The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of Adolf Eichmann
Session 4
(Part 3 of 3)

Holocaust, Adolf Eichmann, Eichmann trial, holocaust, Jewish holocaust
Among the numerous trials of war criminals the Court will find, as was already mentioned, in Meyerowitz' book instances in which the court of one country dealt with crimes committed against members of another nation. In the Law Reports of Trials of War Criminals, Vol. 1 page 106, the following is stated (I am reading from the English judgment):
"That the appointment of Allied members of the Military Courts is not compulsory is strikingly demonstrated by the trial of a British Military Court at Singapore of W/O Tomono Shimio of the Japanese Army. In that case the accused was charged, found guilty and sentenced to death by hanging, by a Court consisting of British officers only, for having unlawfully killed American prisoners of war at Saigon, French Indo-China. The locus delicti commissi was French territory, the victims were United States nationals."
And so a British Military Court in Singapore tried a Japanese war criminal for offences which he committed on French territory against American subjects. What was the source of the competence of the British Military Court? - this we find on page 53 of the Hadamar Trial:
"The United States did have a direct interest in punishing the perpetrators of the offence inasmuch as the victims were nationals of allies engaged in a common struggle against a common enemy."
Your Honours, if British or Americans were able to judge crimes which were not committed in their territories, where the injured parties were not their nationals, in which they had no interest other than that the injured parties were subjects of their Allies - how much more compelling is the right of an Israeli Court to judge someone who is accused of the intention of exterminating the Jewish people? For us, the Jewish people are not simply "Allies" who may today be a partner and who conceivably tomorrow may no longer be a member of a military or political alliance, who today is a partner in war and tomorrow may possibly be an enemy. If those countries were able to assume to themselves the right of jurisdiction, on the ground that those who were harmed were "allies," our moral and legal right to try the person who sought to wipe out the Jewish people, our own flesh and blood - is unchallengeable.

Judge Halevi: Perhaps this is the place to mention the counts regarding Polish citizens, Czechs and other peoples who were also victims according to the indictment, and who are also Allies.

Attorney General: Your Honour, we have accused Adolf Eichmann for those crimes which are known to us. And seeing that crimes against humanity, in our view, are exterritorial, we are permitted to try him in Israel for crimes against Poles, Slovenes and Gypsies in exactly the same way as a Polish or Czech or Hungarian Court would be permitted to conduct a trial for crimes committed against their nationals and against other nationals. When a Polish Court sentenced Rudolf Hoess, commander of the Auschwitz camp, it was sentencing a man who had committed crimes while admittedly on Polish soil but against the nationals of a dozen countries.

But furthermore, Your Honours, if we do not try him, if the Court should accept the contention of Defence Counsel, possibly no other Court may try him. And the unprecedented crimes, of which he is accused, may possibly go unpunished. I have already said: There is no country today demanding Adolf Eichmann's extradition. There is no one claiming for himself the right of jurisdiction over him. If this Court were to divest itself of the competence which it possesses, it will be necessary to release him. If he returned to Argentina whence he was brought here...

Judge Halevi: I do not know whether he can return to Argentina. After all, he was there under an assumed name.

Attorney General: Argentina demanded his return at a particular stage in the negotiations between us and the Government of Argentina. If we were to return Adolf Eichmann to Argentina, Ricardo Klement could have come out of hiding, if he were afraid only of extradition and not of any other harm to himself, since according to the law of Argentina - as I shall show the Court forthwith - he was immune against extradition to any other country at all.

Apart from cases covered by extradition treaties, an Argentinian Court has decided that it will not extradite a war criminal after the passage of the period of legal prescription of 15 years applying to crimes, according to the Argentinian law. In a case which was heard in Buenos Aires on 18 July 1960, on the application of the Government of Czechoslovakia for the extradition of Durcanski, the Argentinian Court declined to grant the request. And this is what it said:

"We have to decide in this matter what is the law that applies and arising therefrom what is the period of prescription. The Law of Extradition No. 1612 in sub- section 5 of section 3 provides for the rejection of the application where according to the laws of Argentina or of the country making the demand, the claim is barred by prescription. According to section 2 of the Criminal Code, the law which is more advantageous to the accused is to be applied. This is also the traditional principle in most of the international agreements, as the State Attorney has pointed out. In the application for extradition no details were given of the principles relating to prescription of criminal charges in Czechoslovakia at the time the deeds attributed to the accused were committed. In view of this we have to act according to the Argentinian law. Section 62 of the Criminal Code, Sub-section 1, lays down that the maximum period for prescription is 15 years, a period which has long since passed, from the conclusion of the Second World War on 9 May 1945 until Durcanski's arrest. We therefore have to conclude that the application for extradition has to be rejected, seeing that, if the accused cannot be tried, and it is impossible to judge him in our country in respect of the acts attributed to him, for reasons of prescription, it is also impossible to carry out the extradition in order that he may be tried for these acts in the requesting country."
I have here a photostatic copy of the Argentinian judgment. I also have its text, as published in the Argentinian legal journal Jurisprudencia Argentina. Argentina has the right to enact such laws. But if it is a fact, as Defence Counsel said yesterday, that Adolf Eichmann was arrested on 11 May 1960, on that date two days had already elapsed since the date on which he could have emerged from his place of hiding as Ricardo Klement and was no longer liable to extradition to any country whatsoever.

Presiding Judge: Why, in fact does the Argentine Court say that their period of prescription had long passed, as you read out?

Attorney General: From 9th May until July is a long time. On 9 May 1945 the Second World War ended with Germany's surrender.

Presiding Judge: The application was surely submitted before then. You are referring to the date of the decision.

Attorney General: The arrest was made...

Presiding Judge: The arrest was on 18 July, wasn't it?

Attorney General: Yes, after the expiry of 15 years.

And in conclusion of this matter, may I be permitted to submit the certificate of a public official signed by Ambassador Shabtai Rosenne, legal adviser of the Ministry for Foreign Affairs, attaching a copy of a Note from the Embassy of the United States to the Ministry for Foreign Affairs dated 24 October 1950, the original of which is retained in the files of the Ministry for Foreign Affairs. I submit signed copies of this certificate, which contains a request from the Government of the United States to Israel to join with her in recognizing the termination of the state of war with Germany, in view of the developments which had taken place subsequent to the London meeting in May 1950. In the second paragraph the American Embassy states:

"Since the Ministers found that it was impossible to achieve the unification of Germany on a basis which respects the fundamental liberties, the Governments of the United States, the United Kingdom and France agreed to consider the Government of the Federal Republic as the only German Government freely and legitimately constituted and therefore entitled to speak for Germany as the representative of the German people in international affairs.

"The three Governments have therefore decided, as soon as action can be taken in all three countries in accordance with their respective constitutional requirements, to take the necessary steps in their domestic legislation to terminate the state of war with Germany. This action will not affect the rights and status of the three Powers in Germany, which rest upon other bases. It will however create a firmer foundation for the developing structure of peaceful and friendly relationships and will remove disabilities to which German nationals are subject. The three Governments hope that other Governments, including that of Israel if it sees fit, will find it possible to take similar action in accordance with their own constitutional practices at about the same time as the Governments of the United States, the United Kindgom and France. So far as can be seen at present this time is likely to be early in 1951, but in the meantime preparatory measures will no doubt be necessary in the countries concerned to bring about the termination of the state of war at the time mentioned. In the event of it being decided by the Governments of the Occupying Powers to take earlier action, the interested Governments will be notified."

The State of Israel was, accordingly, requested to join in the termination of the state of war with the Federal Republic, and these three Powers acknowledged the fact that the State of Israel, despite the fact that it was not in existence at the time of the declaration of the war nor at the time when it ended, was a belligerent whose agreement and collaboration had to be sought for the termination of the state of hostilities.

In its reply, the Israel Ministry for Foreign Affairs stated (this appears as Annexure B before you, Your Honours):-

"The Ministry for Foreign Affairs presents its compliments to the British Legation and has the honour to refer to the Legation's Note of 24 October 1950 concerning decisions reached by the Foreign Ministers of the United Kingdom, the United States and France at their meeting in New York in September last.

The Ministry has particularly noted the decision of the three Governments to take the necessary steps in their domestic legislation to terminate the state of war with Germany, and their affirmation that any action by the Occupying Powers as is more particularly described in the said Note in no way prejudices the final peace settlement.

In the Note the hope was expressed that the Government of Israel if it saw fit, would find it possible to take action similar to that decided upon by the Governments of the United Kingdom, the United States and France, whose view it was that such action would create a firmer foundation for the developing structure of friendly relationships and would remove disabilities to which German nationals were subject. The Ministry for Foreign Affairs desires to inform the British Legation that in the view of the Government of Israel, which has given the matter its most careful consideration, the exceptional circumstances of this country do not warrant action on the lines suggested.

In bringing the above to the notice of the Legation, the Ministry for Foreign Affairs desires to point out that the Government of Israel reserves fully its rights and position in relation to Germany and its claims against that country."

In Annexure D the Court will find the statement of the Spokesman of the Ministry for Foreign Affairs of 9 July, 1951:
"More than eighteen years have elapsed since the Nazi Government came to power and anti-Semitism became a major object of German policy. For twelve terrible years Germany pursued that hostile course against the Jewish people with a ruthless persistence that has no parallel in any war waged by one people against another. It spread that vicious creed in every country which fell under its sway, and in the end sealed that policy by the slaughter of six million Jews, the bulk of European Jewry.

"Six years after the end of hostilities the German people have not yet made any expiation or reparation for the crimes committed by the Nazis. To this day the German people had not found it within themselves to shake off the blood-stained heritage of their erstwhile masters.

"To this day they have not abjured or solemnly dissociated themselves from the appalling record of these twelve years of Nazi rule.

"To this date they continue to enjoy the possession of property they stole from their Jewish victims before they sent them to the death chambers.

"To this day, as every new election shows, the evil doctrines of Nazism are rampant in Germany.

"As long as this state of affairs continues, Germany's war against the Jewish people cannot be regarded as having come to an end."

Presiding Judge: I have marked this certificate together with its annexures as T/5.

Attorney General: But meanwhile something has changed. Ten years have passed since that declaration of the Ministry for Foreign Affairs. A Reparations Agreement was signed, an Israel Mission exists in West Germany, the Federal Republic has officially abjured the crimes of the Nazis, and the Head of that country has made declarations which are well known to all of us. The important thing from the point of view of this document is that three Western Powers requested Israel to participate in terminating the state of war with Germany and in so doing acknowledged by means of an international document, at least on their part, the special status of Israel whose consent and legislative enactment were necessary for the termination of that state of war.

I submit, therefore, in summing up the issue: in regard to crimes against the Jewish people, the Israel Court is competent to try the case. It is competent to do so according to the general doctrines of international law, it is competent to do so because the victims of these crimes were victims of this state no less than the victims of Auschwitz were victims of the State of Poland or the victims of Bergen_Belsen were the victims of whatever Court tried those criminals. The absence of the formal establishment of the State does not make any difference to the subject. Israeli judges will not be less fair in this trial than if the State had existed already in 1936 or 1937, as was then recommended by the Peel Commission. This confusion between the question of "fair trial" with that of the non-existence of the State is also not relevant here. The State of Israel has proved to its inhabitants and to the world that it possesses a judicial system which is just, and that it guarantees the rights of defence to an accused person in conformity with the will of its population and its laws. The State of Israel is competent, no less than any other State, to try a man accused of crimes against the Jewish people. The State of Israel has existed as a political nucleus since 1917, and the historic connection between the Jewish people and this country has never been severed since the destruction of the Temple. According to international law this State is recognized as a Jewish State.

Accordingly I ask the Court to decide that it possesses competence in respect of these crimes.

Your Honours, you said you wanted to shorten today's session. I am ready to stop at this point. I believe I shall not require of you more than one hour on Friday morning. Presiding Judge: I understand that you need the additional hour in order to deal with the authorities which Dr. Servatius has submitted in his written arguments.

Attorney General: That is so, Your Honour. I have already dealt with some of them, but others still need to be answered. I shall try to confine my comments to the limits of one hour.

Presiding Judge: Dr. Servatius, the Court will be ready to hear a reply from you when the Attorney General has concluded his argument - a concise reply of course. You should be ready for this on Friday, after the Attorney General has finished his remarks.

Dr. Servatius: I think my reply will take about half an hour.

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