Archive/File: people/e/eichmann.adolf/transcripts/Appeal/Appeal-Session-07-01 Last-Modified: 1999/06/15 JUDGMENT 1. The Appellant, Adolf Eichmann, was found guilty by the District Court of Jerusalem of offences of the most extreme gravity against the Nazis and Nazi Collaborators (Punishment) Law 5710-1950 (hereinafter - "the Law") and was sentenced to death. These offences may be divided into four groups: Group One: Crimes against the Jewish People, contrary to Section I(a) (1) of the Law;Group Two: Crimes against Humanity, contrary to Section 1(a) (2);Group Three: War Crimes, contrary to Section 1(a) (3); Group Four: Membership of Hostile Organizations, contrary to Section 3. 2. The acts constituting these offences, which the Court attributed to the Appellant, have been specified in paragraph 244 of the Judgment. The acts belonging to Group One are: (1) That during the period from August 1941 to May 1945, in Germany, in the territories of the Axis States, and in the areas which were subject to the authority of Germany and the Axis States, he, together with others, caused the deaths of millions of Jews, with the purpose of implementing the plan which was known as `the Final Solution of the Jewish Question,' with intent to exterminate the Jewish People; (2) that during that period and in the same places he, together with others, subjected millions of Jews to living conditions which were likely to bring about their physical destruction, in order to implement the said plan, with intent to exterminate the Jewish People; (3) that during that period and in the same places he, together with others, caused grave bodily and mental harm to millions of Jews, with intent to exterminate the Jewish People; (4) that during the years 1943 and 1944 he, together with others, "took measures to prevent births among Jews, by directing that births be banned and pregnancies terminated among Jewish women in the Therezin Ghetto, with intent to exterminate the Jewish People." The acts constituting the crimes in Group Two are as follows: (5) that during the period from August 1941 to May 1945 "he, together with others, caused in the places mentioned in Clause (1), the murder, extermination, enslavement, starvation and deportation of the Jewish civilian population;" (6) that during the period from December 1939 to March 1941 "he, together with others, caused the deportation of Jews to Nisko, and the deportation of Jews from the areas in the East annexed to the Reich, and from the Reich area proper, into the German-occupied area in the East, and to France;" (7) that in carrying out the above-mentioned activities he persecuted Jews on national, racial, religious and political grounds;" (8) that during the period from March 1938 to May 1945 in the places mentioned above "he, together with others, caused the plunder of the property of millions of Jews through mass terror, linked with the murder, destruction, starvation and deportation of those Jews;" (9) that "during the years 1940-1942 he, together with others, caused the expulsion of hundreds of thousands of Poles from their homes;" (10) that in 1941, he, together with others, caused "the expulsion of more than fourteen thousand Slovenes from their homes; (11) that during World War II he, together with others, caused the expulsion of "tens of thousands of Gypsies from Germany and German-occupied areas and their transportation to the German-occupied areas in the East;" (12) that in 1942 "he, together with others, caused the expulsion of 93 children of the Czech village Lidice." The acts comprised in Group Three of the crimes are: That "he committed the acts of persecution, expulsion and murder mentioned in Counts 1-7, so far as these were done during World War II, against Jews from among the populations of the countries occupied by the Germans and by the other Axis States." The acts comprised in Group Four are: That as from May 1940 he was "a member of three Nazi police organizations which were declared criminal organizations by the International Military Tribunal which tried the major war criminals, and as a member of such organizations he took part in acts declared criminal in Article 6 of the London Charter of 8 August 1945." 3. The Appellant has appealed to this Court against both the conviction and the sentence. 4. The oral and written contentions of learned Counsel who supported the appeal, Dr. Servatius, may, insofar as they are directed against the conviction, be divided under two categories: (1) Purely legal contentions, the principal object of which is to undermine the basis of the jurisdiction of a court in Israel to try the Appellant for the crimes in question. (2) Factual contentions of which the object is, in essence, to invalidate the finding of the District Court that there was no foundation for the defence of the Appellant that he played the part of a `small cog' in the machine of Nazi destruction, that in all the above-mentioned activities he functioned as a junior official, and one without any initiative of his own, and that nothing but the compulsion of an order and blind obedience to a command from above guided him in the performance of his task through all its stages. With reference to these contentions, Counsel for the Appellant has asked this Court for leave to produce new evidence at the stage of the appeal. At the conclusion of his argument we decided to refuse this application, and the reasons for our decision will be set out below. 5. The District Court has, in its Judgment, dealt with both categories of contentions in an exhaustive, profound and most convincing manner. We should say at once that we fully concur, without hesitation or reserve, in all its conclusions and reasons, because they are fully supported by copious judicial precedents that were cited in the Judgment and by the substantial proof culled and abstracted out of the monumental mass of evidence produced to the Court. Moreover, we are in duty bound to state that, were it not for the grave outcome of the decision of the Court constituting the subject of the Appeal, we would have seen no need whatever to formulate our opinion separately and in our own language - as we contemplate doing - for the conclusions of the District Court rest on solid foundations. Nor is it superfluous for us to take this opportunity and to express our appreciation of the immense effort expended by the learned Judges, who tried the case in the lower Court, in the actual conduct of the arduous and wearying proceedings before them. As to the contribution made to this responsible task by the Attorney General and his assistants on the one hand, and Counsel for the Defence on the other, appropriate and significant observations have already been embodied in the Judgment of the District Court, and we can do no more than associate ourselves with them. 6. Most of the legal contentions of Counsel for the Appellant concentrate on the argument that the District Court, in assuming jurisdiction to try the Appellant, acted contrary to the principles of international law. These contentions are as follows: (1) The Law of 1950, which is the only source of the jurisdiction of the Court in this case, constitutes ex post facto penal legislation, which established as offences acts that were committed before the State of Israel came into existence; therefore, the validity of this Law is limited to citizens of Israel alone. (2) The offences for which the Appellant was tried are in the nature of `extra-territorial offences,' that is to say, offences that were committed outside the territory of Israel by a citizen of a foreign state; and even though the above- mentioned Law confers jurisdiction in respect of such offences, it conflicts, in so doing, with the principle of territorial sovereignty, which postulates that only the country within whose territory the offence was committed, or to which the offender belongs - in this case, Germany - has jurisdiction to punish therefor. (3) The acts constituting the offence of which the Appellant was convicted were, at the time of their commission, acts of state. (4) The Appellant was brought to Israeli territory, to be tried for the offences in question, unwillingly and without the consent of the country in which he resided, through agents of the State of Israel who acted on the orders of their government. (5) The Judges of the District Court, being Jews and feeling a sense of affinity with the victims of the plan of extermination and Nazi persecution, were psychologically incapable of giving the Appellant an objective trial. 7. We reject all these contentions. A brief reply to the first two of these - and we shall deal with each separately - will be found in paragraph 10 of the Judgment: "The Court has to give effect to a law of the Knesset, and we cannot entertain the contention that such a law conflicts with the principles of international law." In the submission of Counsel for the Appellant this reply is mistaken, for - he argues - where there is such a conflict it is imperative to give preference to the principles of international law. We do not agree with this view. According to the law of Israel, which is identical on this point with English law, the relationship between municipal law and international law is governed by the following rules: (1) The principle in question becomes incorporated into the municipal law and a part of that law only after it has achieved general international recognition. "The municipal courts of a particular state" said Mr. Justice Dunkelblum in Motion 41/49 (Shimshon Ltd. v. Attorney General, 4 Pesakim, vol. 4, p. 143, pp. 145, 146) "will recognize the principles of international law and will decide in accordance with those principles only if they have been agreed to by all other civilized peoples, so that it is a necessary assumption that such principles have also been accepted by that state. A principle of international law must therefore be established by sufficient proof to justify the conclusion...that it is recognized and well known by the majority of states." (See also judgment of Lord Alverstone in West Rand Gold Mining Co. v. Rex (1905) 2 K.B. 391, 406-7; and that of Lord Macmillan in The Cristina (1938) 1 All E.R. 719, 725). (2) This, however, only applies where there is no conflict between the provisions of municipal law and a rule of international law. But where such a conflict does exist, it is the duty of the court to give preference to and apply the laws of the local legislature (see Israeli and English precedents mentioned in paragraph 10 of the Judgment). True, the presumption must be that the legislature strives to adjust its laws to the principles of international law which have received general recognition. But where a contrary intention clearly emerges from the statute itself, that presumption loses its force, and the court is enjoined to disregard it. (3) On the other hand, in view of the above-mentioned presumption, a local statutory provision, which is open to equivocal construction and whose content does not demand another construction, must be construed in accordance with the rules of public international law. (Amsterdam v. Minister of Finance, Piske Din, vol. 6, pp. 945, 966; Lauterpacht-Oppenheim, 8th edition, vol. 1, p. 41, para. 21a). It should be noted that this rule of construction has no relevance to this case, since the nature of the law in question as one which established extra-territorial offences with retroactive effect is not in doubt. It follows from the second rule that even if Counsel for the Appellant was right in contending that the character of the law as described above is repugnant to international law, even then this contention cannot avail him. 8. We reach the same conclusion also in accordance with the first rule. For the sake of convenience, we shall state the grounds of our conclusions separately in respect of each of the two above-mentioned contentions of Counsel for the Appellant. As to the first contention, the reply must be that the principle nullum crimen sine lege, nulla poena sine lege, insofar as it negates penal legislation with retroactive effect, has not yet become a rule of customary international law: "There is no rule of general customary international law forbidding the enactment of norms with retrospective force, so called ex post facto laws" (Kelsen, Peace through Law (1944) p. 87). "There is clearly no principle of international law embodying the maxim against retroactivity of criminal law" (Julius Stone, Legal Controls of International Conflict (1959) p. 369). It is true that in many countries the above-mentioned principle has been embodied in the constitution of the state or in its criminal code, because of the considerable moral value inherent in it, and in such countries the court may not depart from it by one iota. (See Cr.A. 53/54: Eshed, Merkaz Zmani L'tahbura v. Attorney General, Piske Din, vol. 8, pp. 785, 819, 830-832.) But this state of affairs is not universal. Thus, in the United Kingdom, a country whose system of law and justice is universally recognized as being of a high standard, there is no constitutional limitation of the power of the legislature to enact its criminal laws with retrospective effect, and should it do so, the court will have no power to invalidate them (C.K. Allen, Law in the Making, 5th ed., p. 444). True, in those countries, too, there is widespread recognition of the moral value of the principle inherent in the above-mentioned maxim. But that recognition has become legally effective only to the extent that that maxim constitutes a rule of the interpretation of statutes. That is to say: Where there is a doubt as to the intention of the legislature, the court is directed not to construe the criminal statute under its consideration so as to include within its purview an act that was committed prior to its enactment. (Queen v. Griffiths (1891) 2 Q.B. 145, 148; Allen ibid., pp. 443-444). Similarly, the British Parliament usually avoids passing a criminal statute with retroactive effect, and it will do so only in an exceptional case where the object of salus populi impels the taking of this course, as stated by Willes J. in Phillips v. Eyre (L.R. 6 Q.B. 1, 25) which is cited in paragraph 7 of the Judgment. Therefore, if it is the contention of Counsel for the Appellant that we must apply international law as it is, and not as it ought to be from the moral point of view, then we must reply that precisely from a legal point of view there exists no such rule of international law; it follows necessarily that the above-mentioned principle cannot be deemed to be part of the Israel municipal law by virtue of international law, but that the extent of its application in this country is the same as in England.
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