Archive/File: people/e/eichmann.adolf/transcripts/Sessions/Session-003-05 Last-Modified: 1999/05/28 Presiding Judge: Should this not be extraterritorial? Attorney General: It can be either way. In American literature they say exterritorial, while others say extraterritorial. But if the Court prefers extraterritorial;... Presiding Judge: No, do as you prefer. Attorney General: If our law is in fact invalid, then even if the Accused had come here of his own free will and not by force, it would not be possible to try him, if the law is not a law. And if his being brought here forcibly negates the trial and the jurisdiction, it invalidates the jurisdiction in respect of all offences, including laws which are not exterritorial, even normal laws. Therefore it is necessary to differentiate between the two arguments and there is no inherent connection between them. Defence Counsel linked them together, and I ask to deal with each one separately, since each of them points to different legal concepts. Yesterday, I discussed the question of bringing a man within the jurisdiction by force and there is no need for repetition. I shall, therefore refer to the other part of the argument, which claims to invalidate our law on the grounds that it applied to acts which were not committed on the territory of Israel, at the time when the State of Israel was not yet a reality. The principles which generate jurisdiction to deal with criminal matters were examined already before the Second World War by a number of outstanding jurists in the United States, in a research study conducted under the auspices of Harvard University. The Court will find abundant material in the report of the researchers. It is a scientific study. I shall only read a short extract therefrom, to be found in the American Journal of International Law, Volume 29 of the year 1934 - Supplement. I quote from page 445: "An analysis of modern national codes of penal law procedure, checked against the conclusions of reliable writers and the resolutions of international conferences or learned societies, and supplemented by some exploration of the jurisprudence of national courts, discloses five general principles on which a more or less extensive penal jurisdiction is claimed by States at the present time. These five general principles are: first, the territorial principle, determining jurisdiction by reference to the place where the offence is committed; second, the nationality principle, determining jurisdiction by reference to the nationality or national character of the person committing the offence; third, the protective principle, determining jurisdiction by reference to the national interest injured by the offence; fourth, the universality principle determining jurisdiction by reference to the custody of the person committing the offence; and fifth, the passive personality principle, determining jurisdiction by reference to the nationality or national character of the person injured by the offence. Of these five principles, the first is everywhere regarded as of primary importance and of fundamental character. The second is universally accepted, though there are striking differences in the extent to which it is used in the different national systems. The third is claimed by most States, regarded with misgivings in a few, and generally ranked as the basis of an auxiliary competence. The fourth is widely, but by no means universally accepted as the basis of an auxiliary competence, except for the offence of piracy with respect to which it is the generally recognized principle of jurisdiction. The fifth, asserted in some form by a considerable number of States and contested by others, is admittedly auxiliary in character and is probably not essential for any State if the ends served are adequately provided for in other principles." It is, therefore, not true to say that one principle only generates jurisdiction, and that is the territorial principle. There are a number of principles, some more accepted, some less, some more widely spread, some less. In 1935 the Harvard researchers had not yet experienced the [Second] World War and its crimes, and the principle which would have to be developed as a consequence thereof. But even if we deal with the territorial principles and a State's right to enact laws which have applications beyond its borders, it would appear that even before the World War principles had become accepted that were not in conformity with what Defence Counsel submitted here. The problem was discussed in greater comprehensiveness by the International Court at the Hague, in the well-known judgment in the matter of the "Lotus." The facts in the "Lotus" case and the judgment were published in the official publication of the International Court, Booklet 10 - "Affaire du 'Lotus'." Presiding Judge: Booklet 10 - what series was this? Attorney General: Publications of the Permanent Court of International Justice, Series A - No. 10. The facts are as follows (they appear on page 10): The French ship "Lotus" which was on its way to Constantinople collided with the Turkish ship "Boz-Kourt" on the open seas. The fact that this was on the high seas is clear from page 5 where it is stated: "On the high seas between the French steamer Lotus and the Turkish steamer Boz-Kourt, a collision occurred on August 2nd, 1926..." The Turkish ship was cut into two and eight Turkish subjects who were on board, were drowned. When Mr. Demons who was the officer of the watch of the ship "Lotus" at the time of the collision reached Constantinople and disembarked from his ship, he was arrested by the Turkish authorities and brought to trial for the offence of harming Turkish citizens. He argued that the Turkish extraterritorial law, which laid down that the infliction of injury upon a Turkish subject anywhere in the world was a criminal offence under Turkish law, was not valid, and accordingly, as he argued, the Turkish Court did not have jurisdiction to deal with his case. The Court did not accept his argument, and after a dispute had arisen between France, Demons' country, and Turkey which was demanding jurisdiction for herself, the two countries agreed to refer the question of the legitimacy of the Turkish law to the decision of the International Court at the Hague." I quote from page 12 (in English) "The violation, if any, of the principles of international law would have consisted in the taking of criminal proceedings against Lieutenant Demons. It is not therefore a question relating to any particular step in these proceedings - such as his being put to trial, his arrest, his detention pending trial or the judgment given by the Criminal Court of Stamboul - but the very fact of the Turkish Courts exercising criminal jurisdiction. That is why the arguments put forward by the Parties in both phases of the proceedings relate exclusively to the question whether Turkey has or has not, according to the principles of international law, jurisdiction to prosecute in this case. The Parties agree that the Court has not to consider whether the prosecution was in conformity with Turkish law; it did not, therefore, consider whether, apart from the actual question of jurisdiction, the provisions of Turkish law cited by Turkish authorities were really applicable in this case, or whether the manner in which the proceedings against Lieutenant Demons were conducted might constitute a denial of justice, and accordingly, a violation of international law. The discussions have borne exclusively upon the question whether criminal jurisdiction does or does not exist in this case." And at the foot of page 18:- "Now the first and foremost restriction imposed by international law upon a State is that - failing the existence of a permissive rule to the contrary - it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial, it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention. "It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law. Such a view would only be tenable if international law contained a general prohibition to States to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, and if, as an exception to this general prohibition, it allowed States to do so only in certain specific cases. But this is certainly not the case under international law as it stands at present. Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable." And consequently this was the final majority conclusion in the"Lotus" case on page 32: "For THESE REASONS the Court, having heard both parties, gives, by the President's casting vote - the votes being equally divided - judgment to the effect: (1) that, following the collision which occurred on August 2nd, 1926, on the high seas between the French steamship Lotus and the Turkish steamship Boz-Kourt, and upon the arrival of the French ship at Stamboul, and in consequence of the loss of the Boz-Kourt having involved the death of eight Turkish nationals, Turkey, by instituting criminal proceedings in pursuance of Turkish law against Lieutenant Demons, officer of the watch on board of the Lotus at the time of the collision, has not acted in conflict with the principles of international law..." Judge Halevi: I have a question to the Attorney General. Did the majority in the International Court accept the general principles, or did the majority only decide in fact that Turkey had not violated international law, and was this majority made up of judges holding conflicting views regarding the general principles? Attorney General: It was so, Your Honour. But I will submit immediately that not only the views of the majority have to be examined, but also those of the minority; and I want to ask myself: if the "Lotus" issue had been discussed not when it was discussed but today, what would those same minority judges say - the Dutch, for example, or the English - in view of the developments in their policies on the territorial question which occurred meanwhile in their countries. The Dutch judge said that the criminal law cannot apply beyond the jurisdiction of the country which enacted it, and he was firm on this principle, on that of his country, the territorial principle. But the law develops and now let us see what Holland herself did in the meantime. Let us look at the International Law Report of the year 1951, page 206, edited by Lauterpacht: "The defendant, a woman of Belgian nationality and domiciled in Belgium, was prosecuted in the Special Police Court of Breda on November 2, 1950, for having acted in Belgium as an accessory to offences committed by Netherland subjects against the Dutch Currency Decree...The conviction was upheld by the Court of Appeal at s'Hertogenbosch on March 7, 1951. "The defendant appealed further. "Held (by the Supreme Court): that the accused was rightly convicted. The acts committed by the accused did not come under any of the general principles of applicability of Netherlands criminal law as laid down in Book 1, Section 1, of the Netherlands Penal Code. These acts could therefore only fall under the scope of Dutch criminal law in virtue of the special provisions contained in Article 31 of the Emergency Decree of 1945 on Currency Restrictions. Those provisions were directed not only against Netherlands subjects who committed currency offences in a foreign country, but also to foreign nationals abroad who were accessories to such offences." The Dutch law, in this age of aircraft - I could add possibly today, in the age of jets and rockets - says: It is impossible to stand firm any longer on the territorial principle. We must depart from these limitations. There are crimes which by their very nature are committed between countries. True, in a relatively primitive period, at the beginning the law adhered to this principle. Here is the crime, here are your judges, here are your witnesses, here they know you - here you will be judged. But today, with the development of the world, and the development of the principle of international law, there is no longer this faithfulness to the territorial principle, and I doubt whether that same British judge, Lord Finlay, who also dissented from the majority opinion in "Lotus," would today give the judgment that he gave then. Presiding Judge: Why, Sir, are you connecting this with the most sophisticated means of transportation - if we may presume that rockets are means of transportation? Attorney General: Rockets are simply a sign of the times. It is a fact that the world has been converted into one world, and in consequence of easy opportunities to move from place to place today, to commit crimes that cross boundaries, the law has had to adjust itself to a new framework. Let us take the well-known instance of the judgment in the case of Joyce who was known by the popular name of Lord Haw_Haw (Joyce v. Director of Police Prosecutions, 1946 Appeals cases - A.C. 347). What did Joyce do? Joyce served the Nazi Germans by broadcasts directed to England. He did not set foot on English soil while he committed his crimes. His words travelled over the ether waves. His insidious and subversive propaganda was the aspect found to be treasonable. That was what brought him to trial. I am not dealing now with the special aspects of the Joyce case, his loss of British nationality, his own surrender of British nationality and so on. This does not affect us. But what does matter to me is this territorial principle. When the matter was argued in Court, Joyce said: "What do you want of me? You are the country attached more than others to the territorial principle. How can you judge me? I did not step on English soil for one moment at the time I committed those acts which you now say are treasonable." What did the Court say? What did the Lord Chancellor, Lord Jowitt say? On page 372 he says: "No principle of comity demands that a state should ignore the crime of treason committed against it outside its territory. On the contrary a proper regard for its own security requires that all those who commit that crime, whether they commit it within or without the realm should be amenable to its law." And Lord Jowitt simply ignores the territorial principle and says: "It does not matter where you committed the offence. The security of the state makes it essential that legislation should embrace the whole world, and wherever you commit this act - when you are caught by us, you will pay the penalty for it." This development of the law in this case is even more noteworthy when we compare to this the authority on which Lord Finlay, the English judge in the "Lotus" case relied. He relied on the statement appearing in the third edition of International Law by Oppenheim (the book was published in 1920). In the first volume, Peace, the author says (on page 240): "The question is, therefore, whether States have a right to jurisdiction over acts of foreigners committed in foreign countries, and whether the home State of such an alien has a duty to acquiesce in the latter's punishment in case he comes into the power of these States. The question which is controversial, ought to be answered in the negative. For at the time such criminal acts are committed the perpetrators are neither under the territorial not under the personal supremacy of the States concerned. And a State can only require respect for its laws from such aliens as are permanently or transiently within its territory. No right for a State to extend its jurisdiction over acts of foreigners committed in foreign countries can be said to have grown up according to the Law of Nations." On this, Lord Finlay based his dissenting opinion and said: "Turkey had no right to try Demons." But let us take that same book International Law by Oppenheim, the first volume Peace (published by Lauterpacht) in the eighth edition of the year 1955 - the same section in the same paragraph 147, on page 33. The beginning is the same but the continuation is different, and this is what he says: "The question is, therefore, whether States have a right to exercise jurisdiction over acts of foreigners committed in foreign countries, and whether the home State of such an alien has a duty to acquiesce in the latter's punishment in case he comes into the power of those States." The same sentence, so far. "Some answer this question in the negative." The Court should please note: "They assert that at the time such criminal acts are committed the perpetrators are neither under the territorial nor under the personal supremacy of the State concerned, and that a State can only require respect for its laws from such aliens as are permanently or transiently within its territory. This is probably the accurate view with regard to some cases. But it is not a view which, consistently with the practice of States and with common sense, can be rigidly adopted in all cases." If Lord Finlay had to deal today with the "Lotus" case and wanted to be guided by Oppenheim's classic work, he would at least have to consent with the opinion of the President and the other judges. Presiding Judge: I presume the eighth edition quotes the "Lotus" case? Attorney General: Yes. Since international law continues to develop, and this is its only hope. We should, therefore, not be surprised when we read the article, referred to by the Court, by Professor Lauterpacht who was the editor of the latter edition of Oppenheim, in his article in the Cambridge Law Journal of the year 1947, Volume 9, an article entitled "Allegiance, Diplomatic Protection and Criminal Jurisdiction over Aliens." The article begins on page 330, and I read on page 345: "There is international authority - in the Judgment of the Permanent Court of International Justice in the Lotus Case - in support of the extension, by reference to the place in effect, of the territorial principle. In that case the Court accepted as a valid proposition of law that 'it is certain that the courts of many countries, even of countries which have given their criminal legislation a strictly territorial character, interpret criminal law in the sense that offences, the authors of which at the moment of commission are in the territory of another State, are nevertheless to be regarded as having been committed in the national territory, if one of the constituent elements of the offence, and more especially its effects, have taken place there'." I have emphasized the words "its effects" because I shall still have something to say on the effect, on the conclusions and the consequences of the acts against the State of Israel, of which Adolf Eichmann has been accused. I shall conclude this portion of my argument with Lauterpacht's concluding observation, in the final words of that article, on page 348:- "It would be in accordance with an enlightened principle of justice - a principle which has not as yet become part of the law of nations - if, in the absence of effective extradition, the courts of a State were to assume jurisdiction over common crimes, by whomsoever and wherever committed, of a heinous nature. Territoriality of jurisdiction is a rule of convenience in the sphere of the law of evidence. It is not a requirement of justice or even a necessary postulate of the sovereignty of the State." Presiding Judge: How does the Law of Evidence enter into this matter? Attorney General: The Law of Evidence enters here, as the problem is: Where are the witnesses and where are the judges, where are the authorities, where would it be more convenient to conduct the trial? I shall continue my argument on this point when the Court resumes its sittings. (The session terminated at 13.00)
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