The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of Adolf Eichmann
Session 4
(Part 2 of 3)

Holocaust, Adolf Eichmann, Eichmann trial, holocaust, Jewish holocaust
Presiding Judge: When you spoke earlier about older sources of international law, you mentioned in this connection pirates, slave traders and white-slave traffickers. Is there any specific reference to this in the sources?

Attorney General: Not specifically. I shall come to this presently. There are definitions of hostis humani generis. There are definitions of people of whom, in biblical language, it might have been said that they bore the mark of Cain on their foreheads. But whereas in matters such as of trafficking in women, narcotic drugs and so on there are, generally speaking, international treaties which today define the right of jurisdiction, in the case of pirates the original principle of old times remains unchanged to this very day; and it seems that even in the twentieth century pirates still exist. For example in the judgment of the House of Lords in re Piracy Jure Gentium (1934)4C, 586, it is said on page 589:

"With regard to crimes as defined by international law, that law has no means of trying or punishing them. The recognition of them as constituting crimes, and the trial and punishment of the criminals are left to the municipal law of each country."
The author of the article "The municipal and international law basis of jurisdiction over war crimes" - (I say "the author" of the article, since it is signed only with initials - I can guess who he is, but as only the initials appear, I do not want to rely on the author's name - they are R. R. B.) - which appears in the British Yearbook of International Law 1951, states on page 392:
"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."
The State of Israel, Your Honours, considering the Holocaust of the Jewish people, the availability of witnesses, brands snatched from the fire, its institutes of research, source material, the availability of a State Institution such as Yad Vashem, which has a collection of historical material, the existence of other research institutes for studying the Holocaust - is a suitable place, also in accordance with this principle, for trying a man accused of a crime such as this.

In a book published by the University of California by Maurice Greenspan The Modern Law of Land Warfare, the following appears on page 503:

"Since each sovereign power stands in the position of 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. It will be remembered, for example, that each of the four Geneva Conventions of 1949 provides that each party is under the obligation 'to search for persons alleged to have committed, or to have ordered to be committed' grave breaches of the conventions, 'and shall bring such persons regardless of their nationality, before its own courts. It may also, if it prefers and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.' This obligation applies not only to parties to a conflict, but also to neutrals. However, the state which has suffered the war crimes, or against whose nationals the crimes have been directed, usually undertakes the trial of the offenders, either alone or in association with allied states."
At the Assembly of the United Nations there is the Third Committee which deals with Human Rights. In November 1960, the Third Committee adopted a resolution in regard to Article 15 of the Draft Convenant on Civil and Political Rights and the supplement thereto. I shall submit to the Court all the records of what jurists representing the various countries had to say on that subject, and in the end the resolution which was adopted confirmed Article 15 in the following wording:
"1. No one shall be guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law, at the time when it was committed... "2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations."
Judge Halevi: This belongs more to the previous part of your argument.

Attorney General: To some extent it belongs to the previous part of my argument, but seeing that the subject here is punishment in general and general principles, I deemed it proper to submit it here, and the Court will find very interesting material in the legal debate reported on ex post facto, on the extraterritorial principle and on other problems which arose before the Committee completed its discussion and finalized this text.

We are told: Bring Adolf Eichmann before an international court. What international Court? The International Court at the Hague deals with disputes between state and state; it has no criminal jurisdiction over individuals. The International Military Tribunal which sat at Nuremberg finished its work and no longer exists.

Presiding Judge: I did not understand the argument to be that there was such an international court which could deal with the matter.

Attorney General: I shall also come to this point. The Court which sat in Tokyo and sentenced war criminals is also no longer in existence. Hence what is the State of Israel supposed to do? To request the United Nations Organization to set up a Court? Already at Tokyo, at the time when there were still the last remnants of a honeymoon between the Great Powers, not inconsiderable difficulties were encountered when the Court sat to try war crimes. Does anyone suggest that this is a practical solution, that it is possible today, regardless of the complications of the cold war and all the international difficulties, to establish an International Court? To whom shall we hand over Adolf Eichmann? To the Poles? To the Hungarians? To the Czechs?

True, he transgressed against them all; but his first and particular crime, the most heinous and obvious of them all, was that against the Jewish people. The State of Israel wanted the establishment of an international criminal court. We made many attempts in our addresses before the United Nations in the years 1951-1953 to have such a court established. As a small country we have an interest in the setting-up of a supreme criminal tribunal which can protect the weak. I shall submit to the court the reports of the Committee on International Criminal Jurisdiction 1951 and 1953 and the proposals of the Government of Israel on this subject.

Presiding Judge: Whose committee was this?

Attorney General: A Committee of the United Nations.

Presiding Judge: Attached to which body?

Attorney General: To the General Assembly. And perhaps here I may mention that my colleague for the Prosecution, Dr. Robinson, was one of the most active members of that committee for the establishment of an international criminal Court. But it did not come into existence because the Great Powers did not want it, and hence today there is no international criminal tribunal. Accordingly, only one country can try Adolf Eichmann, and that according to its own domestic law.

Presiding Judge: Concerning the matter which you have just now mentioned, how did the discussion end? Did they come to any conclusion at all?

Attorney General: There is a report and there are recommendations, and the matter has not yet been finalized to this day.

Presiding Judge: Is it still on the agenda at this time?

Attorney General: It remains on the current agenda of the United Nations General Assembly.

Dr. Servatius: May I request copies of these two reports on Human Rights and Criminal Jurisdiction?

Attorney General: I hope it will be possible to obtain additional copies from the Ministry for Foreign Affairs and to pass them on to Dr. Servatius.

As the Court will be able to gather from a perusal of the indictment, Adolf Eichmann is accused, first and foremost of crimes against the Jewish people. The Jewish people does not dwell in Israel alone; there are Jewish communities outside the State, both large and small, protected by the laws of other countries. But the only country in the world which is a Jewish State, as it declared itself in its Declaration of Independence, and as it was recognized by a resolution of the United Nations, which has sovereign Jewish institutions - is the State of Israel. The right of the Jewish people to a national renaissance in its own country was proclaimed, already, at the first Zionist Congress in 1897. In 1917 the Balfour Declaration was issued favouring the establishment of a Jewish National Home, and the Mandate over the country which was given to Great Britain included that Declaration.

The historical connection between the Jewish people and the Land of Israel is recognized according to the law of nations. The National Home established here during the period of British rule - was established for the sake of all Jews, also for the sake of the millions who are no longer living. And if there is any country which feels the consequences of these crimes on its body and soul - it is the State of Israel first and foremost. In it there was the manpower, the faith and the inspiration for the Jewish State. It existed as a State-on-the-way not only here; it also existed in all those countries which were overtaken by the Holocaust. And the Jews there waited for their State.

In the year 1936 a Royal Commission was established, known as the "Peel Commission," which was required to recommend to the Mandatory Power how to continue the British Mandate. Before the Commission appeared the man who was then the President of the World Zionist Organization and subsequently the first President of the State of Israel - Dr. Chaim Weizmann. I read from the Commission's Report, Palestine Royal Commission: Minutes of Evidence heard at Public Sessions, on page 32:

Presiding Judge: That is not the report - only the minutes.

Attorney General: I shall submit the report later. We are discussing the Jewish problem...

Presiding Judge: On what page are you reading?

Attorney General: On page 32. Dr Weizmann was able to see this as a national and economic problem. He spoke as if endowed with a prophetic spirit, of six million souls who were bound to go to their own country:

"It is, if I may say so, a world problem of considerable importance. Naturally it is one which primarily affects the Jewish community and secondly affects the state of affairs in this particular part of the world which, since the war, has moved towards new forms of political and social life; at present not too strong - not too ripe, politically and not too strong economically. These six million people to whom I have referred are condemned to live from hand to mouth, they do not know today what is going to happen tomorrow - I am not speaking now of organized anti-Semitism, but assuming the host nations were quite friendly - but there are objective reasons, purely objective reasons, existing in those parts of the world which tend to grind down the Jewish community and make it into flotsam and jetsam of the world - grind it into atomic dust, so to speak. Though it is generally known that the position of the Jewish people is not very happy, I think it is too little appreciated what its misery is and that is why I have permitted myself to dwell on it at some length. After all, it affects the fate of six million people."
These are six million who were alive when Dr. Weizmann spoke and on whose behalf he demanded a Jewish State. They are no longer alive. Who else is there like us, who from the point of view of experiencing the consequences of the Holocaust can fill this awful void which has been left in the life of the Jewish people; who else more than we ourselves, has the right to sit in judgment in view of those consequences?

The Jewish community in Palestine, even in the pre-State era, was the only one which, owing to its national development, could establish a Jewish fighting unit in the Second World War. This unit fought shoulder to shoulder with hundreds of thousands of Jews in the other Allied armies. But it was the only one that was able to fight under the blue and white flag.

The establishment of a Jewish State in Palestine occupied the thoughts of the world's statesmen already at the end of the First World War. This is faithfully reflected in the Peel Report. The Court will notice the evidence of Lloyd George, who was Prime Minister at the time of the granting of the Balfour Declaration. On page 24 of the Report, he states:

"The idea was, and this was the interpretation put upon it at the time, that a Jewish State was not to be set up immediately by the Peace Treaty without reference to the wishes of the majority of the inhabitants. On the other hand, it was contemplated that when the time arrived for according representative institutions to Palestine, if the Jews had meanwhile responded to the opportunity afforded them by the idea of a national home and had become a definite majority of the inhabitants, then Palestine would thus become a Jewish Commonwealth."
Ultimately, the supreme international body - the United Nations General Assembly - also recognized the special character of the Jewish community in Palestine and the right of the Jewish people to its own State. And on 29 November 1947, the resolution was adopted calling for the establishment of a Jewish State in part of Mandatory Palestine. This resolution constituted an ex post facto recognition of a fact which had previously been in existence - the renewed territorial crystallization of the Jewish people in the Land of Israel; a process which had begun many years previously, which began with the return to Zion; and in the Declaration of Independence the aspirations of generations were realized.

It will cause no surprise that in the Luxembourg Agreement, that Agreement of which Counsel for the Defence reminded us yesterday, the Reparations Agreement - which appears in Rashumot (Conventions and Agreements)*{3*United Nations Treaty Series, vol. 162, p. 205} Vol. 37, the following statement appears at the outset:

"Whereas unspeakable criminal acts were perpetrated against the Jewish people during the National-Socialist regime of terror...Now therefore [the States] have agreed..."

It was the State of Israel that somehow one had to try to compensate for the indescribable criminal acts, or as it is said in English, the "unspeakable criminal acts perpetrated against the Jewish people."

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