Archive/File: people/e/eichmann.adolf/transcripts/Judgment/Judgment-010 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 Court...in 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 years. 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 Court. (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 whole. (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 proceed. (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 deeds.
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