Archive/File: people/e/eichmann.adolf/transcripts/Appeal/Appeal-Session-03-01 Last-Modified: 1999/06/15 20 Adar Bet (26 March 1962) President: Please proceed, Mr. Hausner. Attorney General: With the Court's permission, the next argument on the part of the Defence is that an Israeli Court has no jurisdiction to judge Adolf Eichmann, because he was brought here against his own free will. When someone is brought to trial under a valid law, the Court does not investigate how the person before it was brought there and it is not for the Court to consider whether this was of his own free will or not, whether he went to the police to atone for his crime, because his conscience was troubling him, or whether he was found by investigators who tracked him down and found him out. Nor is it a matter for the Court whether this was within the boundaries of the State or outside it. None of this affects the Court's competence. The method and legality of the individual's arrest are not matters to be investigated by the Court. In the District Court's Judgment, paragraphs 41 to 53 examine in great detail the various precedents concerning this matter, and I shall not go over this material again. I shall simply make a few comments. In addition to the leading American judgment, Ker v. Illinois, the District Court's Judgment also refers to two other American cases which relate to the matter before us. In the case of Pettibone vs. Nichols, 1906 51 L.Ed. 148, the appellant, Pettibone, argued that he had been arrested by the State of Idaho through trickery on the part of the Sheriff, and that he was brought to that state from the State of Colorado in an illegal fashion and as a result of deceit, and that he should not be considered to be present in the State of Idaho, because his presence there was not as a result of legal action. Justice Silberg: In which paragraph is this mentioned? Attorney General: It is mentioned as one of the general references, Your Honour. President: Only the name of the case is given, but what about the details? Attorney General: In Paragraph 46 only the name is given. The Court, following a series of other cases, ruled that there is no legal appeal under the laws of the United States and its Constitution which would prevent putting on trial a man who has transgressed the laws of the United States, even though he was brought before a court by an act of force. Furthermore, even if the circumstances in which he was brought to justice are likely to lead to the kidnappers themselves facing criminal charges or being liable in damages, even then this would not prevent an accused from being brought against his will before a court in the place where he is present. President: It seems to me that the last part of what you said is a citation from Ex parte Lopez, where Mexico was involved. Attorney General: That is correct. The Court added on page 215 in Pettibone v. Nichols: "It is said that the present case is distinguishable from the Mahon Case in the fact that the illegal abduction complained of in the latter was by persons who neither acted nor assumed to act under the authority of the state into the custody of whose authorities they delivered Mahon; whereas, in this case, it is alleged that Idaho secured the presence of Pettibone within its limits through a conspiracy on the part of its governor and other officers. This difference in the cases is not, we think, of any consequence as to the principle involved." Justice Agranat: Your last point, that even if the abductors committed an offence, that is taken into account in the Frisbie case, I believe. Attorney General: Yes, that is explicitly referred to - "kidnapping." Counsel for the Defence is not right when he argues that in all of the judgments on which the District Court relied the accused were already under arrest or in custody, from where they escaped and were forcibly returned in order to be tried in the state in which they committed the offence. That is not the case. The precedents do not in fact deal with individuals who escaped from custody, but rather with persons whose crimes were discovered when they were abroad, and who were brought from there against their will to the jurisdiction of the Court. I wish to emphasise this point, in order to prevent any misunderstanding of the term "fugitive from justice." In another case, also referred to by the District Court but not elaborated on - and I am referring to United States v. Insull, 8 Federal Supplement 310 - the facts were as follows: An American subject, sailing the Bosporus on a Greek ship, was forcibly abducted and taken to Turkey, where he was imprisoned and, in the absence of any arrest warrant from the judicial authorities, handed over to the American authorities. He was then tried in the United States. Although his arrest by the Turkish police was carried out following an application from the United States Government, there was no extradition treaty. The accused was put on trial simply because he was physically present in the United States at the time that he was brought to justice. It was argued that in this way the rights of the abducted man were infringed, together with those of the two foreign countries: Greece, from the deck of whose ship he was removed, and Turkey, from whose soil he was transferred to the United States. The American court utterly rejected this argument, ruling that it would not examine in depth the issue of how the accused had been brought before it. It states on page 312: "The defendant contends that a treaty is involved, and that the government of the United States of America cannot enter the jurisdiction of a sovereign nation with which it had a treaty governing the extradition of fugitives from justice, and, without pretending to comply with the proceeding provided for in such treaty, by its agents forcibly seize an alleged fugitive, and by force and without the consent of such alleged fugitive bring him into the jurisdiction of a District Court of the United States of America for trial." And on page 313: "If the rights of the defendant have been violated, or the peace or dignity of the Hellenic Republic or Turkey trespassed upon, that is not a matter for this court, even assuming that the offense for which the defendant stands charged is not within the treaty, if one existed, between the countries; and the mere fact, if true, as stated by defendant, that he was kidnapped from the Hellenic authorities, would not give this court power to examine such fact, and, if true, release the defendant. The court has no such power. That is a matter which rests between the defendant and the parties abducting him, or between the political powers of the governments of Turkey or the Hellenic Republic and that of the United States. "If either the Hellenic Republic or Turkey, by proper complaint, sought to vindicate its laws by protesting against the kidnapping of this defendant within its territory, it is reasonable to assume that the United States would enter into such negotiations with those countries as would secure justice for all parties concerned." This is true also in the case before us. The Government of Israel entered into negotiations with the Argentinian Government, from whose territory the Accused was removed, and after a discussion there was an exchange of Notes, as cited in the Judgment. Consequently, not only did the Argentinian Government accept the situation - at least by implication, it also dropped any complaint it might have had in this particular matter. President: Mr. Hausner, two cases are cited in the Judgment, one of which is Chandler, which seems to serve as an authority for there being no difference between a fugitive from justice and an individual who is not a fugitive. What were the facts in that case? In the Judgment it is implied that Chandler is an authority for there being no difference between a fugitive from justice and someone who is not a fugitive. Is this really an authority? Attorney General: To some extent. Chandler was an American who was led astray by Nazi propaganda and moved to Germany, where he was active on behalf of the Nazis; he was imprisoned by the United States military authorities and brought to America for trial. It is not correct that the Accused is entitled to be tried by a German judge specifically. He is a fugitive from justice and is on the list of war criminals drawn up by the International War Crimes Commission. He went into hiding in Argentina and lived there under an assumed name. Now that he has been brought to justice, to some form of justice, he remembers that he would prefer to be tried by a judge of his choice, a zustaendiger Richter (competent judge). It is not true that he took with him to Argentina the right to be tried by a German judge, of all judges. There is no such right in international law. Any one of the states in which he committed his crimes, any of the peoples whom he harmed, is entitled to demand his extradition, and any state which is a member of the United Nations and which is faithful to its undertaking under the U.N. Assembly Resolution, was duty_bound to extradite him. He is to be tried as a fugitive from justice. This is true according to the laws of 18 states, each of which is entitled to try him, from all of whose laws he has fled and hidden. But no state is more competent to try Adolf Eichmann than the State of Israel; because he did not persecute the Jews who were citizens of Poland, Holland, Hungary, Denmark, France, Belgium, the Soviet Union and a dozen other countries as subjects of those countries - he persecuted them as Jews. He was not fighting on a front against all these individual countries, but rather he was fighting on one single front, the anti-Jewish front. The jurisdiction of the Jewish State to try him is well-founded in law, and this jurisdiction is not limited under international law, as argued by Counsel for the Defence. The obligations created by international law and the severity which the law directs against individuals in respect of crimes against humanity, war crimes, crimes against peace, were not accompanied by any right to be judged by judges chosen by the offender. They were accompanied by one right: for the person to be put on trial and not be destroyed like a wild animal, wherever he happens to be. That was Adolf Eichmann's only right, to have a fair trial and to be judged according to judicial principles. The State has conferred this right on him without qualification. It should also be noted that in the debate held in the Security Council, when it became known publicly that Israel was holding Adolf Eichmann and would be putting him on trial before its courts, Argentina did not at that point demand Eichmann's return, and its representative refused to define the term "appropriate reparation" which was included in the Security Council's decision on this matter. We have here, available for the Court's inspection, the official versions of the Security Council resolution and the United Nations debates. Justice Silberg: I believe this is cited in the Judgment. Attorney General: Not everything, only briefly. I would also wish to add that the United States representative added that the actual debate and Israel's apology were the appropriate reparation for Argentina, and therefore he said that he would be voting in favour of the resolution, and he was joined by the United Kingdom representative. There is no conflict of authority between the State of Israel and any other State on the right to try Eichmann, and there was no such conflict when the indictment against him was submitted. No state applied to try him apart from the State of Israel, which wished and was entitled to do so. No one asked for his extradition nor did any state, including the state in the shadow whose laws he is trying to seek refuge - I am referring to West Germany - apply to try him for his crimes. Consequently, I would request that no consideration be paid to the groundless argument concerning an application to a German administrative court, which is intended solely to obtain some delay or postponement. Nor is there any need to hear expert witnesses on any alleged additional demands on the part of Argentina. There are no such demands. Under international law, the outcome of the exchange of Notes is complete acceptance of the resultant situation. In this respect, I would draw the Court's attention to the article by MacGibbon in The British Year Book of International Law, 1954, entitled "The Scope of Acquiescence in International Law," pp. 143 ff. Counsel for the Defence made certain points and objections concerning the law of evidence and procedural arguments. I shall deal with this briefly. All of the material in our possession was made available to the Defence. Not one single piece of evidence, not one single witness, came before the Court without the Defence being given reasonable prior notice, as we are required to do under Israel's laws. The Accused was given every opportunity to examine fully all documents and to react to them before they were submitted. The exhibits submitted by the Accused include dozens with which we provided him, because they were collected during the phase of the police investigation and then submitted by the Defence. The witnesses and the documents are to be found in Israel, and are present in Israel in larger number than anywhere else. This was a marked feature of the trial - that there was a number of living witnesses who testified about the Holocaust on the basis of what their own eyes had seen, what their own ears had heard, what they had personally experienced and suffered. These witnesses are here in Israel, and the courts which try war crimes in other countries, including Germany, need witnesses who live in Israel. This is where the document centres are to be found, above all the major Yad Vashem collection, which contains important material. The witnesses who were examined abroad were not examined after pressure was put on me, as was argued by Counsel for the Defence, but rather at my suggestion. President: I do not exactly understand your last point. Attorney General: Counsel for the Defence claimed that it was only when I had no choice that I agreed that some witnesses should be examined abroad. I argue that this is not true. At the beginning of the trial, it was my suggestion that we should act in this way and adopt this procedure. I have no control over the procedure followed by the judge in Bremen, and if Counsel for the Defence has complaints about this procedure, apparently this is the custom in that country. President: In relation to which witnesses are the comments made? Attorney General: Becher, who received the questions in advance. President: But as far as I am aware, Becher is not mentioned in the Judgment. Attorney General: Even if he is mentioned, his testimony provides no basis for any finding whatsoever. Justice Silberg: I gather that Counsel for the Defence wishes to take advantage of this point. If it has any value, it is for Counsel for the Defence only. Attorney General: If the Court were to believe and to rule that one of the witnesses was lying, and if this witness had said something to the Accused's advantage, then a complaint would be justified, because the Court cannot decide, not having seen the witness, not having heard him and not having gained a direct impression of him. But this was not the situation here, there was no one who was prepared to support the "little transport clerk" version, the argument of "a small cog who is somewhere in the distance, on the margins of the extermination activities." And therefore no injury whatsoever was caused to the Accused by the fact that the witnesses testified there and not here. And if indeed they wished - as Counsel for the Defence argues - to shift the guilt and exonerate themselves, it might be assumed that this would have become more obvious in an examination before a Court in Jerusalem than in Germany with in camera proceedings in the seclusion of a judge's chambers in the absence of the press and the public. If they had really wanted to play down their own contribution and to assign the guilt elsewhere, precisely this would have become very clear here. And in this sense it helped the Defence that the witnesses testified there, and any desire on their part to evade guilt and shift it to others, were it to exist, would be likely to be less evident.
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