The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of Adolf Eichmann
Defence Submission 1
(Part 5 of 8)

Adolf Eichmann, Eichmann trial, holocaust, Jewish holocaust
(c)However, in order to avoid the misunderstanding as if the territorial principle amounted only to a widespread principle of international law, we may quote - instead of other authorities - only the view of one of the most important scholars of international law, the Frenchman Donnedieu de Vabres:
"S'il est un principle de droit penal international qui soit au-dessus des discussions, consacre qu'il est par une tradition venerable et par des avantages certains, c'est celui du principe de la primaute de la loi territoriale."[106]
The "Draft Convention on Jurisdiction with Respect to Crime", dated 1935, is also in conformity with the precedence of the territorial principle in respect of all other possible bases of jurisdiction over foreigners - by proposing in art. 3 - also by way of systematic legal arrangement - the territorial principle as point of departure and basic rule in the question of national jurisdiction over foreigners.[107]

However, the territorial principle has also quite definitely a purpose in the area of practice and procedure.[108] Already in 1928, Donnedieu de Vabres had asked[109] to regulate international criminal law so as to warrant as completely as possible the elucidation of truth, the punishment of the guilty and the acquittal of the innocent. These claims are best met by the territorial principle; for only in proceedings respecting this principle is it possible to compel, in case of need, the appearance of witnesses by applying compulsory measures of the State. Outside the territorial principle, there are no such means of compulsion aimed at the elucidation of truth and the realization of justice. No state has the legal means to cause foreign witnesses outside its territory to appear in one of its tribunals and to give evidence. The present State Attorney of the Land Hessen, Fritz Bauer, reports in a book[110] written by him already before the end of the War, when he was an emigre in Sweden, what happened during the so-called Leipzig trials of war criminals in 1921; it is of interest in this connection:

"It was also most difficult to get hold of the witnesses, as most of them were living in the territories of the Allied Powers and many of them refused to enter German territory or to give evidence in Leipzig, notwithstanding the safeguards given by the German government."
This objection in the area of practice and procedure exists to a far greater extent in respect of the trial of Eichmann in Israel; for according to a statement made in the Parliament of Israel by the Minister of Justice of Israel, Rosen, witnesses prepared to give evidence in the imminent trial in favour of the Accused Eichmann could not expect to be granted immunity.[111] If in the Leipzig trials the majority of foreign witnesses did not appear despite the grant of immunity by the German Government, it is to be expected that in the Eichmann trial no witness for the Defence will come forward at all in order to give evidence, the more so as many of the persons capable of doing so are exposed to prosecution and punishment, in view of the exceedingly wide scope of Sec. 3 (a) of the "Nazis and Nazi Collaborators (Punishment) Law" which provides for up to seven years imprisonment for the mere membership in an "enemy organization."

It remains an open question how this fact is to be reconciled with the unquestionable effort of the authorities in charge of law enforcement in Israel to give Eichmann a "fair trial." Of course there is a reply to that question - although not in conformity with the meaning of "fair trial" - if Pearlman's[112] view is adopted that Israel meets - better than any country where Eichmann has committed the acts imputed to him - the conditions for thoroughly taking evidence, because in Israel more relevant documents are to be found than elsewhere in the world, and nowhere in the world are there more witnesses available than in Israel. This view of Pearlman's is perfectly correct - with the important reservation, however, that it holds good only with respect to the witnesses for the Prosecution.

1. The active personality principle

The active personality principle relates to the nationality of the offender and, under certain circumstances, it enables the punishment of the offender by a tribunal of his home State for offences committed by him abroad.

Israel cannot rely, in Eichmann's case, upon the principle of international law either; for the Accused is a German citizen, and not an Israeli citizen.

3. The passive personality principle.

According to this principle, a state is entitled to claim jurisdiction over a foreigner - and again subject to certain restrictive conditions - if one of its nationals has been injured by an act of this foreigner which has been committed abroad.

This principle, too, does not empower the State of Israel to prosecute and try the Accused Eichmann. For during the period in which the crimes imputed to the Accused were committed, the State of Israel did not yet exist at all, so that on that legal ground alone it is not possible that by the offences of the Accused nationals of the State of Israel were injured.

At this stage the claim has to be discussed that Israel is entitled to rely upon the passive personality principle at least in respect of the prosecution of "offences against the Jewish People." It is asserted that the legal point of relation to the passive personality principle is to be found in the Declaration of Independence of 14 May 1948, as well as in art. 3 of the Draft Constitution of the State of Israel, where Israel is called the "National Home of the Jewish People."

In this connection, the meaning of the idea in constitutional law need not be discussed. Moreover, no doubt can arise as to the historical and political contents of this idea, as defining the goal of the State. However, it must be emphasized that the idea of the "National Home of the Jewish People" has no meaning whatsoever in international law.

For it is not in conformity with international law actually in force that a state is entitled to create a point of relation determined only by racial tests in order to apply the passive personality principle. From the point of view of international law, Israel is precisely not the representative of all the Jews, whatever their nationality, but only the representative of nationals of the State of Israel. Certainly, there can be no doubt that belonging to the Jewish race alone does not create legal relations between a Polish citizen of Jewish origin and the State of Israel. But the existence of such a relationship is a condition precedent for the vindication of criminal jurisdiction by the State of Israel in respect of an injury inflicted upon this Polish Jew.

The recognition of the right of the State of Israel to prosecute offences against the "Jewish People" - and therefore against any person belonging to the Jewish race whatever his nationality - by reason of the determination of Israel's goal as "National Home of the Jewish People" - will bring about the obvious and cogent result that an Israeli statute would have to be classified as unobjectionable and admissible in international law, if, e.g., thereunder the killing of an American citizen belonging to the Jewish race, carried out in the U.S.A., would be punishable and an Israeli tribunal would be granted jurisdiction in that respect. It seems that this untenable but logical result shows quite clearly that belonging to a certain race cannot amount to a point of relation for the jurisdiction of a state over a foreigner according to the passive personality principle.

However, contrary to the legal position which has just been described, the view has been put forward that it was the Federal Republic of Germany which attributed a meaning in international law to the claim of the State of Israel in its capacity as "National Home of the Jewish People"; for in the Agreement dated 10 September 1952 between the Federal Republic of Germany and the State of Israel (the so-called Reparations Agreement),[113] Israel was recognized as the representative of the "Jewish People," as meaning the total number of all persons belonging to the Jewish race. In this sense, it is stated, e.g. by Green[114]:

"Israel is entitled to represent Jews who have no nationality or who were victims of Nazi oppression - a claim that has been recognized by the Federal Republic of Germany (Agreement between Israel and the German Federal Republic, 10 September 1952)."
This view cannot be approved; for it is obviously incorrect already in view of the terms of the Agreement itself. The preamble of the Agreement states, in no uncertain terms, the reason in law for the German payment of reparation to Israel:
"AND WHEREAS the State of Israel has assumed the heavy burden of resettling so great a number of uprooted and destitute Jewish refugees from Germany and from territories formerly under German rule and has on this basis advanced a claim against the Federal Republic of Germany for global recompense for the cost of the integration of those refugees

NOW THEREFORE the Federal Republic of Germany and the State of Israel have agreed as follows:"[115]

The preamble of the agreement supports, therefore, in no uncertain terms, the assertion that Germany as well as Israel did not consider the German payments as a global recompense for the injury caused by National-Socialist rule to the Jews wheresoever in the world, and that therefore they are not a global recompense of damage caused to individuals, which the State of Israel is entitled to claim. The German payments to Israel are rather characterized in no uncertain terms as a compensation for the financial burden caused directly to the State of Israel as such (" recompense for the cost of integration...").

Prof. Franz Boehm of Frankfurt - who had conducted, in his capacity as representative of the German Federal Republic, the negotiations with the State of Israel preceding the Agreement of 10 September 1952 - is certainly an unbiased witness for the truth of this legal construction.

Boehm states "that the State (that is to say, Israel) does not represent the Jewish People, but only its own citizens, that therefore a recompense we shall grant this State will not benefit directly the Jewish People as a whole, but precisely only this State itself."[116]

Boehm states further on in this context:

"As to the State of Israel in particular, the Chancellor of the Federation has already given expression to his readiness to start negotiations as to the compensation for damage caused to the State of Israel by the absorption of so many homeless Jewish refugees by that State and, before its establishment, by the Government of the Mandatory territory of Palestine."[117]

"...The mandatory territory of Palestine and later on the State of Israel have received, since the beginning of the Third Reich up to the end of the year 1951, approximately 500,000 refugees who had become homeless by reason of the National-Socialist persecution of Jews. The reception and the absorption of these masses of refugees has caused - and still causes - the State of Israel considerable expenses. The Israeli Government has claimed the amount of these expenses as compensation for damages caused to the State."[118]

"The German payment to Israel has therefore no connection with individual reparation. The Israeli Government has never claimed to represent the interests of injured Jewish individuals, even not the interests of its own citizens. Israel claims compensation for damage caused to the State itself by the absorption of refugees. It is the claim of a State and nothing else."[119]

Nothing needs to be added to these unequivocal statements of Boehm's.

To sum up, the conclusion has to be that Israel is not entitled to claim jurisdiction over the Accused Eichmann on the strength of the passive personality principle.

4. The protective principle

According to this principle, the protection of legal interests in criminal law extends to all interests within the territory of the state concerned, irrespective of the fact by whom and where these interests have been injuriously affected. (Closely examined, it appears that the passive personality principle which has just been discussed, is only a sub-species of the protective principle).

Israel cannot rely on this principle either in order to justify its claim for criminal jurisdiction over Eichmann; for in view of the establishment of the State of Israel which took place only in 1948, "interests within its territory" could not have been injuriously affected by offences of the Accused completed in 1945.

5. The universality principle

(a) The last principle which might be called upon in Israel - subject, of course, to the objection based upon the Acts- of-State-Doctrine - in order to justify its claim for criminal jurisdiction over the Accused, is therefore only the universality principle. According to that principle, a claim for jurisdiction of the State which has seized the offender will come into existence, irrespective of the place where the offence has been committed, the nationality of the offender and the subject of his offence.[120] However, this principle applies subject to considerable reservations. In the first place, its very validity is contested.[121] However, insofar as the principle is recognized, it is unanimously agreed that the application is limited to specific offences. Only such crimes as are equally dangerous to all States having regard to the mode of their perpetration or the international character of their commission justify a claim for jurisdiction on the strength of the universality principle.[122]. The universality principle without restrictions (that is to say, irrespective of the fact whether the offence is punishable according to the law of the place of its commission, and disregarding the precedence of a claim for extradition) is applied by municipal laws only in respect of specific offences; that is to say, not generally. The cases where such application is recognized - counterfeiting, slave trade, white-slave trade, trade of children, trade of dangerous drugs or obscene publications, causing damage to submarine cables - are based upon international agreements[123] or, at least, upon established practice.[124] Recognition of the universality principle limited as aforesaid to certain specific offences has been voiced, i.e., by Oppenheim-Lauterpacht,[125] Travers,[126] Janaczek,[127] Kelsen[128] and Woetzel.[129]

(b) However recently a certain tendency can be ascertained to widen the universality principle and to extend it, beyond the scope of the aforesaid legally protected interests, also to war-crimes and crimes against humanity.[130] These tendencies have been encouraged by the four Geneva Conventions of 12 August 1949. By these Conventions, the States, parties to the Conventions, undertake to make punishable serious violations of the agreements and to persecute them regardless of the place of their commission and of the nationality of the offender.[131] Extradition to one of the other parties to the conventions, it is true, is permitted, but there is no obligation to extradite. At any rate, in respect of the scope of application of the Geneva Convention, the universality principle has thereby been recognized. On the one hand, therefore, the Geneva Conventions are evidence of the tendency to widen the scope of the universality principle, but on the other hand, they are also evidence of the fact that before the signature of the conventions, the universality principle had not applied to the subject matter dealt with therein; otherwise the signature of the conventions would not have been necessary.[132]

(c) The London Charter of the International Military Tribunal, dated 8 August 1945. and the Judgment of the International Military Tribunal, dated 30 August 1946

The London Charter and the Judgment of the International Military Tribunal in the trial of Nuremberg deserve a thorough discussion in connection with the Eichmann case for the following reasons:

Art. 6 of the London Charter provided for punishment of war crimes and crimes against humanity, without any restriction as to the time and place of the commission of the offence.

If the London Charter is regarded as a codification of customary international law then in force or as a genuine source of international law, one has to expect the argument that the validity of a universality principle, the application of which is not restricted to certain specified offences, could be based upon these sources of law so that Israel could probably claim jurisdiction over Eichmann.


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