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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