Archive/File: people/e/eichmann.adolf/transcripts/Judgment/Judgment-001 Last-Modified: 1999/05/27 IN THE DISTRICT COURT OF JERUSALEM Criminal Case No. 40/61 Before His Honour JUDGE MOSHE LANDAU (Presiding) His Honour JUDGE BENJAMIN HALEVI His Honour JUDGE YITZCHAK RAVEH For the Prosecution: THE ATTORNEY GENERAL The Accused: ADOLF, son of Karl Adolf, EICHMANN J U D G M E N T The references in the Judgment are to the official record in Hebrew. Adolf Eichmann has been brought to trial in this Court on charges of unsurpassed gravity - charges of crimes against the Jewish People, crimes against humanity, and war crimes. The period of the crimes ascribed to him, and their historical background, is that of the Hitler regime in Germany and in Europe, and the counts of the indictment encompass the catastrophe which befell the Jewish People during that period - a story of bloodshed and suffering which will be remembered to the end of time. This is not the first time that the Holocaust has been discussed in court proceedings. It was dealt with extensively at the International Military Tribunal at Nuremberg during the Trial of the Major War Criminals, and also at several of the trials which followed; but this time it has occupied the central place in the Court proceedings, and it is this fact which has distinguished this trial from those which preceded it. Hence also the trend noticed during and around the trial, to widen its range. The desire was felt - understandable in itself - to give, within the trial, a comprehensive and exhaustive historical description of events which occurred during the Holocaust, and in so doing, to emphasize also the inconceivable feats of heroism performed by ghetto-fighters, by those who mutinied in the camps, and by Jewish partisans. There are also those who sought to regard this trial as a forum for the clarification of questions of great import, some of which arose from the Holocaust, while others, of long standing but which have now emerged once again in more acute form, because of the unprecedented sufferings which were visited upon the Jewish People and the world as a whole in the middle of the Twentieth Century. How could this happen in the light of day, and why was it just the German people from which this great evil sprang? Could the Nazis have carried out their evil designs without the help given them by other peoples in whose midst the Jews dwelt? Would it have been possible to avert the Holocaust, at least in part, if the Allies had displayed a greater will to assist the persecuted Jews? Did the Jewish People in the lands of freedom do all in its power to rally to the rescue of its brethren and to sound the alarm for help? What are the psychological and social causes of the group-hatred which is known as anti-Semitism? Can this ancient disease be cured, and by what means? What is the lesson which the Jews and other nations must draw from all this, as well as every person in his relationship to others? There are many other questions of various kinds which cannot even all be listed. 2. In this maze of insistent questions, the path of the Court was and remains clear. It cannot allow itself to be enticed into provinces which are outside its sphere. The judicial process has ways of its own, laid down by law, and which do not change, whatever the subject of the trial may be. Otherwise, the processes of law and of court procedure are bound to be impaired, whereas they must be adhered to punctiliously, since they are in themselves of considerable social and educational significance, and the trial would otherwise resemble a rudderless ship tossed about by the waves. It is the purpose of every criminal trial to clarify whether the charges in the prosecution's indictment against the accused who is on trial are true, and if the accused is convicted, to mete out due punishment to him. Everything which requires clarification in order that these purposes may be achieved, must be determined at the trial, and everything which is foreign to these purposes must be entirely eliminated from the court procedure. Not only is any pretension to overstep these limits forbidden to the court - it would certainly end in complete failure. The court does not have at its disposal the tools required for the investigation of general questions of the kind referred to above. For example, in connection with the description of the historical background of the Holocaust, a great amount of material was brought before us in the form of documents and evidence, collected most painstakingly, and certainly in a genuine attempt to delineate as complete a picture as possible. Even so, all this material is but a tiny fraction of all that is extant on this subject. According to our legal system, the court is by its very nature "passive," for it does not itself initiate the bringing of proof before it, as is the custom with an enquiry commission. Accordingly, its ability to describe general events is inevitably limited. As for questions of principle which are outside the realm of law, no one has made us judges of them, and therefore no greater weight is to be attached to our opinion on them than to that of any person devoting study and thought to these questions. These prefatory remarks do not mean that we are unaware of the great educational value, implicit in the very holding of this trial, for those who live in Israel as well as for those beyond the confines of this state. To the extent that this result has been achieved in the course of the proceedings, it is to be welcomed. Without a doubt, the testimony given at this trial by survivors of the Holocaust, who poured out their hearts as they stood in the witness box, will provide valuable material for research workers and historians, but as far as this Court is concerned, they are to be regarded as by-products of the trial. 3. Before we deal with the case itself, we desire to express our appreciation to the representatives of both parties, who laboured in the presentation of this case. The Attorney General, Mr. Hausner, and his assistants, Dr. Robinson, Mr. Bar-Or, Mr. Bach, and Mr. Terlo, who helped in the conduct of the case, carried an enormous burden on their shoulders, and displayed absolute mastery of the huge amount of legal and factual material prepared for them by the police investigators, who toiled before them in a manner which also deserves praise. The Attorney General himself emerged honourably from the dilemma, to which we alluded above, and which he, too, certainly felt in all its full impact. In spite of a slight deviation here and there from the narrow path which the Court saw as its duty to set, Mr. Hausner conducted the prosecution in its stages as a jurist and on a very high professional level. In his brilliant opening speech, which was eloquent and broad in perspective, and again in his concluding statement, he gave vent also to the deep feelings which stir the entire nation. Similarly, we wish to express our appreciation to Counsel for the Defence, Dr. Servatius, and his assistant, Mr. D. Wechtenbruch. Dr. Servatius, who stood almost alone in this strenuous legal battle, in an unfamiliar environment, always directed himself to the essence of the matter, and refrained from unnecessary controversy over matters which did not seem vital to him for the defence of his client, thereby affording valuable assistance to the Court. Thus even some uncalled-for notes in his concluding speech, which jarred on our ears, could not detract from the worthy and serious impression made by his arguments for the Defence as a whole. 4. At the outset, we must state the reasons for our Decision (No. 3 given on 17 April 1961, Session 6) relating to our jurisdiction to try this case. It is the duty of the Court to examine its competence ex officio even without the question having been raised by the Accused; indeed, even if the Accused had consented to be tried by this Court, we would not have been entitled to try him unless the law empowers us so to do. The law which confers on us jurisdiction to try the Accused in this case is the Nazis and Nazi Collaborators (Punishment) Law 5710-1950 (hereinafter referred to, for short, as "the Israeli Law," "the Law in question" or "the Law"). Section 1(a) of the Law provides: "A person who has committed one of the following offences (1) during the period of the Nazi regime in a hostile country, carried out an act constituting a crime against the Jewish People; (2) during the period of the Nazi regime, carried out an act constituting a crime against humanity, in a hostile country; (3) during the period of the Second World War, carried out an act constituting a war crime, in a hostile country; is liable to the death penalty." The three above-mentioned classes of crimes - crime against the Jewish People, crime against humanity, war crime - are defined in Section 1(b) (see infra) - Section 3(a) provides: "A person who, during the period of the Nazi regime, was a member of, or held any post or exercised any function, in a hostile organization, in a hostile country, is liable to imprisonment for a term not exceeding seven years." "A hostile organization" is defined in Section 3(b) (see infra). Section 16 defines the terms "the period of the Nazi regime," "the period of the Second World War," and "a hostile country." 5. In Criminal Appeal 22/52, Honigman v. Attorney General (7 Piske Din 296, 303), Justice Cheshin stated: "The Law in question is designed to make it possible to try in Israel Nazis, their associates and their collaborators for the murder of the Jewish People...and for crimes against humanity as a whole...this particular legislation is totally different from any other usual legislation in criminal codes: The Law is retroactive and extra-territorial..." Indeed, the expressions "in a hostile country," "during the period of the Nazi regime" and "during the period of the Second World War," which define the application of the Law in point of place and in point of time, indicate unequivocally that the crimes are "foreign crimes" and that the Law has retroactive application. These two elements do indeed diverge from the characteristics of usual criminal legislation which generally looks to the future and not - or at least not only - to the past; to the home country and not - or at least not only - abroad; but these elements necessarily derive from the very object of the Law for the Punishment of Nazis and their Collaborators. 6. Under Sections 6 and 7 of the Criminal Code Ordinance, 1936, the ordinary jurisdiction of the courts of Israel extends to any act committed in whole or in part within the boundaries of the state or within the three nautical miles territorial coastal limit, but Section 3(b) adds that nothing in the Ordinance shall derogate from the "liability of any persons to be tried and punished for any offence according to the provisions of the law on the jurisdiction of the Israeli courts with respect to acts committed outside the ordinary jurisdiction of these courts." One of the laws which establishes the jurisdiction of Israeli courts with respect to certain classes of offences committed abroad is the Criminal Law Amendment (Foreign Offences) Law, 5716- 1955. Another law of this order is the Law in question here. 7. The question as to whether the Israeli legislator may enact a criminal law with retroactive effect was considered in the first criminal case heard in this District Court after the establishment of the State and in the first appeal lodged with the Supreme Court of Israel, Criminal Appeal 1/48, Sylvester v. Attorney General (Pesakim I, 513, 528). Justice Smoira, the first President of the Supreme Court, said in his judgment, inter alia: "As regards the distinction between retroactive laws and ex post facto laws... I now revert to the judgment of Justice Willes in Phillips v. Eyre (L.Q. (1871) 6 Q.B. 1, at p. 25). He stated: "Justice Blackstone (Comm. 46) describes laws ex post facto of this objectionable class as those by which `after an action indifferent in itself is committed, the legislator then for the first time declares it to have been a crime, and inflicts a punishment upon the person who has committed it. Here it is impossible that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law; he had, therefore, no cause to abstain from it and all punishment for not abstaining must of consequence be cruel and unjust...' In fine, allowing the general inexpediency of retrospective legislation, it cannot be pronounced naturally or necessarily unjust. There may be occasions and circumstances involving the safety of the state, or even the conduct of individual subjects, the justice of which prospective laws, made for ordinary occasions and the usual exigencies of society, for want of prevision fail to meet, and in which the execution of the law as it stood at the time may involve practical public inconvenience and wrong, summum jus summa injuria. Whether the circumstances of the particular case are such as to call for special and exceptional remedy is a question which must in each case involve matter of policy and discretion fit for debate and decision in the parliament which would have had jurisdiction to deal with the subject matter by preliminary legislation, and as to which a court of ordinary municipal law is not commissioned to inquire or adjudicate." "... I am unable to add with gratification," continued the President, "that in acknowledging the retroactive effect of the law in question I am far from acknowledging a `barbaric' law, for it is precisely in pursuance with Justice Blackstone's definition that I hold that it cannot be said that the act of which the appellant was accused was `an action indifferent in itself, and only subsequently the legislator declared it for the first time to have been a crime.' The legislation with retrospective effect, here dealt with, has not created a new crime which had not hitherto been known in the Occupied Area of Jerusalem, and it cannot therefore be said that the person who commits the act of which the appellant is accused did not have a criminal intent (mens rea), because he did not and could not know that the act he was doing was a criminal act. On the contrary, it stands to reason that he who has actually committed such an act knew that an act of this kind is a crime. I, therefore, hold that by concluding that the Official Secrets Ordinance has retroactive effect, I do not come in conflict with the rules of natural justice or elementary equity." The President gave his judgment before the enactment of the Nazis and Nazi Collaborators (Punishment) Law, but his remarks are apt and relevant to our case. There is no subject of which it can be said with greater justice that "the usual laws enacted in ordinary circumstances and for the usual needs of society fall short of meeting the dictates of justice and law" (ibid., p. 532) than the subject of the Nazi crimes against humanity in general, and the Jewish People in particular. Not one of the crimes defined in the Law in question was, in the words of Blackstone, "an indifferent action when committed, and subsequently declared for the first time by the legislator to have been a crime." Neither has the retroactive legislation herein dealt with "created a new crime which had not hitherto been known" in Germany or German-occupied territories. On the contrary, all the above_mentioned crimes constituted crimes under the laws of all civilized nations, including the German people, before and after the Nazi regime, while the "law" and criminal decrees of Hitler and his regime are not laws, and have been set aside with retroactive effect even by the German courts themselves (see infra). It cannot be said that the perpetrators of the crimes defined in the Law in question "could not have a mens rea because they did not and could not know that what they were doing was a criminal act" (ibid). The extensive measures taken by the Nazis to efface the traces of their crimes, such as the disinterment of the dead bodies of the murdered and their cremation into ashes, or the destruction of the Gestapo archives before the collapse of the Reich, clearly prove that the Nazis knew well the criminal character of their enormities. A law that authorizes the punishment of Nazis and their collaborators does not "conflict," through its retroactive application, "with the rules of natural justice," in the words of the President; on the contrary, it enforces the dictates of elementary justice. 8. Learned Counsel does not ignore the fact that the Israeli Law applicable to the acts attributed to the Accused vests in us the jurisdiction to try this case. His contention against the jurisdiction of the Court is not based on this Law, but on international law. He contends - (a)that the Israeli Law, by inflicting punishment for acts committed outside the boundaries of the state and before its establishment, against persons who were not Israeli citizens, and by a person who acted in the course of duty on behalf of a foreign country ("Act of State") conflicts with international law and exceeds the powers of the Israeli legislator; (b) that the prosecution of the Accused in Israel upon his abduction from a foreign country conflicts with international law and exceeds the jurisdiction of the Court. 9. Before entering upon an analysis of these two contentions and the legal questions involved, we will clarify the relation between them. These two contentions are independent of each other. The first contention, which negates the jurisdiction of the Court to try the Accused for offences against the Law in question, is not bound up with, or conditional upon, the circumstances under which he was brought to Israel. Even had the Accused come to this country of his own free will, say as a tourist under an assumed name, and had he been arrested here upon the verification of his true identity, the first contention of Counsel that the Israeli Court has no jurisdiction to try him for any offences against the Law in question would still stand. The second, additional, contention is that no matter what the jurisdiction of the Israeli Court is to try offences attributed to the Accused in ordinary circumstances, that jurisdiction is in any case negated by reason of the special circumstances connected with the abduction of the Accused in a foreign country and his prosecution in Israel. We will therefore deal with these two questions seriatim.
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