Appeal Session 07-01, Eichmann Adolf


1. The Appellant, Adolf Eichmann, was
found guilty by the District Court of Jerusalem of offences
of the most extreme gravity against the Nazis and Nazi
Collaborators (Punishment) Law 5710-1950 (hereinafter – “the
Law”) and was sentenced to death. These offences may be
divided into four groups: Group One: Crimes against the
Jewish People, contrary to Section I(a) (1) of the Law;Group
Two: Crimes against Humanity, contrary to Section 1(a)
(2);Group Three: War Crimes, contrary to Section 1(a) (3);

Group Four: Membership of Hostile Organizations, contrary
to Section 3.

2. The acts constituting these offences, which the Court
attributed to the Appellant, have been specified in
paragraph 244 of the Judgment.

The acts belonging to Group One are:

(1) That during the period from August 1941 to May 1945, in
Germany, in the territories of the Axis States, and in the
areas which were subject to the authority of Germany and the
Axis States, he, together with others, caused the deaths of
millions of Jews, with the purpose of implementing the plan
which was known as `the Final Solution of the Jewish
Question,’ with intent to exterminate the Jewish People;
(2) that during that period and in the same places he,
together with others, subjected millions of Jews to living
conditions which were likely to bring about their physical
destruction, in order to implement the said plan, with
intent to exterminate the Jewish People;

(3) that during that period and in the same places he,
together with others, caused grave bodily and mental harm to
millions of Jews, with intent to exterminate the Jewish

(4) that during the years 1943 and 1944 he, together with
others, “took measures to prevent births among Jews, by
directing that births be banned and pregnancies terminated
among Jewish women in the Therezin Ghetto, with intent to
exterminate the Jewish People.”

The acts constituting the crimes in Group Two are as

(5) that during the period from August 1941 to May 1945
“he, together with others, caused in the places mentioned in
Clause (1), the murder, extermination, enslavement,
starvation and deportation of the Jewish civilian

(6) that during the period from December 1939 to March 1941
“he, together with others, caused the deportation of Jews to
Nisko, and the deportation of Jews from the areas in the
East annexed to the Reich, and from the Reich area proper,
into the German-occupied area in the East, and to France;”

(7) that in carrying out the above-mentioned activities he
persecuted Jews on national, racial, religious and political

(8) that during the period from March 1938 to May 1945 in
the places mentioned above “he, together with others, caused
the plunder of the property of millions of Jews through mass
terror, linked with the murder, destruction, starvation and
deportation of those Jews;”

(9) that “during the years 1940-1942 he, together with
others, caused the expulsion of hundreds of thousands of
Poles from their homes;”

(10) that in 1941, he, together with others, caused “the
expulsion of more than fourteen thousand Slovenes from their

(11) that during World War II he, together with others,
caused the expulsion of “tens of thousands of Gypsies from
Germany and German-occupied areas and their transportation
to the German-occupied areas in the East;”

(12) that in 1942 “he, together with others, caused the
expulsion of 93 children of the Czech village Lidice.”

The acts comprised in Group Three of the crimes are:

That “he committed the acts of persecution, expulsion and
murder mentioned in Counts 1-7, so far as these were done
during World War II, against Jews from among the populations
of the countries occupied by the Germans and by the other
Axis States.”

The acts comprised in Group Four are:

That as from May 1940 he was “a member of three Nazi police
organizations which were declared criminal organizations by
the International Military Tribunal which tried the major
war criminals, and as a member of such organizations he took
part in acts declared criminal in Article 6 of the London
Charter of 8 August 1945.”

3. The Appellant has appealed to this Court against both the
conviction and the sentence.

4. The oral and written contentions of learned Counsel who
supported the appeal, Dr. Servatius, may, insofar as they
are directed against the conviction, be divided under two

(1) Purely legal contentions, the principal object of which
is to undermine the basis of the jurisdiction of a court in
Israel to try the Appellant for the crimes in question.

(2) Factual contentions of which the object is, in essence,
to invalidate the finding of the District Court that there
was no foundation for the defence of the Appellant that he
played the part of a `small cog’ in the machine of Nazi
destruction, that in all the above-mentioned activities he
functioned as a junior official, and one without any
initiative of his own, and that nothing but the compulsion
of an order and blind obedience to a command from above
guided him in the performance of his task through all its

With reference to these contentions, Counsel for the
Appellant has asked this Court for leave to produce new
evidence at the stage of the appeal. At the conclusion of
his argument we decided to refuse this application, and the
reasons for our decision will be set out below.

5. The District Court has, in its Judgment, dealt with both
categories of contentions in an exhaustive, profound and
most convincing manner. We should say at once that we fully
concur, without hesitation or reserve, in all its
conclusions and reasons, because they are fully supported by
copious judicial precedents that were cited in the Judgment
and by the substantial proof culled and abstracted out of
the monumental mass of evidence produced to the Court.
Moreover, we are in duty bound to state that, were it not
for the grave outcome of the decision of the Court
constituting the subject of the Appeal, we would have seen
no need whatever to formulate our opinion separately and in
our own language – as we contemplate doing – for the
conclusions of the District Court rest on solid foundations.
Nor is it superfluous for us to take this opportunity and to
express our appreciation of the immense effort expended by
the learned Judges, who tried the case in the lower Court,
in the actual conduct of the arduous and wearying
proceedings before them. As to the contribution made to
this responsible task by the Attorney General and his
assistants on the one hand, and Counsel for the Defence on
the other, appropriate and significant observations have
already been embodied in the Judgment of the District Court,
and we can do no more than associate ourselves with them.

6. Most of the legal contentions of Counsel for the
Appellant concentrate on the argument that the District
Court, in assuming jurisdiction to try the Appellant, acted
contrary to the principles of international law. These
contentions are as follows:

(1) The Law of 1950, which is the only source of the
jurisdiction of the Court in this case, constitutes ex post
facto penal legislation, which established as offences acts
that were committed before the State of Israel came into
existence; therefore, the validity of this Law is limited to
citizens of Israel alone.

(2) The offences for which the Appellant was tried are in
the nature of `extra-territorial offences,’ that is to say,
offences that were committed outside the territory of Israel
by a citizen of a foreign state; and even though the above-
mentioned Law confers jurisdiction in respect of such
offences, it conflicts, in so doing, with the principle of
territorial sovereignty, which postulates that only the
country within whose territory the offence was committed, or
to which the offender belongs – in this case, Germany – has
jurisdiction to punish therefor.

(3) The acts constituting the offence of which the
Appellant was convicted were, at the time of their
commission, acts of state.

(4) The Appellant was brought to Israeli territory, to be
tried for the offences in question, unwillingly and without
the consent of the country in which he resided, through
agents of the State of Israel who acted on the orders of
their government.

(5) The Judges of the District Court, being Jews and
feeling a sense of affinity with the victims of the plan of
extermination and Nazi persecution, were psychologically
incapable of giving the Appellant an objective trial.

7. We reject all these contentions.

A brief reply to the first two of these – and we shall deal
with each separately – will be found in paragraph 10 of the

“The Court has to give effect to a law of the Knesset, and
we cannot entertain the contention that such a law conflicts
with the principles of international law.”

In the submission of Counsel for the Appellant this reply is
mistaken, for – he argues – where there is such a conflict
it is imperative to give preference to the principles of
international law. We do not agree with this view.
According to the law of Israel, which is identical on this
point with English law, the relationship between municipal
law and international law is governed by the following

(1) The principle in question becomes incorporated into the
municipal law and a part of that law only after it has
achieved general international recognition. “The municipal
courts of a particular state” said Mr. Justice Dunkelblum in
Motion 41/49 (Shimshon Ltd. v. Attorney General, 4 Pesakim,
vol. 4, p. 143, pp. 145, 146)

“will recognize the principles of international law and will
decide in accordance with those principles only if they have
been agreed to by all other civilized peoples, so that it is
a necessary assumption that such principles have also been
accepted by that state. A principle of international law
must therefore be established by sufficient proof to justify
the conclusion…that it is recognized and well known by the
majority of states.”

(See also judgment of Lord Alverstone in West Rand Gold
Mining Co. v. Rex (1905) 2 K.B. 391, 406-7; and that of Lord
Macmillan in The Cristina (1938) 1 All E.R. 719, 725).

(2) This, however, only applies where there is no conflict
between the provisions of municipal law and a rule of
international law. But where such a conflict does exist, it
is the duty of the court to give preference to and apply the
laws of the local legislature (see Israeli and English
precedents mentioned in paragraph 10 of the Judgment).
True, the presumption must be that the legislature strives
to adjust its laws to the principles of international law
which have received general recognition. But where a
contrary intention clearly emerges from the statute itself,
that presumption loses its force, and the court is enjoined
to disregard it.

(3) On the other hand, in view of the above-mentioned
presumption, a local statutory provision, which is open to
equivocal construction and whose content does not demand
another construction, must be construed in accordance with
the rules of public international law. (Amsterdam v.
Minister of Finance, Piske Din, vol. 6, pp. 945, 966;
Lauterpacht-Oppenheim, 8th edition, vol. 1, p. 41, para.
21a). It should be noted that this rule of construction has
no relevance to this case, since the nature of the law in
question as one which established extra-territorial offences
with retroactive effect is not in doubt.
It follows from the second rule that even if Counsel for the
Appellant was right in contending that the character of the
law as described above is repugnant to international law,
even then this contention cannot avail him.

8. We reach the same conclusion also in accordance with the
first rule. For the sake of convenience, we shall state the
grounds of our conclusions separately in respect of each of
the two above-mentioned contentions of Counsel for the
Appellant. As to the first contention, the reply must be
that the principle nullum crimen sine lege, nulla poena sine
lege, insofar as it negates penal legislation with
retroactive effect, has not yet become a rule of customary
international law:

“There is no rule of general customary international law
forbidding the enactment of norms with retrospective force,
so called ex post facto laws” (Kelsen, Peace through Law
(1944) p. 87).

“There is clearly no principle of international law
embodying the maxim against retroactivity of criminal law”
(Julius Stone, Legal Controls of International Conflict
(1959) p. 369).

It is true that in many countries the above-mentioned
principle has been embodied in the constitution of the state
or in its criminal code, because of the considerable moral
value inherent in it, and in such countries the court may
not depart from it by one iota. (See Cr.A. 53/54: Eshed,
Merkaz Zmani L’tahbura v. Attorney General, Piske Din, vol.
8, pp. 785, 819, 830-832.) But this state of affairs is not
universal. Thus, in the United Kingdom, a country whose
system of law and justice is universally recognized as being
of a high standard, there is no constitutional limitation of
the power of the legislature to enact its criminal laws with
retrospective effect, and should it do so, the court will
have no power to invalidate them (C.K. Allen, Law in the
Making, 5th ed., p. 444). True, in those countries, too,
there is widespread recognition of the moral value of the
principle inherent in the above-mentioned maxim. But that
recognition has become legally effective only to the extent
that that maxim constitutes a rule of the interpretation of
statutes. That is to say: Where there is a doubt as to the
intention of the legislature, the court is directed not to
construe the criminal statute under its consideration so as
to include within its purview an act that was committed
prior to its enactment. (Queen v. Griffiths (1891) 2 Q.B.
145, 148; Allen ibid., pp. 443-444). Similarly, the British
Parliament usually avoids passing a criminal statute with
retroactive effect, and it will do so only in an exceptional
case where the object of salus populi impels the taking of
this course, as stated by Willes J. in Phillips v. Eyre
(L.R. 6 Q.B. 1, 25) which is cited in paragraph 7 of the

Therefore, if it is the contention of Counsel for the
Appellant that we must apply international law as it is, and
not as it ought to be from the moral point of view, then we
must reply that precisely from a legal point of view there
exists no such rule of international law; it follows
necessarily that the above-mentioned principle cannot be
deemed to be part of the Israel municipal law by virtue of
international law, but that the extent of its application in
this country is the same as in England.

Last-Modified: 1999/06/15