The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of Adolf Eichmann
Session 2
(Part 2 of 3)

Holocaust, Adolf Eichmann, Eichmann trial, holocaust, Jewish holocaust
Even when the attempt to nullify a judicial process is made before the inception of the case, as Defence Counsel is doing in this instance, there is no difference. The rule which I have indicated applies not only to judicial proceedings which have already been completed but also to judicial proceedings which are still about to begin. This was laid down in Leahy versus Kunkel, 1933, 4 Federal Supplement, page 849. The facts appear on page 850. I quote from the judgment:
"The facts are stipulated and are briefly as follows: Petitioner was indicted by the grand jury of the Marshall County Circuit Court for bank robbery. He lives in Chicago. The sheriff of Marshall county, accompanied by one Indiana police officer and two police officers of the city of Chicago, arrested petitioner in Chicago without a warrant, took him to a detective bureau and locked him up. Thereafter he was handcuffed and placed in the sheriff's car and driven to Indiana. At South Bend he was placed in jail overnight and the next morning he was taken to Marshall county, where a warrant of arrest was read to him. He was then taken to the Marshall County Circuit Court, where bond was fixed, and upon his failure to give the bond fixed by the court, was delivered for safekeeping on order of the court to respondent, who is warden of the Indiana State Penitentiary at Michigan City, Ind. He then filed his petition for writ of habeas corpus in the Marshall County Circuit Court, which petition was by the judge thereof dismissed and his case set for trial.

"Petitioner contends, not without logic, that having been arrested without right and forcibly taken from the state of Illinois to the state of Indiana - `kidnapped,' in other words, with all the ugly terrifying meaning that word implies - he is entitled to be discharged, or at least returned to the State of Illinois."

And this is the decision of the Court (I quote from the end of the page):
"The petitioner is here seeking by the exercise of the extraordinary remedy of habeas corpus to prevent his trial in a state court on the ground that his apprehension and subsequent arrest are illegal, and for that reason no jurisdiction exists in the state court, to put him on trial. "The law is well settled that a person charged with crime in one state, and who is found in and abducted from another state and brought into the state where he is indicted is not entitled to be discharged upon habeas corpus in a District Court of the United States. Neither the Constitution nor the laws of the United States entitle such person to a discharge. Pettibone versus Nichols..."
Presiding Judge: Which Court is this?

Attorney General: The United States District Court, Indiana. A further case in which there arose the question of illegal detention, arrest and transfer, as was argued, was United States versus Insull, 1934, 8 Federal Supplement, on page 310. And here are the facts which are somewhat strange. I quote from the judgment:

"Where defendant, a United States citizen, was, while on Greek vessel in Bosporus, forcibly seized by Turkish police, allegedly at instance of United States government, incarcerated in Turkish prison and then delivered onto American vessel to agent of American government and brought to United States where federal indictment against him was pending, federal court held not deprived of jurisdiction, even if offense was not within any extradition treaty between Greece or Turkey and the United States, and court had no power to inquire into such alleged facts."
There the applicant argued exactly the same point which Defence Counsel has taken here. I quote from 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 the view of the Court appears 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 the 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."

May I be permitted to break off here and say that the State of Israel entered into negotiations with the Government of Argentina in regard to the detention and arrest of Adolf Eichmann and following the decision of the Security Council on the subject, an official announcement was published on 3 August 1960 in Jerusalem and Buenos Aires by the Governments of Israel and Argentina showing the incident to be closed. I submit here the certificate of a public official signed by Mr. Shabtai Rosenne, an Israeli Ambassador, Legal Adviser to the Ministry for Foreign Affairs, containing the joint official statement. The statement is in Spanish and was so published.

Presiding Judge: We mark this document T/4.

Attorney General: I shall immediately submit to the Court or shall read the Hebrew translation of the Spanish text.

Presiding Judge: I think it is possible to understand it.

Attorney General: Thank you. The Court will save me the trouble. Perhaps I shall read it for the record:

"The Governments of Israel and of the Republic of Argentina, imbued with the wish to implement the resolution of the Security Council of 23 June 1960, in which the hope was expressed that the traditionally friendly relations between the two countries will be advanced, have decided to regard as closed the incident that arose out of the action taken by Israel nationals which infringed the fundamental rights of the State of Argentina."
Not that this is important to this case. The Court could continue its proceedings even if differences continued to exist between us and the State of Argentina; and even if the State of Argentina were to take action against us before the International Court at the Hague, this court would still be competent to try Adolf Eichmann.

I also want to show that even from the point of view of International Law and the possibility of a conflict over jurisdiction, no such conflict exists. And in the words of the judgment in the case United States versus Insull, the State of Argentina demanded its rights and insisted that there had been a violation of its sovereignty, and the Government of Israel apologized therefore, and in this way the incident was closed.

When the problem again came up in the United States, in the year 1944, in the matter of Sheehan versus Huff 1944, 142 Federal Second, page 81 - this was already in the U.S. Court of Appeal, District of Columbia - the facts were as follows:

"Petition for writ of habeas corpus alleging that, prior to trial in criminal prosecution, petitioner was brought from Virginia to the District of Columbia without extradition proceedings in spite of his protest and his unwillingness to waive extradition, presented no substantial question, and denial of petition without appointment of counsel for defendant was not error."
It was not even necessary to appoint a lawyer for the accused who made such a claim - thus the Appeal Court decided. This was not even considered to be an `error' requiring the intervention of the Appeal Court.

On page 81 we read:

"Counsel for petitioner, appointed by this court to represent him on appeal, has filed a persuasive brief. It admits that the Supreme Court has decided that jurisdiction in a criminal case is not impaired by the fact that the accused was brought before the court in an unlawful manner, but urges these decisions should not be followed. We believe however, that the question is so well settled that it cannot be reopened here."
A case somewhat reminiscent of our case, at least from the factual view, even if not fully analogous in its legal implications is: Chandler versus United States, 1949, 171 Federal Second, page 291. There is a certain discrepancy in the facts because that was a case of treason. Chandler was so convinced by anti-Semitic propaganda that he decided to defect to Nazi Germany. And this is what is said on page 925:
"Over the years Chandler had developed an anti-Jewish outlook; and his fierce emotions on that theme were accentuated by certain personal setbacks which he attributed to malignant Jewish interference. He came to believe, or to profess to believe, in the existence of a sinister worldwide Jewish conspiracy. Naturally he found the anti-Jewish climate of Nazi Germany congenial. While in Germany before the War his interest was cultivated by one Hoffman, an attache4in the German Press Department, serving as contact man for foreign journalists. He was favorably impressed with what he saw in Germany and came to regard the Nazi regime as the bulwark of Western civilization against what he thought to be the Jewish-Bolshevist menace."
On page 933 facts are set out relating to an illegal arrest, in Chandler's opinion, in Germany.

Presiding Judge: By whom was he arrested there?

Attorney General: By the American Army.

On page 934 it is stated:

"It is said that the manner in which the court below acquired jurisdiction of the defendant violated the law of the forum in three particulars, that is to say, (1) it violated the terms of the extradition treaty between the United States and Germany; (2) apart from treaty, it violated the right of asylum guaranteed by international law to political offenders; and (3) it violated the Act of June 18, 1878, Stat. 152. 10 U.S.C.A. 15, prohibiting the use of the army of the United States as a posse comitatus."
The Court did not accept any one of these arguments, decided that the trial would proceed lawfully, and that the judgment given by the Court below was legal.

Another Nazi collaborator who was also brought against her will from Germany to the United States, Mrs. Gillers, advanced the same argument: Gillers versus U.S.A. Federal Second 1950, page 152. I will not read from this judgment - I shall merely draw your attention thereto: It follows along the lines of the same rule.

The law has been briefly summed up, shortly and clearly in two new judgments. One is Pebly versus Knotts, 1951, 95 Federal Supplement, page 283. I draw the Court's attention to what is stated on page 286 without quoting it. The other case is Dean versus Ohio, 1952, 107 Federal Supplement, page 937. On page 939 it is stated, and I read from the judgment:

"In passing on the subject of the petitioner's extradition to Ohio it should be noted that it is virtually a universal rule that where an accused is found in a jurisdiction wherein he is charged with a crime, the circumstances surrounding his actual presence within that jurisdiction will not be inquired into. If he was brought from another jurisdiction by kidnapping, stratagem or illegal extradition he may still be tried if he is presently being held under process legally issued from a court of that jurisdiction."
The same issue again came before the United States Supreme Court in 1952 in Frisbie versus Collins, 1952, 96 Lawyers Ed. On page 541 Justice Black, who read the judgment, said - and I am reading from page 544:
"Acting as his own lawyer the respondent Charles Collins brought this habeas corpus case in a United States District Court seeking release from a Michigan State prison where he is serving a life sentence for murder. His petition alleges that while he was living in Chicago, Michigan officers forcibly seized, handcuffed, blackjacked and took him to Michigan. He claimed that trial and conviction under such circumstances is in violation of the Due Process Clause of the Fourteenth Amendment and the Federal Kidnapping Act, and that therefore his conviction is a nullity."
On page 545 Justice Black says briefly: "This court has never departed from the rule announced in Ker versus Illinois, 119 US 436, 444, 30 L. ed. 421, 7 S CT 225, that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court's jurisdiction by reason of a `forcible abduction.' No persuasive reasons are now presented to justify overruling this line of cases." If this is the situation in the United States, the State which - as I have already said repeatedly - is exceedingly sensitive to relations between States, between the Federal States of the Union, and between foreign powers, then that same principle applies with the same force, the same unchallengeable certainty in this Court.

Adolf Eichmann is legally arraigned before you in this Court, in terms of a committal order issued by legal process. He has been given notice of the charges against him legally, an indictment has been preferred against him according to law, the crimes attributed to him are offences according to the law of this country. He has been given the full opportunity to prepare his case; he will have a full opportunity to conduct his defence - if he has anything to say in his favour - and the circumstances in which he was brought here are of no concern to this Court. It is not relevant and has nothing to do with us here.

Consequently, I ask that the witnesses whom Defence Counsel wanted to call be not heard, since their evidence will not cast any light on any problem which this Court is required to determine. Their evidence will not cast any light on the guilt or innocence of the crimes of Adolf Eichmann, according to any of the counts in the indictment. And this is the relevant issue. Even where in a hypothetical case he would have succeeded in eliciting from these witnesses everything he hopes to establish - this would make no difference whatsoever to your decision. And with all due respect I say: your decision ought to be to proceed with the trial according to the indictment which has been legally submitted.

With the Court's permission I should like to pass, now, to an analysis of other arguments, if we still have the time today.

Presiding Judge: I think we will continue until 18:30.

Attorney General: I would like to request a short interval of a few minutes.

Presiding Judge: Generally we shall not have breaks during the afternoon sessions. I presume you have a good reason for requesting such a break? We shall recess for ten minutes.

Attorney General: May it please the Court. The legal problem relating to the punishment of Nazis and their collaborators is an outcome of a unique and special development in the history of law. For Nazi Germany abused the sacred principles of the maintenance of law generally, and by means of a series of unprecedented crimes created a vacuum, a legal chaos, an abdication of the law, in the same way as it created political and military chaos by means of abandoning all international obligations, and first and foremost its obligation to preserve the peace.

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