The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 1999/06/09

             Written submissions of the defence

(A) as to the penal jurisdiction of the State of Israel (p.1 ff)

(B) as to the question nullum crimen, nulla poena sine lege
stricta et previa (p.77 ff).

11 April 1961

(-) Dr. Servatius

On 11 May 1960, Adolf Eichmann was apprehended in Argentine,
where he lived under an assumed name, by members of the
Israeli security service. By administering him coffee to
which a drug had been added, Eichmann was put into a semi-
conscious state, brought into a chartered plane as a
"sleeping patient" and in this way abducted to Israel[1].
On the morning of 23 May 1960 a magistrate[2] issued a
warrant of arrest pending investigation. Since that date
Eichmann has been under arrest pending investigation. The
"Notice of Charge" was served upon the counsel for
Eichmann's defence on 1 February 1961.

On 21 February 1961, the Attorney General, Israel, filed in
the District Court of Jerusalem an indictment against
Eichmann. The indictment is based upon the Israeli Nazis and
Nazi Collaborators (Punishment) Law, 5710-1950,[3] in
connection with section (2) of the Criminal Code Ordinance,
In four counts of the writ of indictment the Accused is
charged with crimes against the Jewish People (counts 1, 2,
3, 4).

In seven counts of the writ of indictment (counts 5, 6, 7,
9, 10, 11, 12) the Accused is charged with commission of
crimes against humanity.

In count 8 of the writ of indictment the Accused is charged
with the commission of war crimes.

In three counts of the writ of indictment the Accused is
charged with membership in an enemy organization (counts 13,
14 15).

The imminent criminal proceedings in the District Court,
Jerusalem, raise a number of questions referring to criminal
international law, two of which, above all, will be singled
out in this context:

1. The question whether an Israeli court in its capacity as
a municipal court has jurisdiction over Eichmann;

2. The question of the meaning "nullum crimen, nulla poena
sine lege stricta et previa" in the pending proceedings.

Part 1: The question of the jurisdiction of an Israeli court
over the Accused Eichmann;

     A: Criminal jurisdiction over foreigners according to
     the existing Israeli law;

     I. The general arrangement in the Criminal Code
     Ordinance, 1936.

     1. The relevant legal provisions are laid down in
     Chapter III, sections 6 and 7.

According to section 6, the jurisdiction of Israeli courts
over criminal offences for the purpose of the "Criminal Code
Ordinance 1936" extends to the territory of Israel as well
as to any place within three nautical miles of the coast.

Strictly speaking, sec. 7 does not constitute an extension
of the principle. Its purpose is to clarify the
applicability of the principle of territoriality - which has
been neatly defined in sec. 6 - on such facts which occur
partly within, but partly also outside Israeli jurisdiction
as defined in sec. 6.

2. The provisions regulating generally the subject of
jurisdiction in Israeli law are therefore characterized by
strong emphasis given to the principle of territoriality.

No objections stemming from the rules of criminal
international law are voiced against finding a solution to
the problem of jurisdiction exclusively on the basis of the
territorial principle. On the contrary: the principle of
territorial jurisdiction can be described almost as a basic

rule of criminal international law[4].  For a long time, in
Anglo-American jurisdictions, particular emphasis is placed
on the basic character of this principle and its priority
with respect to any other principle[5]; the provisions made
in sec. 6 and 7 are therefore precisely in line with the
traditional legal conceptions prevailing in Anglo-American
jurisdictions as to the question of the jurisdiction of a
municipal court over foreigners - a fact which is not
particularly surprising in view of the origin of the
Criminal Code Ordinance (former Mandatory Law; see also the
provision for its interpretation in sec. 4 which prescribes
that in case of doubt interpretation has to be carried out
in accordance with the principles of interpretation
obtaining in England and with English legal terms).

II. Deviation from the territorial principle in the Penal
Law Revision (Offences committed abroad) Law, 5716-1955.

1. Sec. 2 of the aforesaid law - which is relevant in this
context - results in a number of deviations from the
territorial principle framed more strictly in the Criminal
Code Ordinance, in respect of foreigners and of offences
committed by them abroad.

According to this provision Israel has jurisdiction over
foreigners in respect to the following offences:

1) Offences against the "Flag and Emblem Law, 5709 - 1949";

2) Offences against the "State Seal Law, 5710 - 1949";

3) Offences against the "Official Secrets Ordinance";

4) Offences against secs. 49 to 62 of the "Criminal Code
Ordinance" (which contain the provisions concerning the
security of the State).

2. These deviations from the territorial principle are
characterized by its strict limitation to the subject of
certain categories of offences.  Moreover these deviations
are unobjectionable, according to the standards of
international criminal law, being entirely within the limits
of exceptions which are considered by many nations as

(a) Deviations from the territorial principle in favour of
the real or protective principle, where the security of the
State and the existence of its constitution are under
attack, are not prohibited, at any rate, by international
law[6].  The "Draft Convention on Jurisdiction with Respect
to Crime" with which the Harvard Research of 1935,[7] opens,
is also based on the protective principle, in its art. 7,
when a crime is committed by an alien abroad against the
"security, territorial integrity or political independence"
of a state.

The deviations mentioned above in (3) and (4) can therefore
be described as exceptions - which at any rate are not
prohibited by international law from the territorial
principle in favour of the protective principle.

However, in this context, it should be mentioned that in
Anglo-American jurisdiction exceptions from the territorial
principle even in favour of the protective principle have
always been treated with the utmost reserve.[8].  Thus
Salmond[9] in describing the position under English law,
arrives at the conclusion that English criminal law admits
exceptions from the territorial principle  in respect of
acts of piracy, treason, murder and bigamy, adding however
the important restriction of "committed by British[10]
subjects in any part of the world." In no way has it escaped
Salmond's attention that recently English decisions have
admitted an exception even from that principle; he mentions
the case of Rex v. Joyce[11].  However, at the same time,
Salmond emphasizes the exceptional character of this
decision which he justifies by the "peculiar
circumstances"[12] of this case. This was the case of
William Joyce, an American citizen who had obtained the
issue of a British passport under false pretences, the
validity of which had been extended several times and for
the last time, up to 1 July 1940. During the War Joyce had
carried on propaganda against England from German
broadcasting stations. When he was arrested in Germany in
1955, his English passport was no longer found to be in his

The legal question to be determined by the House of Lords in
the last resort, was

     "whether an alien who had been resident within the
     realm can be held guilty and convicted in this country
     of high treason in respect of acts committed by him
     outside the realm."[14]

It is remarkable in this wording of the legal question that
to a certain extent it relates to the territorial principle,
by establishing the fact that the Accused "has been resident
within the realm" - a finding which is completely irrelevant
if the case is to be decided only on the basis of the
protective principle. It serves also as evidence of the
restrictive tendency when admitting exceptions from the
territorial principle, that the court of first instance has
based its decision upon the alleged British nationality, an
allegation which could not be maintained in the court of
appellate jurisdiction. In other words: The court of first
instance tried to remain within the limits of the exception
generally recognized in England in cases of high treason
(deviation from the territorial principle in favour of the
protective principle only in conjunction with the active
personality principle, that is to say: jurisdiction only
over British citizens.)

But even when the assumption that Joyce was a British
citizen could not be maintained anymore in the court of
appellate jurisdiction, did the House of Lords not exceed
the narrow limits of an exception (which have just been
described) when convicting the Accused?  The court based its
conviction upon the active personality principle. It held
that, although Joyce had not been a British citizen,
nevertheless the possession of a British passport had given
rise to duties of allegiance owed by him to the King and he
had transgressed these duties by his broadcasting activity
in Germany.

The result to be arrived at from the aforesaid, is therefore
that in English law the priority of the territorial
principle is unchallenged, that - even in exceptional
political cases - English decisions have admitted exceptions
in favour of the protective principle only to a very limited
extent, namely only insofar as these exceptions can be
justified by the active personality principle.[15]

(b) There are no provisions in international law of a
prohibitive nature which might constitute an obstacle to the
deviation from the territorial principle in favour of the
principle of world law (universality principle) as limited
in regard to its subject matter.[16]

The extension of Israeli jurisdiction over aliens in respect
of offences against the "Flag and the Emblem Law"[17] and
the "State Seal Law" might be attributed to the protective
principle, as limited in regard to its subject matter.

The prosecution of the imitation of state seals according to
the universality principle is in conformity with
international law[18]
The conclusion is that Israeli legislation, when deviating
from the territorial principle in favour of the universality
principle has not exceeded the limits of customary rules,
the prosecution of which, in accordance with the
universality principle, is generally recognized.

III. Deviations from the territoriality principle in the
Nazis and Nazi Collaborators (Punishment Law, 5710-1950.

The examinations made so far have shown that the
international criminal law of Israel is based generally upon
rules distinguished by their most meticulous adhesion to the
territorial principle, and that exceptions from this
principle are admitted, in favour of the protective or the
universality principle, only to a very limited extent.

This basic character of the Israeli legal system - which is
therefore in conformity with the Anglo-American legal
tradition - has to be remembered, when examining the
question how the question of Israeli criminal jurisdiction
over aliens is dealt with in the "Nazis and Nazi
Collaborators (Punishment) Law."  Only then will the
observer become aware of the whole extent of the total
departure - in this law - from all the principles prevailing
in the general Israeli criminal law regarding jurisdiction
over offences committed abroad by aliens.  Already in
dealing with this question and its solution the nature of
this law becomes apparent as that of a typical exceptional
law, and the following detailed examination will demonstrate
that in so defining this law, no hasty generalizing view is
taken. No doubt the purpose of the "Nazis and Nazi
Collaborators (Punishment) Law" is to establish a basis for
the punishment of offences which, in view of the criminal
energy of the perpetrators, the extent of the harm done,
their contents of criminality and guilt, exceed the limits
of "normal" criminal behaviour to such an extent that they
can be called only "exceptional offences." However, whether
this exceptional character of the offences legally justifies
the adoption of an exceptional law in order to enable the
persecution of these offences, whether such an exceptional
law will further the re-establishment, the safeguard and the
preservation of law and justice - this question can for the
time being only be raised without as yet attempting to
answer it.

As to the details of the matter, the following statements
have to be made:

1. The "Nazis and Nazi Collaborators (Punishment) Law"
provides for punishment and Israeli jurisdiction regardless
of the question, whether the offence has been committed on
Israeli territory; moreover, it does not provide for any
territorial restriction, as e.g. that Israel has
jurisdiction only over such offences which have been
committed within the former British Mandatory territory of
Palestine. Formally, the only territorial restriction is
provided for by the adoption of the term "in enemy
country."[19]  However, this "restriction" is not to be
misunderstood, by any means, as a deference to the
territorial principle. It results in a territorial
restriction only insofar as Israeli jurisdiction in respect
to the offences defined by the law is not claimed totally
without taking into account the place where the offence has
been committed. For according to the definition in sec. 16
"enemy country" means:

(a) Germany during the period of the Nazi Regime;

(b) any other Axis state during the period of the war
between it and the Allied Powers;

(c) any territory which, during the whole or part of the
period of the Nazi Regime, was de facto under German rule,
for the time during which it was de facto under German rule
as aforesaid;

(d) any territory which was de facto under the rule of any
other Axis state, during the whole or part of the period of
the war between it and the Allied Powers, for the time
during which that territory was de facto under the rule of
that Axis state as aforesaid.

Already in this context an additional particular feature of
this provision has to be mentioned, namely that the term
"enemy" is used, although no state of war had existed -
neither between Germany nor any other "Axis state" - and
Israel which had not yet come into existence as a State at
the time of the Second World War.

2. For the existence of Israeli criminal jurisdiction, the
nationality of the person having committed punishable
offences is deemed to be irrelevant according to the law in

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