The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 1999/05/28

Attorney General:  May it please the Court. I am not afraid
of an inundation since the Court will have ample material
after we conclude our case, to be able to judge what is true
and what is false and will itself be able to sort the wheat
from the chaff in the light of other evidence which I hope
will be credible. In any case we are dealing with a law
containing special provisions concerning the rules of
evidence.  And I visualize that one of the difficulties in
this case is the material concerning which a decision must
be taken from the point of view of the rules of evidence.
And, therefore, I would not be so concerned. But I am ready
to take this one step further. And if the argument of
Defence Counsel is that these people are not willing to
volunteer of their own good will to give him affidavits and
I cannot force them to give affidavits - however if this
case were in Germany then I would, with the authority of the
Court, summon them and they would be obliged to appear and
give evidence, whereas I cannot force them to make
affidavits before a notary or before a consul. If this is
the argument, then I declare here that I would be ready, in
an appropriate case and after being convinced that it is
desirable to do so, to make use for this purpose of the
arrangements for legal assistance existing between the State
of Israel and the Federal Republic, in order that persons
who have something to say should appear before a Judge in
Germany. There they will be examined before representatives
of both sides - there there would be cross-examination;
there their statements  would be examined from the point of
view  of truthfulness. And I would ask this Court - or more
correctly I would associate myself with the application of
Defence Counsel, since he is interested in this - to submit
this material as evidence in this case. I think in so doing
I have gone to the limit of my ability to promise Defence
Counsel that all relevant evidence, if he has such, can be
brought before this Court. Despite this I have not, to this
day, received from Defence Counsel any notification
whatsoever concerning the bringing of a particular witness
who fears for his personal safetly or his indictment in the
State of Israel. And now, with the Court's permission, in
the time remaining for me, I shall touch upon the legal
problems arising out of the question of the detention and
transfer of a person to another jurisdiction. My argument is
that where a person is legally Accused: of committing a
crime and he is legally kept under arrest at the time when
he is brought before the Court and stands his trial, the
Court should not examine the circumstances which led to the
fact that the Accused is brought before the Court. In other
words - the circumstances of the Accused's detention, his
seizure and his transfer are not relevant for competence and
they contain nothing which can affect this competence, and
since they are not relevant, they should not be considered
and evidence concerning them should not be heard. This rule
has been written into the statue books of countries
observing the rule of law since the judgment in Ex parte
Scott, reported in Vol. 109 of the "English Reports," on
page 166. And these were the facts: An indictment for
perjury was preferred in England against a woman named
Susanna Scott. A warrant for arrest was issued against her.
With the Court's permission I shall read the remaining facts
from the judgment itself appearing in the Report:

     "It appeared by the affidavits that a bill of
     indictment  for perjury had been found against her, and
     on the 11 February, Lord Tenterden C.J. granted a
     warrant for her apprehension, in order that she might
     appear and plead to the indictment, and C. Ruthven, a
     police officer, to whom the warrant was specially
     directed, apprehended Scott in Brussels;  she applied
     to the English Ambassador there for assistance but he
     refused to interfere, and Ruthven conveyed her to
     Ostend, and thence to       England, and on the 9th of
     April, she was brought before Lord Tenterden, and by
     him committed to the K.B. Prison. A  bill was found
     against the prisoner for a misdemeanour; there is no
     doubt that she is now rightfully in custody for want of
     bail. And when a party is liable to be detained on a
     criminal charge, the Court will not inquire into the
     manner in which the caption was effected."

On the following page Lord Tenterden says:

     "The question, therefore, is this, whether if a person
     is charged with a crime is found in this country, it is
     the duty of the Court to take care that such a party
     shall be amenable to justice, or whether we are to
     consider the circumstances under which she was brought
     here. I thought and still continue to think, that we
     cannot inquire into them. If the act complained of were
     done against the law of a foreign country that country
     might have vindicated its own law. If it gave her a
     right of action, she may sue upon it."

The same problem was considered in England 120 years later.
And I read from the judgment in R.v.O/C Depot Battalion
P.A.S.C. Colchester. Ex parte Elliott (1949) 1, "All England
Reports," page 373. This was a case of a British deserter
who was arrested by British officers in Antwerp two years
after his desertion and who was brought to England.  He
obtained a decree nisi on the basis of the argument that he
was held under arrest illegally owing to the fact that he
was brought from Belgium against his will and under
coercion. I quote from the judgment of Lord Goddard on page

     "On the applicant's part two points have been taken. It
     is said that his arrest was illegal because (i) the
     British authorities had no authority to arrest him in
     Belgium and he was arrested contrary to Belgian Law,
     and (ii) his arrest was not in compliance with the
     provisions of s. 154 of the Army Act.  The point with
     regard to the arrest in Belgium is entirely false. If a
     person is arrested abroad and he is brought before a
     court in this country charged with an offence which
     that court has jurisdiction to hear, it is no answer
     for him to say, he being then in lawful custody in this
     country: 'I was arrested contrary to the laws of the
     State of A or the State of B where I was actually
     arrested.' He is in custody before the court which has
     jurisdiction to try him.  What is it suggested that the
     court can do?  The court cannot dismiss the charge at
     once without its being heard. He is charged with an
     offence against English law, the law applicable to the
     case. If he has been arrested in a foreign country and
     detained improperly from the time that he was first
     arrested until the time he lands in this country, he
     may have a remedy against the person who arrested and
     detained him, but that does not entitle him to be
     discharged, though it may influence the court if they
     think there was something irregular or improper in the
     arrest.  Once he is before the court, it can hold him
     to bail until his trial and conviction."

That is to say, the question of the kidnapping is likely to
have an effect, possibly on release on bail.  After quoting
Ex parte Scott with approval, the Court analyses the
Scottish decision and states the following at the end of
page 377:

     "That, again, is a perfectly clear and unambiguous
     statement of the law administered in Scotland. It shows
     that the law of both countries is exactly the same on
     this point and that we have no power to go into the
     question, once a prisoner is in lawful custody in this
     country, of the circumstances in which he may have been
     brought here. The circumstances in which the applicant
     may bave been arrested in Belgium are no concern of
     this court."

The Supreme Court of Palestine in the days of the Mandate
followed the English and American practice and laid down the
same principle in Criminal Appeal 14/42, Afuna vs Attorney
General: ("The Law Reports of Palestine" Vol. 9/1942), page
63). Here it was established that a man fled to Syria after
being suspected of committing murder. He was arrested in
Damascus by a British sergeant and brought to this country
for trial. He argued that his arrest had been illegal and
accordingly he should be released. The Supreme Court did not
accept this argument. I read from page 66:

     "Counsel on neither side was able to refer us to any
     direct authority covering a case, such as the present,
     where a person has been irregularly apprehended not as
     a result of extradition proceeding at all."

I quote the American report from the judgment of the
Mandatory Court:

     "In our opinion, the law is correctly stated in volume
     4 of Moore's Digest of International Law, at page 311.
     1) The authority cited is an American (State) case
     which, of course, is not binding on this Court.
     Nevertheless we adopt the language used, which is as
     follows -'where a fugitive is brought back by
     kidnapping, or by other irregular means, and not under
     an extradition treaty, he cannot, although an
     extradition treaty exists between the two countries,
     set up in answer to the indictment the unlawful manner
     in which he was brought within the jurisdiction of the
     court. It belongs exclusively to the government from
     whose territory he was wrongfully taken to complain of
     the violation of its rights.'"
And the Mandatory court goes on to say:

     "Accepting that view of the law we think that there is
     no substance in the extradition point."

In the United States of America there are special
constitutional guarantees for protecting the rights of the
individual. As it is a federation of states, it is very
sensitive to the problem of the competence of the central
Government and of the competence of the states comprising
the United States of America as between themselves and of
the relations between the United States and foreign
countries. Furthermore: American courts have laid down that
public international law is part of the internal law of the
United States, and it applies to the relations of the United
States with foreign countries and to the relation of the
states with one another. The Court will see this practice in
"American Jurisprudence" vol 30, pages 440-441.

     "Unless there is some treaty or statute to the
     contrary, the law of nations is to be treated as part
     of the law of the land. The courts of all nations
     judicially notice this law, and it must be ascertained
     and administered by the courts of appropriate
     jurisdiction as often as questions of right depending
     upon it are duly presented for their determination.
     Occasionally the statutes conferring jurisdiction to
     hear and determine particular controversies require the
     courts to render their decisions in accordance with the
     rules of international law. It has been held that an
     act of Congress ought never to be construed to violate
     the law of nations if any other possible construction
     remains. When the United States declared their
     independence, they were bound to receive the law of
     nations in its modern state of purity and refinement.
     International law forms a part of the law of the
     several states. It is a part of the law of every state
     which is enforced by its courts without any
     constitutional or statutory  act or incorporation by
     reference, and while a court may be without
     jurisdiction to enforce international law in a given
     case by reason of some controlling statute,
     nevertheless, relevant provisions of the law of nations
     are legally paramount whenever international rights and
     duties are involved before the court having
     jurisdiction to enforce them."

And in that country, where such is its relationship to
international law, a general practice has been established
the contents of which I shall read from Corpus Juris
Secundum and thereafter I shall examine it for details.

Presiding Judge:  Perhaps you would quote the extract from
Corpus Juris Secundum and with this we shall conclude the
morning session.

Attorney General:  I quote from Criminal Law, vol 22, page
236, paragraph 144 in which the practice was defined in the
following terms:

     Custody of the Accused: by the court, or his presence
     therein on a proper charge, is essential to the
     jurisdiction of the court over him. The manner in which
     the Accused: is brought before the court, however,is
     ordinarily immaterial in so far as jurisdiction  over
     him is concerned."

And on page 242, in paragraph 146:

     "In accord with the general rule stated in paragraph
     144 supra, to the effect that a court will not inquire
     into the manner in which the Accused: is brought before
     it, the fact that Accused: has been illegally arrested,
     or that he has by trickery, force, or without legal
     authority, or by any illegal means, been brought within
     the territorial jurisdiction of a state or federal
     court, does not oust the jurisdiction of that court.
     Even if in any case there should be a conflict of
     jurisdiction between two courts, accused, who is before
     one court for trial, cannot take advantage of the fact
     that his presence has been illegally or improperly

Presiding Judge:  Is this a convenient point, Mr. Hausner
where we may stop?

Attorney General:  As you please, your Honour.

Presiding Judge:  We shall accordingly stop now. The
afternoon session will begin at 16.30 hours, exceptionally,
in order to enable us to participate in the funeral of the
State Attorney, whose passing we deeply mourn. The next
session will be at 16.30 today.

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