to the Knesset. I read from Knesset report Vol. 14:

Judge Halevi: Do the remarks of a Minister bind the Court?

Attorney General: They are not binding. But I want to show why the Parliament of the State of Israel singled out from amongst all the crimes against humanity, a crime against the Jewish people.

Judge Halevi: Is this not clear from the law itself?

Attorney General: This is clear from the tragic history of the Jewish people. Whereas a heavy disaster befell Australia, Canada and Hungary as a result of the War, it was, notwithstanding, not a Holocaust. Hitler's regime clashed with all these countries in the military arena, but it did not resolve to exterminate any one of them. And there was no need to enact a law for crimes against the Australian people; but a law had to be enacted for crimes against the Jewish people, because of what the Nazis did. We did not make any innovations here. This crime is entirely covered by crimes against humanity. And when the persecutions of the Jews and the dastardly atrocities committed by the Nazis on the Jewish people were recalled in the various trials in Nuremberg and in other countries, these crimes were punished on the ground that these were crimes against humanity. We also charged the Accused for the same acts, also according to the section dealing with crimes against humanity.

However, there was one people only, whom the evil regime had determined to wipe out utterly. That was the Jewish people. Consequently when the Parliament of the State of Israel decided to pass its own law for punishing Nazis, it singled out, if I may be allowed to say so, it was obliged to single out a special status for this aspect of the crime against humanity.

And this is what the Minister of Justice said - I quote from Knesset Reports Vol. IV page 1147-

"The law for the punishment of Nazis and their collaborators, like the law which is presently being considered by the Knesset, the law for the punishment and prevention of the crime of genocide, where the Knesset has commenced but not yet completed its special reading, has again raised before the Knesset the tragic chapter, the most tragic in the story of our people, the chapter of the campaign of extermination and destruction, in which six million members of our people were annihilated. There is no consolation in the enactment of such laws. The laws will not restore our dead to us. And to the extent that it is possible to be confronted we have to turn our attention to the task of creativity and construction and the ingathering of the exiles which are today being undertaken in our country.

"But by enacting these laws we are fulfilling a duty, an elementary and natural duty, for it would be impossible for a legislative body, speaking the language of the rule of law, to pass over these crimes in silence, the crimes of the Nazis which shocked the world with their cruelty and brought about a complete revolution in legal thinking.

"These acts, never before encountered, brought about innovations which have not even been heard of before in law. In the well-known Nuremberg Charter and the well- known Nuremberg trials new juridical principles were formulated. In the law which I am now proposing too, you will find innovations and departures from accepted concepts, that were accepted in the legal world even before the manifestation of Nazi crimes. These are the departures from principles which are generally taken as sacrosanct, from which criminal law could not have easily dissociated itself, had it not been for the Nazi crimes.

"And these are the departures from the accepted principles of the criminal law: Firstly, the law's purpose is to inflict punishment for acts, which in part had not yet been described as offences at the time they were committed. Secondly, in terms of the proposed law offenders will be brought to trial for crimes which they committed beyond the borders of the State. Generally speaking there is, in this too, a noteworthy departure from the usual. Thirdly, the law is retroactive, and as is known it is generally forbidden for criminal laws to be retroactive.

"The proposed law is distinguished from the law for the prevention and punishment of the crime of genocide, which, as I have said, is still under consideration by the Knesset. That law applies to the future. It has been introduced in order to prevent a recurrence of acts that were performed in the past, a recurrence of crimes similar to those which were perpetrated by the Nazis. On the other hand, the law which is now being proposed applies to the past, to a certain period in history, which began with the rise to power of Hitler and ended with his destruction.

"It seems to me that we have done well to distinguish between these two laws. The proposed law refers to the past. We shall not forget - nor shall we forgive!

"There is, herein, some drawing up of accounts with the past. Therefore the law does away with the principle of prescription regarding the most serious crimes, those which have been included in this law as war crimes, crimes against humanity and concerning the slaughter of oppressed people for the sole reason that they were being oppressed. To these grave crimes the principle of prescription will not apply.

"The proposed law is an expression of the revolution that has taken place in the political position of the Jewish people. While other nations enacted laws soon after the end of the War, and a few of them actually before the end of the War, in regard to the punishment of the Nazis and their collaborators, the Jewish people whose account with the Nazis was the longest and the bitterest was deprived, until the establishment of the State of Israel, of the political authority to put the Nazi criminals and the collaborators on trial. And it lacked the political authority to demand the extradition of these criminals for the purpose of judging them in its own country, as is proposed in this law. It is in this sense that the change will now occur."

Presiding Judge: Which volume of the Knesset Reports?

Attorney General: Volume IV page 1147.

Under this law various people were tried in the State of Israel before Adolf Eichmann, from 1950 until this day, and quite substantial sentences were imposed not only on these Nazis but also on collaborators of the Nazis, and even on Jews who implemented their orders and who to the extent that they could not provide a defence for themselves as persecuted persons and to the extent that this wicked regime blunted their moral sense, were found guilty and punished under this law.

Presiding Judge: Why are you referring now to Israeli judicial decisions?

Attorney General: Because it defines how the Court views the law, and that is important. I quote from Criminal Appeal 119/51, Pal versus the Attorney General, Piskei Din, Vol. 6, on page 498. On page 502, paragraph 4, the following remarks were made by the President, Justice Olshan:

"If we compare Sections 1 and 2, it will be clear to us that all the offences specified in Section 2 are also included, in actual fact, in Section 1, and in that part of it which deals with crimes against the Jewish people or crimes against humanity, except that here they are included in a general framework, such as murder, extermination, enslavement, starvation, expulsion and any other inhuman act. The difference is only this, that in the first Section the crimes are directed against a group (civilian populations) and in Section 2 they are directed against the individual. According to Section 1, too, a person can be found guilty of a crime he committed in fact against specific persons, if the act against these persons was perpetrated as a result of intent to cause harm to a group, and the act committed by the criminal against these persons was a kind of 'part performance' of his evil intent in regard to the group as a whole, whether this group is the Jewish people or any other civilian population. (It should be pointed out that the term 'civilian population' is a broad term, including also a part of the civilian population belonging to a national, religious, racial or political group)."
Israel is a party to the Convention dealing with the Prevention and Punishment of the Crime of Genocide; incidentally, to our great regret, it is one of the few signatories to the Convention that have fulfilled their obligation to adopt the wording of the Convention into the language of the local law, and it has enacted an internal Israel law regarding the crime and prevention of genocide.{Laws of the State of Israel, vol. 4, 5710 - 1949/50, p. 101} This is to be found in Volume 1 of Rashumot No. 5, on page 66:
"Recognizing that at all periods of history Genocide has inflicted great losses on humanity; and

Being convinced that in order to liberate mankind from this odious scourge, international cooperation is required." United Nations Treaty Series, vol. 78, p. 277}

The parties to the Convention confirm that genocide, whether in times of peace or war, is a crime under international law, and the parties to the Convention undertake to prevent it and to punish it. "

Naturally we cannot charge Eichmann in terms of the law that we enacted by virtue of this Convention, because that law, as was already explained in the remarks of the Minister of Justice in the Knesset, applied only to the future.

Presiding Judge: What is the year of our law?

Attorney General: The year 5710-1950.

I proceed now to the analysis of the problem of how public international law was absorbed into the Israeli domestic law. The law of the State of Israel follows the Law of Nations, in that local statute law must be interpreted according to the principles of public international law. This has been laid down in a series of judgments. In High Court 279/51, Piskei Din 6, Vol. 2, 945, on page 966, paragraph (b) the Court said:

"It is a well-known rule that local statute law, is to be interpreted according to the rules of public international law, unless its contents require a different interpretation."
In Civil Case (Jerusalem) 208/52, District Court Judgment 8, page 455, it is stated on page 458:
"The principles of international law, accepted in all civilized countries, are valid in the State of Israel, if not by virtue of international law itself, then at any rate as part of the English common law which is valid in Israel, in the absence of provisions to the contrary, by virtue of Article 46 of the Order-in- Council, and Section 11 of the Administration and Law Ordinance, 5708-1948."
Presiding Judge: Whose judgment is this?

Attorney General: Justice Witkon in the case of Shebabo versus the Belgian Consulate.

When the problem of the State of Israel's jurisdiction arose in connection with the ships flying its flag on the high seas, the Deputy President of the Supreme Court found a number of sources for the application of international law to Israel. The judgment was Stampfer versus the Attorney General, Criminal Appeal 174/54 Piskei Din 10, page 5. On page 14 opposite the letter a it is stated:

"The said principle, in my opinion, has become part of the law of this country in three ways: Firstly, by means of Article 46 of the Order-in Council 1922; secondly, by virtue of Section 1 of the Admiralty Offences (Colonial) Act of 1849, which became incorporated in the laws of Palestine by virtue of Article 35 of the Order-in-Council 1922; and thirdly by virtue of the sovereignty of the State of Israel."

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