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Last-Modified: 1999/05/27

To sum up, the contention of the Accused against the
jurisdiction of the Court by reason of his abduction from
Argentina is in essence nothing but a plea for immunity by a
fugitive offender on the strength of the refuge given him by
a sovereign state.  That contention does not avail the
Accused for two reasons: (a) According to the established
rule of law, there is no immunity for a fugitive offender
save in the one and only case where he has been extradited
by the country of asylum to the country applying for
extradition by reason of a specific offence, which is not
the offence for which he is being tried.  The Accused was
not surrendered to Israel by Argentina, and the State of
Israel is not bound by any agreement with Argentina to try
the Accused for any other specific offence, or not to try
him for the offences tried in this case.  (b) The rights of
asylum and immunity belong to the country of asylum and not
to the offender, and the Accused cannot compel a foreign
sovereign country to give him protection against its will.
The Accused was a wanted war criminal when he escaped to
Argentina by concealing his true identity.  It was only
after he was captured and brought to Israel that his
identity has been revealed, and after negotiations between
the two governments, the Government of Argentina waived its
demand for his return and declared that it viewed the
incident as settled.  The Government of Argentina thereby
refused definitively to give the Accused any sort of
protection.  The Accused has been brought to trial before a
court of a state which accuses him of grave offences against
its laws.  The Accused has no immunity against this trial
and must stand his trial in accordance with the indictment.

For all the above-mentioned reasons we have dismissed the
second contention of Counsel and his application to hear
witnesses on this point.

53. At the conclusion of his summing up, learned Counsel
added another plea connected with the whole range of legal
issues dealt with above, namely the plea of prescription
under Argentine law.  The Attorney General had already
mentioned (Session 4, Vol. I, p. 49) that a competent
Argentinian court had decided on 18 July 1960 to dismiss the
application for the extradition of one Jan Durcansky, who
was wanted by Czechoslovakia as a war criminal, on the
ground that the period for prescription under Argentine law
- fifteen years from the time of the commission of the crime
- had elapsed.  Counsel pleaded in his summing up (Session
114, Vol. IV, pp. 43-44) that with respect to the crimes
attributed to the Accused, the period of prescription of
fifteen years had elapsed on "5 May 1960, shortly before his
capture," and that therefore it would be just "to place the
Accused in the same position as though he had been duly and
properly extradited," after the period of prescription, by
Argentina to Israel, to quash the case and set him free in
accordance with the Argentine law of prescription.

This surprising contention is thoroughly untenable, and the
short reply to it is that, even had the Accused been
extradited by Argentina to Israel, pursuant to the
hypothetical premise of Counsel, the Argentine law of
prescription would not avail him in Israel.  That law could
have been of help to him only in Argentina itself to the end
of preventing (assuming the Durcansky precedent to be
applicable to this case) his extradition to Israel or to any
other country.  But once his extradition was completed, no
country (neither Israel nor any other country) would have
heeded the law of prescription of a foreign country and
given the Accused immunity - and this is in effect what he
is asking for - because a foreign country had surrendered
him contrary to its laws.  See Criminal Appeal 2/41 (Abou
Durrah v. A.G.) above.

The Extradition Law 5714-1954 contains many provisions,
including those in section 8(2), on the subject of
prescription "according to the laws of the applying country;
but there is only one section which lays down exclusively
the law on "how to deal with a person extradited to Israel,"
namely section 24, which establishes the "speciality"
principle (see supra).  To put it in another way: Apart from
the speciality principle which gives the person extradited
immunity against his being charged with another  offence
which he committed prior to extradition, the extradited
person has no privilege when standing his trial for an
offence against the laws of the land.  This legal position
is established in most countries (see section 19 of the
English Extradition Act of 1870, and para. 23 of the Harvard
Research on Extradition, referred to above).

The basic reasons for this state of the law are elucidated
in the explanatory observations of Sir Francis Piggott, in
Extradition (1910), p. 170 et seq (which observations may
shed further light on statements made in preceding sections
of this judgment), as follows:

     "The point which has been so much insisted on in the
     preliminary discussions, that the Act, except in s. 19,
     does not deal with the surrender of fugitives to
     England by foreign countries, must now be considered...
     The constitutional principle, cardinal to the subject,
     is that legislation is only necessary in connexion with
     treaties when the law of the land would be interfered
     with in carrying out the treaty obligations.  With the
     fact that the King has entered into an arrangement with
     a foreign Sovereign that he will surrender fugitives
     from English justice the law has no concern; for the
     moment such a person comes within the area of English
     jurisdiction, he may be arrested as a person accused or
     convicted of a crime against the law of this country.
     If legislation is necessary in the foreign country,
     that is no concern of ours.   Supposing however a
     limitation on the powers of prosecution to be imported
     into the treaty, then legislation at once becomes
     necessary, for here there is an interference with the
     law.  Such a limitation is introduced by the reciprocal
     arrangement that fugitives when surrendered shall only
     be tried for the offence in respect of which they were
     surrendered.  This is insisted on in s. 3(2), in the
     case of surrenders by this country; it is obvious that
     the same condition will be insisted on by the foreign
     country; therefore provision is made in s. 19 of the
     Act approving of its being fulfilled... That is the
     only condition imposed on the foreign country, it is
     the only condition imposed on us by the foreign
     country, which in any way interferes with the law.  The
     restriction in s. 3(1) with regard to political
     offences is a check on the surrender of fugitives, not
     a restriction on trial after they are surrendered."
Section 3(1) of the English Extradition Act, which forbids
extradition of a fugitive offender where the extradition
offence is of a political character, is parallel to Section
2(2) of the Israel Extradition Law, and what has been
explained by the learned author on this subject also applies
to the question of prescription under Section 8(2): All
these conditions and limitations in the Extradition Law are,
as it were, "one way" arrangements, namely they operate only
in the country to which application is made, and do not
avail the Accused upon his having been extradited to the
country making the application which tries him for offences
against its laws.

See also R. v. Corrigan (1931) 1 K.B. 527; 22 Cr.A.R.106,
where the Court of Criminal Appeals stresses that section 19
of the English Extradition Act creates a statutory departure
from the Court's usual jurisdiction, so that an accused who
has not proved beyond doubt that he was indeed extradited to
England in accordance with the Extradition Treaty in force
with France, could not rely on this exception.  It is there
stated on p. 533:

     "It must always be borne in mind that the burden of
     proving such facts as will establish his contention in
     law rests upon the accused, who was before the Central
     Criminal lawful custody upon the lawful
     committal of a metropolitan magistrate... The burden
     was upon him to show beyond reasonable doubt that such
     facts existed as would render his trial by the law of
     England illegal and improper."

Therefore, any plea which assumed that the trial of a
fugitive offender or a foreign offender, whether he arrived
in the country of his own free will, or was extradited to
that country, or was forcibly carried to it, is based on any
discretion - is mistaken.   The duty of the court to try any
accused brought before it for offences against the laws of
the land is based on the rule of law, so that if an accused
cannot show that the special circumstances upon which he
bases himself give him lawful immunity, the court must try
him in accordance with the indictment.

The crimes attributed to the Accused in this case are
offences against the  Nazis and Nazi Collaborators
(Punishment) Law which provides in Section 12 (a) that "the
established laws of prescription" (with respect to ordinary
offences) "shall not apply to offences under this law."
Because of the extreme gravity of the crime against the
Jewish People, the crime against humanity and war crime, the
Israeli legislator has provided that such crimes shall never
prescribe, while the crime of membership in a hostile
organization shall be prescribed on the lapse of twenty

The Argentinian sovereign legislator is at liberty to
determine periods of prescription as he sees fit, but the
jurisdiction of the Israeli court derives from a violation
of Israeli law by the Accused, and the view of the
Argentinian legislator on the gravity of the crimes in
question and the period of their prescription is not
relevant to this case.  The fact that he resided for a
number of years in any country of asylum (and the length of
his residence in that country makes no difference with
respect to the application of the Argentinian law of
prescription) cannot shorten the lawful period of
prescription, or else it would have been sufficient for a
fugitive offender to set foot on the soil of a country that
has a brief period of prescription, to enjoy the benefit of
that prescription all over the world, including the country
or countries the laws of which he violated by his crimes.

For all these reasons the plea of prescription, insofar as
it is based on Argentine law, has to be dismissed.
54. The bulk of the evidence brought before this Court can
be divided into five categories:

     (a) The testimony of witnesses for the Prosecution and
     the testimony of the Accused given in the usual way in
     (b) Affidavits on oath and without oath, and records of
     evidence given in previous trials by persons who are no
     longer alive, including war criminals who were
     punished, and also from living persons.  We admitted
     this evidence by virtue of the special authority vested
     in this Court by sec. 15 of the Nazi and Nazi
     Collaborators (Punishment) Law, 5710-1950, and in every
     such instance we gave our reasons for the admission of
     the evidence, as required by this section.  Obviously,
     the weight which is to be given to evidence admitted in
     this way still remains a matter for careful
     consideration by the Court, depending upon the person
     who gave the evidence or the affidavit, whether he was
     a partner to the crime, the special interest he could
     have had in diverting blame from himself to the
     Accused, the lack of opportunity for cross-examination
     by the Accused, etc.
     (c) Evidence taken from witnesses abroad, by courts in
     Germany, Austria and Italy, in accordance with requests
     for taking evidence on commission addressed to them by
     this Court.  Amongst these were witnesses whose
     previous affidavits or records of evidence were
     submitted to us by the Prosecution, and these were
     regarded as witnesses for the Prosecution whose cross-
     examination by Counsel for the Defence was made
     possible in this way.  Other witnesses were
     interrogated abroad at the request of the Defence
     without the previous submission by the Prosecution of
     any affidavit or evidence given by such a witness.  All
     these witnesses were interrogated by courts of law
     according to detailed questionnaires which had been
     first approved by this Court, and all of them (except
     the witnesses Hoettl, Novak and Slawik, whose testimony
     was taken in Austria) in the presence of
     representatives of both parties, with the addition of
     questions which arose from the replies to the questions
     in the questionnaire.  These were witnesses who could
     not come here to give evidence, because they were in
     detention abroad or did not wish to come, some of them
     after the Attorney General had announced that he
     intended to put them on trial for crimes against the
     Jewish People, and others also without any such
     announcement having been made in regard to them.
     Obviously, for the elucidation of the truth, it would
     have been preferable had all the witnesses, those for
     the Prosecution and those for the Defence, given their
     evidence before us here, but since there was no
     practical possibility of taking this course, it seems
     to us that the procedure we followed was quite
     efficient.  Indeed, some of these testimonies throw
     additional light on the questions in dispute, if one
     uses them with the requisite caution - and this we
     intend to do.  It is unnecessary to add that if we
     place reliance on statements made by these witnesses,
     some of whom were convicted for war crimes and some of
     whom are suspected of crimes, this does not mean that
     the stamp of veracity is put on their evidence as a
     (d) The fourth set of evidence is represented by
     hundreds of documents which were submitted to us and
     from which the Accused's activities during the period
     of the Third Reich appear in their true light through
     letters, memoranda, and official minutes recorded at
     the time of action or close to it.  Although the files
     of the Accused's Section are missing, because those
     were burned by the Accused and his colleagues at the
     end of the World War together with the rest of the
     files of the Gestapo Headquarters in Berlin (T/37, p.
     307), nevertheless, the remnants of the files of other
     offices also constitute important proof.  These
     documents were submitted with a statement of their
     sources, and in most cases their authenticity is not in
     dispute.  In those instances in which the Defence
     denied the authenticity of some of these documents, we
     shall decide the matter in its proper place as we
     (e) Finally, we have before us in evidence the detailed
     Statement made by the Accused to Superintendent Less of
     the Israeli police, which extends to over 3,500 printed
     columns (exhibit T/37), and in addition various notes
     which he wrote while in detention in Israel before his
     trial.  There is no doubt that the Statement was given
     by the Accused of his own free will, and the same
     applies to the written notes.  Nor does the Accused
     deny this, but in regard to a number of passages in the
     Statement which might incriminate him, he argued that
     he had made a mistake at the time in saying what he had
     said, and that only later on, after studying all the
     documents, had he realized his error.  Insofar as this
     argument requires a decision on our part, it will be
     dealt with at the appropriate time.

The Prosecution sought to bring in evidence also a reprint
which contained, according to their argument, a statement
made by the Accused in 1957 to a Dutch journalist by the
name of Sassen.  We rejected this request by a majority in a
reasoned decision (Decision No. 79, Vol. III, p. 1353).  At
a later stage, during the Accused's evidence in Court, the
Attorney General elicited from him that he had in fact made,
at the time, some of the statements recorded in the Sassen
document, and these therefore became part of his evidence
before us, to the extent that he admitted to them, either
fully or with reservations.

55. The persecution of the Jews by Hitler's Germany
developed in three principal stages.  The first stage was
from the rise of Hitler to power in 1933 until the outbreak
of the World War in 1939; the second stage from 1939 to
mid_1941, and the third and final stage from mid-1941 to the
collapse of the Third Reich in May 1945.  We shall now
describe each of these three stages in general outline,
according to the evidence brought before us.  As stated
above, it is neither our intention nor within our power to
aim at throwing full light upon all the iniquities of the
Hitler regime against the Jewish People.  The purpose of the
survey is solely to establish the place of the Accused and
the degree of his personal responsibility within the regime
of persecutions, because these cannot be understood except
against the background of these events.  The method we have
chosen to recount the facts is generally chronological, and
in each of the above-mentioned stages we shall speak first
of the general background of the events and afterwards of
the Accused's activity during that stage.  In the last
stage, that of the physical extermination, the story widens
out in many directions.  After completing the factual
description, we shall analyse the legal significance of the
facts we have established.  Later, we shall deal with the
counts in the indictment which refer to the Accused's
activities against persons of other nations and his
membership in hostile organizations.  In the final part of
the judgment we shall deal with the arguments put forward by
the Defence by which the Accused sought to justify his

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