Archive/File: people/e/eichmann.adolf/transcripts/Sessions/Session-003-03 Last-Modified: 1999/05/28 And on page 17, in paragraph 13 of the judgment, he states: "As far as the question of the incorporation of the principles of international law in the national law is concerned, we adhere to the words of Blackstone in his Commentaries on the Laws of England. And this is what Blackstone says (Book 14, Chapter Five) - here I quote in English: "...In England...the law of nations...is...adopted in its full extent by the common law, and is held to be a part of the law of the land. And those Acts of Parliament which have from time to time been made to enforce this universal law... are not to be considered as introductive to any new rule but merely as declaratory of the old fundamental constitutions of the kingdom without which it must cease to be part of the civilized world'." Presiding Judge: What page is this? Attorney General: This is on page 17. This is the end of the quotation from "Blackstone." And the late Justice Heshin continues: "This is the position also in other countries, such as the United States of America, France, Belgium and Switzerland where the usages of international law have been recognized to be part of the national law, even though some of them uphold the principle of the territorial jurisdiction of their own Courts." Presiding Judge: Was this the judgment of the Court, or was it the opinion of Justice Heshin? Attorney General: This was the majority opinion - Judge Witkon concurred with Justice Heshin, while Justice Goitein gave a dissenting judgment. I quote from page 17: "But in addition to everything that has been said, it seems to me that even if we cannot be assisted by Article 46 of the Order-in-Council and by Article 1 of the aforementioned English Act of 1849, we still have to decide that the said principle has become part of the laws of this country by virtue of Israel being a sovereign country and standing on its own authority. The Declaration of Independence procured for the new State access to international laws and practices which all states enjoy by virtue of their sovereignty, and enriched its legal system by the accepted principles of the Law of Nations. We are no longer obliged to obtain these principles second-hand, through subsidiary channels which have been specially provided, since today we are able by virtue of the State of Israel's being a member of the family of nations, to draw directly from the sources by virtue of the final passage of Section 11 of the Administration and Law Ordinance, or even without this paragraph and without any connection with it. The State of Israel sends its fleet of ships to the high seas under its own flag. The people who are on board these ships are protected by its flag and enjoy its law and its jurisdiction. For these reasons, I do not see anything to prevent the Courts from interpreting their competence so as to include all persons found on these ships and to try them according to its laws, just as any other civilized country would do in regard to ships flying its flag and in regard to the people aboard them." Parenthetically, I would note that in countries of the common law the principle has nevertheless been laid down that where a contradiction can been seen to exist between the provisions of domestic law and the provisions of international law, the domestic law would prevail. I say this only to complete the argument, since in my view there is no conflict, and therefore there is no necessity at all to include this principle. But if there were such - then the domestic law would prevail. And this is what Dicey says, in his tenth edition. Presiding Judge: What is the book? Attorney General: Dicey - The Law of the Constitution - on page 62. Presiding Judge: Which edition? Attorney General: The tenth, Sir. "Acts of Parliament, it has been asserted, are invalid if they are opposed to the principles of morality or to the doctrines of international law. Parliament, it is in effect asserted, cannot make law opposed to the dictates of private and public morality...There is no legal basis for the theory that judges, as exponents of morality may overrule Acts of Parliament. Language which might seem to imply this amounts in reality to nothing more than the assertion that the judges, when attempting to ascertain what is the meaning to be affixed to an Act of Parliament, will presume that Parliament did not intend to violate the ordinary rules of morality, or the principles of international law, and will therefore, whenever possible, give such an interpretation to a statutory enactment as may be consistent with the doctrines both of private and of international morality. A modern judge would never listen to a barrister who argued that an Act of Parliament was invalid because it was immoral, or because it went beyond the limits of Parliamentary authority." Judge Halevi: In English law, and in the common law - and therefore also in Israeli law, this principle such as that of "unrichtiges Recht" to which you previously referred, is not accepted. Attorney General: No Sir, it is not accepted. But I referred to it in another context altogether. If I did not explain myself properly, perhaps I should do so again. My intention, in regard to "unrichtiges Recht" was that it was essential for civilized peoples to fill that void, to bridge the Nazi anarchy. The answer of international law to the state of anarchy was: what you at the time called laws, were not laws but arbitrary acts. And therefore, from the year 1945 onwards, we are going to fill retroactively that vacuum which you created when you brought the principles of law down from their elevated status as signposts for all mankind and decreed arbitrariness as the sole principle for your actions. And international law says: A law which is an "unrichtiges Recht" is no law and must not be taken into account when international law comes to fill the vacuum which was created by arbitrary and atrocious acts. In Criminal Appeal 5/51, Steinberg versus the Attorney General, Piskei Din Volume 5, page 1061, at the foot of page 1065, Justice Sussman observes as follows: "It is a well-known rule that in interpreting a law the Court will endeavour as far as possible to avoid a clash with national law and the rules of international law which are binding on the State, but this is only one of the laws of interpretation. For when we deal not with the common law but with the statute law and where the intention of the legislator becomes clear from the wording of that law, in such a case the will of the legislator must be implemented without taking into account a conflict between that law and international law. Possibly international law imposes a certain obligation upon the State, but seeing that this law does not deal with the relations between the State and its citizens, but with its relations with other States, this obligation is imposed only for the benefit of another State or States, whereas the citizen himself has no right to demand that it be carried out. Moreover the courts of this country derive their judicial powers from the laws of the State and not from the system of international law. Consequently when a person is called upon to account for a breach of one of the laws of the State, he cannot find any defence in international law, since the courts only pronounce judgment on relations between the individual and the State according to the local law." But, Your Honours, I do not call upon you to rely on this rule, seeing that there is no need for it. The Nazis and Nazi Collaborators (Punishment) Law is nothing more than a repetition of an Israeli version, in the light of the special tragic version concerning the Jewish people, of those principles which are firmly entrenched in general international law. In Criminal Appeal 22/52, Honigman versus Attorney General, the late Justice Heshin discussed this law we are dealing with. The report is to be found in Piskei Din Volume 7 on page 296, and I read from page 303 opposite the letter e: "The Law we are examining" is intended to enable the punishment in Israel of Nazis, their associates and their collaborators, for the murder, destruction and exploitation of the Jewish people, and for their crimes against humanity in general." In these terms the bill was described and we quote these words from that source, not as a binding legal authority, but in order to explain the background to the legislation. And, indeed, this Law is absolutely different in its characteristics, its legal principles and the moral principles of its fundamental terms, and its spirit, from all the usual enactments to be found in the criminal statute book. This Law is retroactive and extraterritorial, and is intended - inter alia - to serve as an authority for punishing crimes which are not defined in the criminal law of Israel, since they are the special outcome of the Nazi reign of persecution, such as the handing over of a persecuted person to a hostile regime. Its severity is greater than that of other laws. It provides the Courts with the authority to try, for a second time in Israel, persons who have already been brought to trial once abroad, for the crimes mentioned in the Law, if the full severity of the punishment had not been meted out to them. The normal rules of prescription have been completely abolished in connection with the grave crimes mentioned in this Law, and in regard to the other, lighter offences, the usual period of prescription has been prolonged. And even these lighter offences have been excluded from the scope of general pardon. Special authority is given to the Courts to deviate from the rules of evidence. What is the reason for all these severe provisions? There is only one answer to this: the circumstances in which these crimes were perpetrated are extraordinary, and hence it is right and proper that the Law, its contents, the manner of applying it, the objective which the state seeks to achieve by means thereof, all these, too, should be exceptional. In his argument yesterday, Defence Counsel analysed what seemed to him to be the objectives of our law, and if I understand him correctly he argued that if there were room for talking about expiation on the part of the Accused, it would be proper to try him in Germany or some other country. He added that the Accused as an individual could not expiate the acts of his State which sent him to commit the crimes. The Accused, so Defence Counsel contends, was dragged, without any guilt on his part, into the criminal network. This last argument would require proof, and it is still premature to discuss it. For my part I can already say at this point that we contend that Adolf Eichmann was not merely a small cog in the machine, and we shall attempt to prove to the Court that he initiated, planned, organized and carried out the extermination of the Jewish people in Europe. I agree that this is a factual argument which at the present moment is a matter of dispute between Defence Counsel and myself. I have not yet proved this, but he, too, has not yet substantiated his argument, and consequently the Court cannot rely on this factual argument for purposes of this preliminary discussion. As for expiation: there does not stand on trial before you a repentant transgressor on his way to Canossa in order to atone for moral offences. There stands on trial a man who is accused of having committed crimes, and his individual responsibility for his crimes was recognized in principle when other war criminals were sentenced at Nuremberg and in other countries of the world. In the judgment of the International Military Tribunal - I read this time from Volume 22 of the Blue Series in the English edition - Presiding Judge: Why are you not consistent in this matter and do not quote from the first volume? Attorney General: This secret I can explain easily - the books were left during the night in this locked courtroom and when I had to prepare my authorities for this morning, I needed this judgment for my purpose, and it is found in both volumes. I quote from page 465: "It was submitted that international law is concerned with the actions of sovereign states and provides no punishment for individuals; and further, that where the act in question is an act of state, those who carry it out are not personally responsible, but are protected by the doctrine of the sovereignty of the state. In the opinion of the Tribunal, both these submissions must be rejected. That international law imposes duties and liabilities upon individuals as well as upon states has long been recognized. In the recent case of Ex parte Quirin (1942-317, US-1), before the Supreme Court of the United States, persons were charged during the War with landing in the United States for purposes of spying and sabotage. The late Chief Justice Stone, speaking for the Court, said: 'From the very beginning of its history this Court has applied the law of war as including that part of the law of nations which prescribes for the conduct of war, the status, rights and duties of enemy nations as well as enemy individuals.' He went on to give a list of cases tried by the courts, where individual offenders were charged with offences against the laws of nations, and particularly the laws of war. Many other authorities could be cited, but enough has been said to show that individuals can be punished for violations of international law. Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced. The principle of international law which, under certain circumstances, protects the representatives of a state, cannot be applied to acts which are condemned as criminal by international law. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings. Article 7 of the Charter expressly declares: 'The official position of defendants, whether as heads of state, or responsible officials in government departments, shall not be considered as freeing them from responsibility, or mitigating punishment'." And here follows an important paragraph: "On the other hand the very essence of the Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual state. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state, if the state in authorizing action moves outside its competence under international law." And on page 496 and subsequent pages, where the International Military Tribunal was dealing with crimes against humanity and with war crimes, the Court will find the following extract (I read from page 407 - the Chapter begins on page 496): "The Tribunal is of course bound by the Charter, in the definition which it gives both to War Crimes and Crimes against Humanity. With respect to War Crimes, however, as had already been pointed out, the crimes defined by Article 6, section (b) of the Charter were already recognized as War Crimes under international law. They were covered by Articles 46, 50, 52 and 56 of the Hague Convention of 1907, and Articles 2, 3, 4, 46 and 51 of the Geneva Convention of 1929. That violations of these provisions constituted crimes for which the guilty individuals were punishable is too well settled to admit of argument." And in the "Justice Case" (Green Series Vol. 3 on page 968) it says: "The IMT Charter, the IMT judgment and C.C. Law 10 are merely 'great new cases in the book of international law.' They constitute authoritative recognition of principles of individual penal responsibility in international affairs..." There was another statement in Defence Counsel's speech regarding expiation which calls for a reply from me. If I understood him correctly, he said: Germany has in fact already atoned. You have received reparations. What more do you want? I want to stress with all the emphasis at my command that the Reparations Agreement did not seek to atone, did not seek to cause us to forgive or to forget. For such crimes there is no expiation, there is no forgiveness or forgetting. We can only hope and believe that the new generation will be different from the fathers and that future generations will arise and that the sons will not pay for the sins of their forbears. But for those who perpetrated the crimes - there can be no pardon, no forgiveness, no atonement for them. The Jewish people remembers for over two thousand years someone who once tried to commit genocide, possibly for the first time in history - Haman the Agagite. It will never forget the one who succeeded partly, in committing this crime. Presiding Judge: How much time, in your estimation, do you still need for argument? Attorney General: I do not want to commit myself, but in order to give the Court some idea, I think I shall need all day. Presiding Judge: All day? And do you think that will be sufficient? Attorney General: Perhaps, Sir, seeing that we shall not be sitting tomorrow, I shall possibly need another hour only, on Friday morning in order to reply to some of the written arguments after we have managed to examine them. Presiding Judge: Apart from this - all day today? Attorney General: Yes. Presiding Judge: We shall adjourn now for a quarter of an hour or twenty minutes. Presiding Judge: Are the witnesses Tohar and Shimoni in or near the courtroom? If so, please call them. [The witnesses Tohar and Shimoni enter the Court.] Presiding Judge: Mr. Tohar and Mr. Shimoni, I want to inform you that you are free until Monday morning of next week. From Monday onwards, you will be at the Court's disposal upon telephonic advice to be given to you three hours in advance. Please give your telephone numbers to the Clerk of the Court. Meanwhile you are discharged.
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