Archive/File: people/e/eichmann.adolf/transcripts/Judgment/Judgment-009 Last-Modified: 1999/05/27 50. Indeed, there can be no escaping the conclusion that the violation of international law through the mode of the bringing of the accused into the territory of the country pertains to the international level, namely the relations between the two countries concerned only, and must find its solution at such level. The violation of the international law of this kind constitutes an international tort to which the usual rules of customary international law apply. The two important rules in this matter are (see Schwarzenberger, Manual of International Law, 1960, I 162) - (a) "The commission of an international tort involves the duty to make reparations"; (b) "By consent or acquiescence, an international claim in tort may be waived and, in this way, the breach of any international obligation be healed." Through the joint decision of the Governments of Argentina and Israel of 3 August 1960 "to view as settled the incident which was caused through the action of citizens of Israel that has violated the basic rights of the State of Argentina," the country whose sovereignty was violated has waived its claims, including the claim for the return of the Accused, and any violation of international law which might have been linked with the incident in question has been "cured." Therefore, according to the principles of international law, no doubt can be cast on the jurisdiction of Israel to bring the Accused to trial after 3 August 1960. After that date, no cause remains on the score of a violation of international law which could have been adduced by him in support of any contention against his trial in Israel. We have said above that, in our view, so far as this case is concerned, it is immaterial how this controversy is to be determined, and we might add that even the slight doubt as to the import of English judicial precedent which was raised by O'Higgins has no practical relevance to this case. The Accused was brought to trial after the "violation of international law," upon which the learned Counsel bases his pleadings, had been made the subject of negotiations between the two countries concerned, and had been settled by their mutual consent. Therefore, Counsel had not in effect any foundation in international law for his contention, even if the premise be true that the Accused was abducted by agents of the State of Israel. Insofar as Argentina's sovereignty had been impaired, "the incident has been settled," and thereupon the episode of the kidnapping of the Accused descended from the level of international law to the level of municipal law (in the sense of the distinction between the two as made by Morgenstern, Dickinson and O'Higgins). Following upon the settlement of the incident between the two countries prior to the bringing of the Accused to trial, the judgment may be based without hesitation on the whole chain of British, Palestinian and American continuous judicial precedents, beginning from Ex parte Scott to Frisbie v. Collins et seq. If the violation of Argentina's sovereignty is excluded from consideration, then the abduction of the Accused is not different from any unlawful abduction, whether it constituted a contravention of Argentine law or Israeli law or both. Thus, after the enactment of the Federal Kidnaping Act, the United States Supreme Court ruled unanimously in Frisbie v. Collins (1952) 342 U.S. 512 (96 L. Ed. 541), p. 545): "This Court has never departed from the rule announced in Ker v. Illinois, 119 US 436, 444, that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court's jurisdiction by reason of a `forcible abduction.' No persuasive reasons are now presented to justify overruling this line of cases. They rest on the sound basis that due process of law is satisfied when one present in court is convicted of crime after having been fairly apprised of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will. "Despite our prior decisions, the Court of Appeals, relying on the Federal Kidnaping Act, held that respondent was entitled to the writ if he could prove the facts he alleged. The Court thought that to hold otherwise after the passage of the Kidnaping Act `would in practical effect lend encouragement to the commission of criminal acts by those sworn to enforce the law.' In considering whether the law of our prior cases has been changed by the Federal Kidnaping Act, we assume, without intimating that it is so, that the Michigan officers would have violated it if the facts are as alleged. "This Act prescribes in some detail the severe sanctions Congress wanted it to have. Persons who have violated it can be imprisoned for a term of years or for life; under some circumstances violators can be given the death sentence. We think the Act cannot fairly be construed so as to add to the list of sanctions detailed, a sanction barring a state from prosecuting persons wrongfully brought to it by its officers. It may be that Congress could add such a sanction. We cannot." On the solid ground of municipal law, the Accused can have no argument against the jurisdiction of the Court, while his contention based on the "violation of international law" is untenable because such ground did not exist, at all events, at the time when he was put on trial. 51. The fact that the Accused had no immunity, following upon Argentina's assent to view the incident as settled, may also be deduced from United States ex rel. Donnelly v. Mulligan, (1935) 76 F (2d) 511. The appellant was extradited from France to the United States and, before the thirty day period of immunity prescribed in the extradition treaty between the two countries, had elapsed, the appellant was arrested anew for extradition to Canada. In their first decision (74 F (2d) 220), the Court of Appeals decided to release, pursuant to the ruling in U.S. v. Rauscher. Subsequent to that decision, the President of the French Republic issued an order authorizing the United States to surrender the appellant to Canada. When the case came to be reheard, the Court of Appeals decided that the new order of France had deprived the appellant of his immunity under the above-mentioned extradition treaty. Stating its reasons for the judgment, the Court said inter alia (p. 512): "The appellant cannot complain if France acted under the treaty, nor can he complain if it acted independent of the treaty as an act of international comity. The French decree consents to his re-extradition; moreover, it may be regarded as a consent given independently of the treaty and as an act of international comity. If under the treaty, it is conclusive upon the appellant. France had the right to give or withhold the asylum accorded him as it saw fit. And it has withheld asylum for the purpose of re-extradition to Canada. The appellant cannot question this action on the part of France." page 513: "Extradition treaties are for the benefit of the contracting parties and are a means of providing for their social security and protection against criminal acts, and it is for this reason that rights of asylum and immunity belong to the state of refuge and not to the criminal." If the immunity of that appellant which was assured by the extradition treaty whereby France surrendered him to the United States was taken away through France's assent and the withdrawal of her protection of him, there is all the less reason for the present Accused, who was never protected by the principle of U.S. v. Rauscher, to claim personal immunity (for this is what his contention against jurisdiction really amounts to), by reason of the violation of the sovereignty of a country that has waived all her claims with reference to such violation and has not extended any protection to the Accused. See also statements made in Ker v. Illinois (above) on the difference between the right of a sovereign country to offer an offender asylum within its territory and the demand of the offender for the grant of such asylum. In the words of the summing up in U.S. v. Mulligan, "the rights of asylum and immunity belong to the land of the asylum and not to the offender." The above-mentioned precedent, which is also cited by Hyde (ibid.) p. 1035 and Oppenheim (Lauterpacht) (ibid.) p. 702, conforms to the principles of current international law. See Moore, Extradition (1891) Vol. 1, p. 251: "... The immunity of the extradited person...rests upon a contract between the two governments... His immunity is within the control of the surrendering government, and he could not be permitted to set it up, if that government should waive it." page 279 "The character of a fugitive from justice cannot confer upon him any immunities." See also Harvard Research in International Law, Draft Convention on Extradition, 29 AJIL (Suppl.) 1935, p. 213 (our emphasis): "Part V: Limitations upon the Requesting State Article 23. Trial, Punishment and Surrender of Extradited Person. (1) A State to which a person has been extradited shall not, without the consent of the State which extradited such person: (a) Prosecute or punish such person for any act committed prior to his extradition, other than that for which he was extradited; (b) Surrender such person to another State for prosecution or punishment..." Also section 24 of the Extradition Law 5714-1954: "Persons extradited to Israel" "Where a person is extradited to Israel by a foreign country, such person shall not be held in custody or prosecuted for any other offence he committed prior to his extradition, nor be extradited to another country for an offence committed prior to his extradition, unless such foreign country had given its consent in writing to such action, or if such person failed to leave Israel within sixty days after having been enabled, upon his extradition, so to do, or if he left Israel upon his extradition and returned thereto of his own free will." Kelsen was right, therefore, when he stated in his General Theory of Law and State (1949) p. 237, that: "Extradition treaties establish duties and rights of the contracting States only." and so was Schwarzenberger when he said in 3 Current Legal Problems (1950) p. 272: "It would be...a travesty of the real situation to imagine that States intended an extradition treaty to be the Magna Carta of the criminal profession, or to be based on any principles of international law which prisoners are `entitled to invoke in their own right'." The words "entitled to invoke in their own right" are directed against the views of Lauterpacht, in 64 Law Quarterly Review (1948) p. 100. There is no doubt that Schwarzenberger represents the dominant view and the rule of law in force on this issue. It is also acknowledged on the continent of Europe, including Germany: see Dahm (ibid.), pp. 279-280, and is in actual usage and application in the judicial decisions of most countries (see ibid., note 26). 52. On the subject of the want of immunity of a fugitive offender in his own right, as distinct from an immunity ensuing from a contractual commitment between sovereign countries, we find some interesting observations in Chandler v. United States (1949) 171 F. 2d 921, where it is said (p. 935): "Nor was Chandler's arrest in Germany a violation of any `right of asylum' conferred by international law. In the absence of treaty a State may, without violating any recognized international obligation, decline to surrender to a demanding State a fugitive offender against the laws of the latter... Particularly as regards fugitive political offenders - including, presumably, persons charged with treason... - it has long been the general practice of States to give asylum. But the right is that of the State voluntarily to offer asylum, not that of the fugitive to insist upon it. An asylum State might, for reasons of policy, surrender a fugitive political offender - for example, a State might choose to turn over to a wartime ally a traitor who had given aid and comfort to their common enemy - in such a case we think that the accused would have no immunity from prosecution in the courts of the demanding State, and we know of no authority indicating the contrary... One can appreciate the considerations which ordinarily would make a State reluctant to give affirmative assistance to a sister State in the apprehension and prosecution of a fugitive charged with a political offence. But these considerations are inapplicable to the wronged State, which naturally would have no qualm or scruple against bringing a fugitive traitor to trial if it could lay hands on him without breaking faith with the asylum State." It is hardly necessary to state, with reference to the above, that the Accused is not at all a "political" criminal; the reverse is the case: The crimes which are attributed to the Accused have been condemned by all nations as "abhorrent crimes" whose perpetrators do not deserve any asylum, "political" or other. We have already referred above to Article 7 of the International Convention for the Prevention and Punishment of Genocide which lays down the principle that the "extermination of a people and other acts set out...will not be deemed political crimes for the purpose of extradition." Moreover, the United Nations Assembly enjoined in repeated Resolutions (Resolutions of 12- 13.2.46 and 31.10.47) all states, whether or not Member States of the United Nations, to arrest the war criminals and the perpetrators of crimes against humanity wherever they may hide, and to surrender them, even without resort to extradition, with a view to their expeditious prosecution. (See History of War Crimes Commission, pp. 411-414.) There is considerable foundation for the view that the grant by any country of asylum to a person accused of a major crime of this type and the prevention of his prosecution, constitute an abuse of the sovereignty of the country, contrary to its obligation under international law (see Oppenheim-Lauterpacht, ibid., Vol. 2, p. 588). See also the Resolution passed in Mexico City in March 1945 by the "Inter- American Conference on the problem of War and Peace," also the article by H. Silving, "In Re Eichmann: A Dilemma of Law and Morality," in 55 AJIL (1961) 307, p. 324. In the Note addressed on 8 June 1960 by Argentina to Israel, which was published by the Security Council in Security Council Official Records, Suppl. for April, May and June 1960, p. 24, document S/4334, the Argentinian nation expressed: "its most emphatic condemnation of the mass crimes committed by the agents of Hitlerism, crimes which cost the lives of millions of innocent beings belonging to the Jewish People and many other peoples of Europe," and proceeded to say: "The fact that one of the aforesaid agents, precisely the one who is accused of having conceived and directed the cold_blooded execution of a vast plan of extermination, should have entered and settled in Argentine territory under a false name and false documents, in obviously irregular circumstances in no way covered by the conditions for territorial asylum or refuge, does not justify the gratuitous assertion that many Nazis live in Argentina." The question as to whether or not other Nazis reside in Argentina has no relevance to this case, and if we cite from the above-mentioned Note, it is only to show that the position taken by the Government of Argentina is that Argentina has not given asylum or refuge to the Accused who entered her territory and settled therein "under a false name and false documents," in "obviously irregular" circumstances which do not in any way tally with "conditions for territorial asylum or refuge." That position conforms to the principles of international law and the Resolution of the Inter-American Conference referred to above. The Accused is not a "political" criminal, and Argentina has given him no right of "refuge" in her territory, and all that has been said in our precedents on the subject of the want of the right of refuge of a "political criminal" applies to the Accused a fortiori. See also Criminal Appeal 2/41 Youssef Sa'id Abou Durrah v. Attorney General (PLR Vol. 8, p. 43) in which the appellant was extradited by Transjordan to Palestine under the Extradition Agreement of 1934 between the two governments, was charged with murder and sentenced to death by the Court of Criminal Assizes in Jerusalem. Counsel for appellant pleaded (a) that the extradition was effected contrary to the provisions of the Extradition Agreement; (b) that the offence was "political" (and therefore not "extraditable"). The Supreme Court decided (pp. 44-45): "It is argued, in the first place, that the extradition proceedings were improper and that therefore the Assize Court had no jurisdiction to try the man... If the Government concerned is satisfied that the provisions of Articles 4, 5 and 6 have been carried out, that, we think, must be the end of the matter, except that possibly the Courts of this country are not entitled to try the man for an offence different from that on which his extradition was obtained. "Finally, it is said that this is a political offence. Under the law of this country, murder is murder pure and simple, whatever the motives may be which inspired it. We know of nothing in the criminal law of this country or of England that creates a special offence called political murder. In any case, even supposing it were a political murder, nothing prevents the man, if he is within the jurisdiction of this country, from being tried for it."
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