Appeal Session 02-06, Eichmann Adolf

The Appellant’s reliance on the Genocide Convention is
unjustified. The argument is as if under this Convention
it is laid down that only the injured country, i.e. the
country where the crimes were committed, can judge them.
This argument is incorrect. First of all, in the
Convention itself it is stated that genocide is a crime
under international law, and the Convention simply
confirms this, i.e., according to this principle, what
universality amounts to is the right of every society in
the family of nations to punish this crime. All the
Convention does now is to determine that this will also be
an obligation for the parties to the Convention to take
upon themselves the power of jurisdiction and punishment,
and it is taken for granted that the parties to the
Convention are formally bound by this obligation from the
moment of signing. But this did not in any way restrict
the pre-existing right of any state, also before the
Convention was entered into, to bring the force of law to
bear on crimes such as this. Thus the parallel which the
Appellant wishes to draw is unfounded. The District Court
epitomized this issue in paragraphs 27 to 25 of its
Judgment, and I cannot but repeat what it said at the end:

“Our view as to the universality of jurisdiction is
not based on this Law or on this interpretation of
Article 6 of the Convention, but derives from the
basic nature of the crime of genocide as a crime of
utmost gravity under international law.”

President: According to this argument, it would appear
that from the viewpoint of international law, our law
against the Nazis is not at all retroactive. If this is a
crime that existed, this law simply provides the State of
Israel with the tools to use in its respect, but in terms
of the actual crime, it would appear that it is not

Attorney General: This was the interpretation at
Nuremberg. We are saying that we will punish crimes that
already existed, just as the President: put it.

Justice Silberg: On which article of the Convention is Dr.
Servatius basing himself?

Attorney General: Article 6.

President: This is an international penal court – what
about the situation if it is something else?

Attorney General: I will read Article 6:

“Persons charged with genocide or any of the other
acts enumerated in Article 3 shall be tried by a
competent tribunal of the States in the territory of
which the act was committed, or by such international
penal tribunal as may have jurisdiction with respect
to those Contracting Parties which shall have
accepted its jurisdiction.”

Justice Silberg: Is that cited in paragraph 20 of the

Attorney General: This is in paragraphs 17-25 of the
Judgment. I should just like to add the following remark:
The State of Israel was one of those which fought for the
establishment of an international penal court, and I would
like to refer here to the efforts of my colleague for the
Prosecution, Dr. Robinson, in this struggle in the U.N.
And it is through no fault of the State that an
international penal court was not set up, before whom it
would have been possible to try international criminals

The attempt to nullify in Jerusalem the principles of
individual responsibility, which are shared by the entire
civilized world, will not succeed. An Israeli court will
not do anything to extinguish the candle that has been lit
by international law and which incorporates a new hope of
encouraging peaceful ties between peoples and deterring
international criminals. It is not here that the wheel of
progress of international law will be turned back. This is
especially not something that we will do here, when so
many jurists, including fellow Jews, have striven
unceasingly for the development of international law as it
has indeed been developed since the Second World War. In a
recent book by Prof. Mushkat in Hebrew, called The
Nuremberg Trial, published by Yad Vashem, the Court will
find in the introduction a presentation of the way the
principles of punishing war criminals have developed,
including the struggle to impose the principle of
individual responsibility for war crimes. And on page 36,
there is a description of the contribution of Jewish
scholars to the formulation of these principles.

In the article by my colleague for the Prosecution, Dr.
Robinson, published in the collection issued recently by
the Hebrew University in memory of Prof. Lauterpacht, the
Court will find an analysis of the initial patterns
established in this field by Lauterpacht and which were
subsequently accepted generally.

In 1947, Hans Kelsen asked the following question in the
International Law Quarterly (on page 153): Is the
Nuremberg judgment a precedent? Even Kelsen, the last
important survivor of the conservative approach, concludes
that the principle of individual responsibility for crimes
committed within the framework of the state is a loftier
expression of justice than reliance on laws which
ostensibly allowed those crimes to be perpetrated. And on
page 165 he says:

“A retroactive law providing individual punishment
for acts which were illegal though not criminal at
the time
they were committed, seems also to be an exception to
the rule against ex post facto laws. The London
Agreement is such a law. It is retroactive only
insofar as it established individual criminal
responsibility for acts which at the time they were
committed constituted violations of existing
international law, but for which this law has
provided only collective responsibility. The rule
against retroactive legislation is a principle of
justice. Individual criminal responsibility
represents certainly a higher degree of justice than
collective responsibility, the typical technique of
primitive law…”

Kelsen also admits that where two principles collide, the
principle of basic justice on the one hand, and of
formalism on the other, justice must gain the upper hand,
and he concludes this section in the following words:

“…In case two postulates of justice are in conflict
with each other, the higher one prevails; and to
punish those who were morally responsible for the
international crime of the Second World War may
certainly be considered as more important than to
comply with the rather relative rule against ex post
facto laws, open to so many exceptions.”

President: Which page is that?

Attorney General: In the same section. Since Kelsen asked
“Is Nuremberg a precedent?”, a few years have passed, and
his question can be answered in the affirmative: Nuremberg
is a precedent.

One of the great positivists in German juridical thinking,
Gustav Radbruch, wrote the following after the War (on
page 353 in Rechtsphilosophie): “It can no longer be said
by any meams that what is legal is anything that serves
the nation; rather, what is legal is what strengthens the
law’s certainty and aspires to justice.”

Justice Agranat: Are you quoting from a book or an

Attorney General: This is from a book, not an article; it
comes from a book which he wrote on illegal laws. I have
the German original text, I am prepared to make it
available to the Court. When the law does not even try to
be just and denies the basic principles of fairness, about
which there cannot be any dispute, then the mere external
trappings of a provision cannot confer any legality on it.

I should point out that war criminals and those who commit
crimes against humanity have been explicitly excluded from
the ambit of the international conventions that were
concluded at the end of the War to protect individuals in
need of such protection. In the Convention Relating to the
Status of Refugees (Convention Documents, Vol. 3, p.5) it
says in Article 1(a)(1): “The provisions of this
Convention shall not apply to an individual about whom
there is serious reason to believe that he carried out
some offence against peace, a war crime or against
humanity, as defined in international documents drawn up
in order to lay down provisions in respect of such

The same is stated in the Convention concerning the
Treatment of Stateless Persons (Convention Documents, Vol.
8, p. 553) in Article 1, Paragraph 3). This indicates that
war criminals are not included in the international
protection that the organized world confers upon those in
need of such protection, while the Declaration of Human
Rights, the Magna Carta of our time, states in Article
11(1) that an individual can be put on trial for an act
committed by him under national law or international law.

President: What were you quoting just now?

Attorney General: I quoted from the Declaration of Rights
unanimously approved by the U.N. Assembly on 10 December
1948. Article 11(1) contains the text I referred to. There
are crimes under national law and there are crimes under
international law.

Justice Silberg: Is the definition in our law taken from
the Convention?

Attorney General: Yes. It is taken from the Convention.
Regrettably, the State of Israel is not one of the few
countries which have enacted municipal legislation in the
wake of the International Convention.

Counsel for the Defence submitted an argument yesterday in
connection with another Convention, and I fear that
confusion was evident in respect of many concepts, and I
will now try to deal with the resultant lack of clarity.

There is a European Convention which is to be found in the
1950 Yearbook of Human Rights, published by the United
Nations. It is called the “Convention for the Protection
of Human Rights and Fundamental Freedoms.”

Justice Silberg: The Convention Counsel for the Defence
referred to?

Attorney General: Yes. But this is where the confusion
arose. He said that he would petition the United Nations
on this matter. The United Nations are not a party to this
Convention. The Convention is applicable only to the
members of the Council of Europe. And the Council of
Europe has its own machinery. And even it cannot do
anything to help Adolf Eichmann. In Article 5, the
Convention states that no one shall be deprived of his
liberty other than if a judgment has been handed down
against him or if he is awaiting trial. In Article 7 it
lays down the principle of international law to which I
have already referred.

Justice Silberg: Are you referring, Mr. Attorney General,
to the Convention of 10 December 1948 or to the Rome
Convention of 4 November 1950?

Attorney General: I am referring to the Convention of 4
November 1950. That is a European convention, and not a
general convention. The United Nations proclaimed the Ten
Commandments of human liberties. Discussions are still
continuing at the United Nations on a general convention,
but these debates have not yet resulted in any written
convention. The Council of Europe did not wait for the
other countries of the world to support such a convention,
and it produced its own Convention in Rome. Article 7

“No one shall be held guilty of any criminal offence on
account of any act or omission which did not constitute a
criminal offence under national or international law at
the time when it was committed.”

And immediately after this, in the same breath, to make
this text clearer:

“This article shall not prejudice the trial and
punishment of any person for any act or omission
which, at the time when it was committed, was
criminal according to the general principles of law
recognized by civilized nations.”

In other words, Eichmann can be put on trial under this
Convention also, even if the laws are formulated in an ex
post facto fashion.

Counsel for the Defence warns us with Article 25 of the
Convention. What is Article 25? The Commission of the
Council of Europe “may receive petitions addressed to the
Secretary General of the Council of Europe from any
person, non_governmental organization or group of
individuals claiming to be the victim of a violation by
one of the High Contracting Parties of the rights set
forth in this Convention.”

There are also restrictions on such petitions. We are not
a party, although we have not infringed any of its
provisions, even if we were a party to the Convention. In
any case, we are not a party to it. He wants to submit a
petition against Germany – by all means, he is free to do
so. What is it he wants from this Court? Does he want you
to issue an order nisi against the Bonn Government as to
why it should not petition the Commission with a request
for Eichmann’s extradition? Should I intervene in the
arguments between Eichmann and the West German Government?
He has initiated proceedings there – so I gather from his
Defence Counsel let him continue with them. I can add in
parenthesis that he has no rights against a state under
this Covenant, because it is not obligated to demand the
extradition of one of its subjects who is standing trial
elsewhere. The argument here is as follows: Why does
Germany not demand his extradition from Israel? He wishes
to apply Article 25 of the Covenant in this connection. I
see nothing in the Covenant which would make it possible
to do this. In any case, there is no such definition of
responsibility. And he tells us that under Article 25 he
will petition the United Nations. This is definitely out
of the question.

Justice Silberg: What does the United Nations Universal
Declaration of Human Rights of 10 December 1948 say?

Attorney General: You have the book.

Justice Silberg: It says nothing there about fundamental

Attorney General: It refers to human rights.

Justice Silberg: In the Rome Declaration it refers to
human rights and fundamental liberties.

Attorney General: It is in there, Your Honour. The Court
will find that the right to a fair trial is specified in
detail, in that Declaration as well.

An argument was put forward according to which Eichmann’s
acts might have been offences when he committed them, but
that the Court cannot try him for them. I can reply briefly
to this argument using the words of Lord Wright in his
article “War Crimes under International Law,” published in
the Law Quarterly Review No. 245, January 1946). I will
read three passages from pages 40-41.

“International Law differs from these national systems
because there is no central law-making authority. It may
thus be described as the law of the international
community. That community, however, consists of a number
of independent sovereign nations, each with its own system
of National or Municipal law.

“The lawyer familiar with a municipal system of law
will question how this is possible. The idea of law
for him will be something to be precisely ascertained
from Codes or Acts of the Legislature or decisions of
competent Courts, something fixed, precise, coercive,
something which corresponds to the ideal of
analytical jurisprudence. But that concept does not
exhaust the idea of what law is. Law consists of
rules for determining conduct. There may be such
rules without legislation, without Courts and without
executives to give effect to them. There may be the
customary or traditional rules which are so familiar
that men obey them or act in accordance with them as
a matter of ordinary course.”

At the bottom of page 41 it says:

“…that they are not crimes because of the agreement
of the four Governments, but that the Governments
have scheduled them as coming under the jurisdiction
of the Tribunal because they are already crimes by
existing law. On any other assumption the Court would
not be a Court of law but a manifestation of power.
The principles which are declared in the Agreement
are not laid down as an arbitrary direction to the
court but are intended to define and do, in my
opinion, accurately define what is the existing
International Law on these matters.”

An additional argument on the basis of which the Appellant
claims that he cannot be tried here is because he was
kidnapped against his will.

President: Perhaps we should postpone this until the next
session on Monday?

Attorney General: With this I shall be able to conclude my
legal arguments and in the next session turn to the
substance of the matter. Perhaps I shall have to ask the
Court to continue for a few minutes after 13.00.

President: We shall postpone this till Monday.

[The session closed at 12.55]

Last-Modified: 1999/06/15