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Last-Modified: 1999/05/28

Presiding Judge:  When you spoke earlier about older sources
of international law, you mentioned in this connection
pirates, slave traders and white-slave traffickers. Is there
any specific reference to this in the sources?

Attorney General:  Not specifically. I shall come to this
presently. There are definitions of hostis humani generis.
There are definitions of people of whom, in biblical
language, it might have been said that they bore the mark of
Cain on their foreheads. But whereas in matters such as of
trafficking in women, narcotic drugs and so on there are,
generally speaking, international treaties which today
define the right of jurisdiction, in the case of pirates the
original principle of old times remains unchanged to this
very day; and it seems that even in the twentieth century
pirates still exist. For example in the judgment of the
House of Lords in re Piracy Jure Gentium (1934)4C, 586, it
is said on page 589:

     "With regard to crimes as defined by international law,
     that law has no means of trying or punishing them. The
     recognition of them as constituting crimes, and the
     trial and punishment of the criminals are left to the
     municipal law of each country."

The author of the article "The municipal and international
law basis of jurisdiction over war crimes" - (I say "the
author" of the article, since it is signed only with
initials - I can guess who he is, but as only the initials
appear, I do not want to rely on the author's name - they
are R. R. B.) -  which appears in the British Yearbook of
International Law 1951, states on page 392:

     "If a neutral state should, by reason of the
     availability of the accused, witnesses, and evidence be
     the most convenient locus in which to try a war crime,
     there is no reason why that state should not perform
     that function."

The State of Israel, Your Honours, considering the Holocaust
of the Jewish people, the availability of witnesses, brands
snatched from the fire, its institutes of research, source
material, the availability of a State Institution such as
Yad Vashem, which has a collection of historical material,
the existence of other research institutes for studying the
Holocaust - is a suitable place, also in accordance with
this principle, for trying a man accused of a crime such as

In a book published by the University of California by
Maurice Greenspan The Modern Law of Land Warfare, the
following appears on page 503:

     "Since each sovereign power stands in the position of
     guardian of international law, and is equally
     interested in upholding it, any state has the legal
     right to try war crimes, even though the crimes have
     been committed against the nationals of another power
     and in a conflict to which that state is not a party.
     It will be remembered, for example, that each of the
     four Geneva Conventions of 1949 provides that each
     party is under the obligation 'to search for persons
     alleged to have committed, or to have ordered to be
     committed' grave breaches of the conventions, 'and
     shall bring such persons regardless of their
     nationality, before its own courts. It may also, if it
     prefers and in accordance with the provisions of its
     own legislation, hand such persons over for trial to
     another High Contracting Party concerned, provided such
     High Contracting Party has made out a prima facie
     case.' This obligation applies not only to parties to a
     conflict, but also to neutrals. However, the state
     which has suffered the war crimes, or against whose
     nationals the crimes have been directed, usually
     undertakes the trial of the offenders, either alone or
     in association with allied states."
At the Assembly of the United Nations there is the Third
Committee which deals with Human Rights. In November 1960,
the Third Committee adopted a resolution in regard to
Article 15 of the Draft Convenant on Civil and Political
Rights and the supplement thereto. I shall submit to the
Court all the records of what jurists representing the
various countries had to say on that subject, and in the end
the resolution which was adopted confirmed Article 15 in the
following wording:

     "1. No one shall be guilty of any criminal offence on
     account of any act or omission which did not constitute
     a criminal offence under national or international law,
     at the time when it was committed...
     "2. Nothing in this article shall prejudice the trial
     and punishment of any person for any act or omission
     which at the time when it was committed, was criminal
     according to the general principles of law recognized
     by the community of nations."

Judge Halevi:  This belongs more to the previous part of
your argument.

Attorney General:  To some extent it belongs to the previous
part of my argument, but seeing that the subject here is
punishment in general and general principles, I deemed it
proper to submit it here, and the Court will find very
interesting material in the legal debate reported on ex post
facto, on the extraterritorial principle and on other
problems which arose before the Committee completed its
discussion and finalized this text.

We are told: Bring Adolf Eichmann before an international
court. What international Court? The International Court at
the Hague deals with disputes between state and state; it
has no criminal jurisdiction over individuals. The
International Military Tribunal which sat at Nuremberg
finished its work and no longer exists.

Presiding Judge:  I did not understand the argument to be
that there was such an international court which could deal
with the matter.

Attorney General:  I shall also come to this point. The
Court which sat in Tokyo and sentenced war criminals is also
no longer in existence. Hence what is the State of Israel
supposed to do? To request the United Nations Organization
to set up a Court? Already at Tokyo, at the time when there
were still the last remnants of a honeymoon between the
Great Powers, not inconsiderable difficulties were
encountered when the Court sat to try war crimes. Does
anyone suggest that this is a practical solution, that it is
possible today, regardless of the complications of the cold
war and all the international difficulties, to establish an
International Court? To whom shall we hand over Adolf
Eichmann? To the Poles? To the Hungarians? To the Czechs?

True, he transgressed against them all; but his first and
particular crime, the most heinous and obvious of them all,
was that against the Jewish people. The State of Israel
wanted the establishment of an international criminal court.
We made many attempts in our addresses before the United
Nations in the years 1951-1953 to have such a court
established. As a small country we have an interest in the
setting-up of a supreme criminal tribunal which can protect
the weak. I shall submit to the court the reports of the
Committee on International Criminal Jurisdiction 1951 and
1953 and the proposals of the Government of Israel on this

Presiding Judge:  Whose committee was this?

Attorney General:  A Committee of the United Nations.

Presiding Judge:  Attached to which body?

Attorney General:  To the General Assembly. And perhaps here
I may mention that my colleague for the Prosecution, Dr.
Robinson, was one of the most active members of that
committee for the establishment of an international criminal
Court. But it did not come into existence because the Great
Powers did not want it, and hence today there is no
international criminal tribunal. Accordingly, only one
country can try Adolf Eichmann, and that according to its
own domestic law.

Presiding Judge:  Concerning the matter which you have just
now mentioned, how did the discussion end? Did they come to
any conclusion at all?

Attorney General:  There is a report and there are
recommendations, and the matter has not yet been finalized
to this day.

Presiding Judge:  Is it still on the agenda at this time?

Attorney General:  It remains on the current agenda of the
United Nations General Assembly.

Dr. Servatius:  May I request copies of these two reports on
Human Rights and Criminal Jurisdiction?

Attorney General:  I hope it will be possible to obtain
additional copies from the Ministry for Foreign Affairs and
to pass them on to Dr. Servatius.

As the Court will be able to gather from a perusal of the
indictment, Adolf Eichmann is accused, first and foremost of
crimes against the Jewish people. The Jewish people does not
dwell in Israel alone; there are Jewish communities outside
the State, both large and small, protected by the laws of
other countries. But the only country in the world which is
a Jewish State, as it declared itself in its Declaration of
Independence, and as it was recognized by a resolution of
the United Nations, which has sovereign Jewish institutions
- is the State of Israel. The right of the Jewish people to
a national renaissance in its own country was proclaimed,
already, at the first Zionist Congress in 1897. In 1917 the
Balfour Declaration was issued favouring the establishment
of a Jewish National Home, and the Mandate over the country
which was given to Great Britain included that Declaration.
The historical connection between the Jewish people and the
Land of Israel is recognized according to the law of
nations. The National Home established here during the
period of British rule - was established for the sake of all
Jews, also for the sake of the millions who are no longer
living. And if there is any country which feels the
consequences of these crimes on its body and soul - it is
the State of Israel first and foremost. In it there was the
manpower, the faith and the inspiration for the Jewish
State. It existed as a State-on_the-way not only here; it
also existed in all those countries which were overtaken by
the Holocaust. And the Jews there waited for their State.

In the year 1936 a Royal Commission was established, known
as the "Peel Commission," which was required to recommend to
the Mandatory Power how to continue the British Mandate.
Before the Commission appeared the man who was then the
President of the World Zionist Organization and subsequently
the first President of the State of Israel - Dr. Chaim
Weizmann. I read from the Commission's Report, Palestine
Royal Commission: Minutes of Evidence heard at Public
Sessions, on page 32:

Presiding Judge:  That is not the report - only the minutes.

Attorney General:  I shall submit the report later. We are
discussing the Jewish problem...

Presiding Judge:  On what page are you reading?

Attorney General:  On page 32. Dr Weizmann was able to see
this as a national and economic problem. He spoke as if
endowed with a prophetic spirit, of six million souls who
were bound to go to their own country:

     "It is, if I may say so, a world problem of
     considerable importance. Naturally it is one which
     primarily affects the Jewish community and secondly
     affects the state of affairs in this particular part of
     the world which, since the war, has moved towards new
     forms of political and social life; at present not too
     strong - not too ripe, politically and not too strong
     economically. These six million people to whom I have
     referred are condemned to live from hand to mouth, they
     do not know today what is going to happen tomorrow - I
     am not speaking now of organized anti-Semitism, but
     assuming the host nations were quite friendly - but
     there are objective reasons, purely objective reasons,
     existing in those parts of the world which tend to
     grind down the Jewish community and make it into
     flotsam and jetsam of the world - grind it into atomic
     dust, so to speak. Though it is generally known that
     the position of the Jewish people is not very happy, I
     think it is too little appreciated what its misery is
     and that is why I have permitted myself to dwell on it
     at some length. After all, it affects the fate of six
     million people."

These are six million who were alive when Dr. Weizmann spoke
and on whose behalf he demanded a Jewish State. They are no
longer alive. Who else is there like us, who from the point
of view of experiencing the consequences of the Holocaust
can fill this awful void which has been left in the life of
the Jewish people; who else more than we ourselves, has the
right to sit in judgment in view of those consequences?

The Jewish community in Palestine, even in the pre-State
era, was the only one which, owing to its national
development, could establish a Jewish fighting unit in the
Second World War. This unit fought shoulder to shoulder with
hundreds of thousands of Jews in the other Allied armies.
But it was the only one that was able to fight under the
blue and white flag.

The establishment of a Jewish State in Palestine occupied
the thoughts of the world's statesmen already at the end of
the First World War. This is faithfully reflected in the
Peel Report. The Court will notice the evidence of Lloyd
George, who was Prime Minister at the time of the granting
of the Balfour Declaration. On page 24 of the Report, he

     "The idea was, and this was the interpretation put upon
     it at the time, that a Jewish State was not to be set
     up immediately by the Peace Treaty without reference to
     the wishes of the majority of the inhabitants. On the
     other hand, it was contemplated that when the time
     arrived for according representative institutions to
     Palestine, if the Jews had meanwhile responded to the
     opportunity afforded them by the idea of a national
     home and had become a definite majority of the
     inhabitants, then Palestine would thus become a Jewish

Ultimately, the supreme international body - the United
Nations General Assembly - also recognized the special
character of the Jewish community in Palestine and the right
of the Jewish people to its own State. And on 29 November
1947, the resolution was adopted calling for the
establishment of a Jewish State in part of Mandatory
Palestine. This resolution constituted an ex post facto
recognition of a fact which had previously been in existence
- the renewed territorial crystallization of the Jewish
people in the Land of Israel; a process which had begun many
years previously, which began with the return to Zion; and
in the Declaration of Independence the aspirations of
generations were realized.

It will cause no surprise that in the Luxembourg Agreement,
that Agreement of which Counsel for the Defence reminded us
yesterday, the Reparations Agreement - which appears in
Rashumot (Conventions and Agreements)*{3*United Nations
Treaty Series, vol. 162, p. 205} Vol. 37, the following
statement appears at the outset:

     "Whereas unspeakable criminal acts were perpetrated
     against the Jewish people during the National-Socialist
     regime of terror...Now therefore [the States] have
     It was the State of Israel that somehow one had to try
     to compensate for the indescribable criminal acts, or
     as it is said in English, the "unspeakable criminal
     acts perpetrated against the Jewish people."

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