Judgment 1, Eichmann Adolf

Criminal Case No. 40/61

Before His Honour JUDGE MOSHE LANDAU (Presiding)

For the Prosecution: THE ATTORNEY GENERAL

The Accused: ADOLF, son of Karl Adolf, EICHMANN


The references in the Judgment are to the official record in

Adolf Eichmann has been brought to trial in this Court on
charges of unsurpassed gravity – charges of crimes against
the Jewish People, crimes against humanity, and war crimes.
The period of the crimes ascribed to him, and their
historical background, is that of the Hitler regime in
Germany and in Europe, and the counts of the indictment
encompass the catastrophe which befell the Jewish People
during that period – a story of bloodshed and suffering
which will be remembered to the end of time.

This is not the first time that the Holocaust has been
discussed in court proceedings. It was dealt with
extensively at the International Military Tribunal at
Nuremberg during the Trial of the Major War Criminals, and
also at several of the trials which followed; but this time
it has occupied the central place in the Court proceedings,
and it is this fact which has distinguished this trial from
those which preceded it. Hence also the trend noticed
during and around the trial, to widen its range. The desire
was felt – understandable in itself – to give, within the
trial, a comprehensive and exhaustive historical description
of events which occurred during the Holocaust, and in so
doing, to emphasize also the inconceivable feats of heroism
performed by ghetto-fighters, by those who mutinied in the
camps, and by Jewish partisans.

There are also those who sought to regard this trial as a
forum for the clarification of questions of great import,
some of which arose from the Holocaust, while others, of
long standing but which have now emerged once again in more
acute form, because of the unprecedented sufferings which
were visited upon the Jewish People and the world as a whole
in the middle of the Twentieth Century.

How could this happen in the light of day, and why was it
just the German people from which this great evil sprang?
Could the Nazis have carried out their evil designs without
the help given them by other peoples in whose midst the Jews
dwelt? Would it have been possible to avert the Holocaust,
at least in part, if the Allies had displayed a greater will
to assist the persecuted Jews? Did the Jewish People in the
lands of freedom do all in its power to rally to the rescue
of its brethren and to sound the alarm for help? What are
the psychological and social causes of the group-hatred
which is known as anti-Semitism? Can this ancient disease
be cured, and by what means? What is the lesson which the
Jews and other nations must draw from all this, as well as
every person in his relationship to others? There are many
other questions of various kinds which cannot even all be

2. In this maze of insistent questions, the path of the
Court was and remains clear. It cannot allow itself to be
enticed into provinces which are outside its sphere. The
judicial process has ways of its own, laid down by law, and
which do not change, whatever the subject of the trial may
be. Otherwise, the processes of law and of court procedure
are bound to be impaired, whereas they must be adhered to
punctiliously, since they are in themselves of considerable
social and educational significance, and the trial would
otherwise resemble a rudderless ship tossed about by the

It is the purpose of every criminal trial to clarify whether
the charges in the prosecution’s indictment against the
accused who is on trial are true, and if the accused is
convicted, to mete out due punishment to him. Everything
which requires clarification in order that these purposes
may be achieved, must be determined at the trial, and
everything which is foreign to these purposes must be
entirely eliminated from the court procedure. Not only is
any pretension to overstep these limits forbidden to the
court – it would certainly end in complete failure. The
court does not have at its disposal the tools required for
the investigation of general questions of the kind referred
to above. For example, in connection with the description
of the historical background of the Holocaust, a great
amount of material was brought before us in the form of
documents and evidence, collected most painstakingly, and
certainly in a genuine attempt to delineate as complete a
picture as possible. Even so, all this material is but a
tiny fraction of all that is extant on this subject.
According to our legal system, the court is by its very
nature “passive,” for it does not itself initiate the
bringing of proof before it, as is the custom with an
enquiry commission. Accordingly, its ability to describe
general events is inevitably limited. As for questions of
principle which are outside the realm of law, no one has
made us judges of them, and therefore no greater weight is
to be attached to our opinion on them than to that of any
person devoting study and thought to these questions.

These prefatory remarks do not mean that we are unaware of
the great educational value, implicit in the very holding of
this trial, for those who live in Israel as well as for
those beyond the confines of this state. To the extent that
this result has been achieved in the course of the
proceedings, it is to be welcomed. Without a doubt, the
testimony given at this trial by survivors of the Holocaust,
who poured out their hearts as they stood in the witness
box, will provide valuable material for research workers and
historians, but as far as this Court is concerned, they are
to be regarded as by-products of the trial.

3. Before we deal with the case itself, we desire to express
our appreciation to the representatives of both parties, who
laboured in the presentation of this case. The Attorney
General, Mr. Hausner, and his assistants, Dr. Robinson, Mr.
Bar-Or, Mr. Bach, and Mr. Terlo, who helped in the conduct
of the case, carried an enormous burden on their shoulders,
and displayed absolute mastery of the huge amount of legal
and factual material prepared for them by the police
investigators, who toiled before them in a manner which also
deserves praise. The Attorney General himself emerged
honourably from the dilemma, to which we alluded above, and
which he, too, certainly felt in all its full impact. In
spite of a slight deviation here and there from the narrow
path which the Court saw as its duty to set, Mr. Hausner
conducted the prosecution in its stages as a jurist and on a
very high professional level. In his brilliant opening
speech, which was eloquent and broad in perspective, and
again in his concluding statement, he gave vent also to the
deep feelings which stir the entire nation. Similarly, we
wish to express our appreciation to Counsel for the Defence,
Dr. Servatius, and his assistant, Mr. D. Wechtenbruch. Dr.
Servatius, who stood almost alone in this strenuous legal
battle, in an unfamiliar environment, always directed
himself to the essence of the matter, and refrained from
unnecessary controversy over matters which did not seem
vital to him for the defence of his client, thereby
affording valuable assistance to the Court. Thus even some
uncalled-for notes in his concluding speech, which jarred on
our ears, could not detract from the worthy and serious
impression made by his arguments for the Defence as a whole.

4. At the outset, we must state the reasons for our Decision
(No. 3 given on 17 April 1961, Session 6) relating to our
jurisdiction to try this case. It is the duty of the Court
to examine its competence ex officio even without the
question having been raised by the Accused; indeed, even if
the Accused had consented to be tried by this Court, we
would not have been entitled to try him unless the law
empowers us so to do. The law which confers on us
jurisdiction to try the Accused in this case is the Nazis
and Nazi Collaborators (Punishment) Law 5710-1950
(hereinafter referred to, for short, as “the Israeli Law,”
“the Law in question” or “the Law”).

Section 1(a) of the Law provides:

“A person who has committed one of the following
offences (1) during the period of the Nazi regime in a
hostile country, carried out an act constituting a
crime against the Jewish People;

(2) during the period of the Nazi regime, carried out
an act constituting a crime against humanity, in a
hostile country;

(3) during the period of the Second World War, carried
out an act constituting a war crime, in a hostile

is liable to the death penalty.”

The three above-mentioned classes of crimes – crime against
the Jewish People, crime against humanity, war crime – are
defined in Section 1(b) (see infra) –

Section 3(a) provides:

“A person who, during the period of the Nazi regime,
was a member of, or held any post or exercised any
function, in a hostile organization, in a hostile
country, is liable to imprisonment for a term not
exceeding seven years.”

“A hostile organization” is defined in Section 3(b) (see
infra). Section 16 defines the terms “the period of the
Nazi regime,” “the period of the Second World War,” and “a
hostile country.”

5. In Criminal Appeal 22/52, Honigman v. Attorney General (7
Piske Din 296, 303), Justice Cheshin stated:

“The Law in question is designed to make it possible to
try in Israel Nazis, their associates and their
collaborators for the murder of the Jewish People…and
for crimes against humanity as a whole…this
particular legislation is totally different from any
other usual legislation in criminal codes: The Law is
retroactive and extra-territorial…”

Indeed, the expressions “in a hostile country,” “during the
period of the Nazi regime” and “during the period of the
Second World War,” which define the application of the Law
in point of place and in point of time, indicate
unequivocally that the crimes are “foreign crimes” and that
the Law has retroactive application. These two elements do
indeed diverge from the characteristics of usual criminal
legislation which generally looks to the future and not – or
at least not only – to the past; to the home country and not
– or at least not only – abroad; but these elements
necessarily derive from the very object of the Law for the
Punishment of Nazis and their Collaborators.

6. Under Sections 6 and 7 of the Criminal Code Ordinance,
1936, the ordinary jurisdiction of the courts of Israel
extends to any act committed in whole or in part within the
boundaries of the state or within the three nautical miles
territorial coastal limit, but Section 3(b) adds that
nothing in the Ordinance shall derogate from the “liability
of any persons to be tried and punished for any offence
according to the provisions of the law on the jurisdiction
of the Israeli courts with respect to acts committed outside
the ordinary jurisdiction of these courts.” One of the laws
which establishes the jurisdiction of Israeli courts with
respect to certain classes of offences committed abroad is
the Criminal Law Amendment (Foreign Offences) Law, 5716-
1955. Another law of this order is the Law in question

7. The question as to whether the Israeli legislator may
enact a criminal law with retroactive effect was considered
in the first criminal case heard in this District Court
after the establishment of the State and in the first appeal
lodged with the Supreme Court of Israel, Criminal Appeal
1/48, Sylvester v. Attorney General (Pesakim I, 513, 528).
Justice Smoira, the first President of the Supreme Court,
said in his judgment, inter alia:

“As regards the distinction between retroactive laws
and ex post facto laws… I now revert to the judgment
of Justice Willes in Phillips v. Eyre (L.Q. (1871) 6
Q.B. 1, at p. 25). He stated:

“Justice Blackstone (Comm. 46) describes laws ex post
facto of this objectionable class as those by which
`after an action indifferent in itself is committed,
the legislator then for the first time declares it to
have been a crime, and inflicts a punishment upon the
person who has committed it. Here it is impossible
that the party could foresee that an action, innocent
when it was done, should be afterwards converted to
guilt by a subsequent law; he had, therefore, no cause
to abstain from it and all punishment for not
abstaining must of consequence be cruel and unjust…’
In fine, allowing the general inexpediency of
retrospective legislation, it cannot be pronounced
naturally or necessarily unjust. There may be
occasions and circumstances involving the safety of the
state, or even the conduct of individual subjects, the
justice of which prospective laws, made for ordinary
occasions and the usual exigencies of society, for want
of prevision fail to meet, and in which the execution
of the law as it stood at the time may involve
practical public inconvenience and wrong, summum jus
summa injuria. Whether the circumstances of the
particular case are such as to call for special and
exceptional remedy is a question which must in each
case involve matter of policy and discretion fit for
debate and decision in the parliament which would have
had jurisdiction to deal with the subject matter by
preliminary legislation, and as to which a court of
ordinary municipal law is not commissioned to inquire
or adjudicate.”

“… I am unable to add with gratification,” continued
the President, “that in acknowledging the retroactive
effect of the law in question I am far from
acknowledging a `barbaric’ law, for it is precisely in
pursuance with Justice Blackstone’s definition that I
hold that it cannot be said that the act of which the
appellant was accused was `an action indifferent in
itself, and only subsequently the legislator declared
it for the first time to have been a crime.’ The
legislation with retrospective effect, here dealt with,
has not created a new crime which had not hitherto been
known in the Occupied Area of Jerusalem, and it cannot
therefore be said that the person who commits the act
of which the appellant is accused did not have a
criminal intent (mens rea), because he did not and
could not know that the act he was doing was a criminal
act. On the contrary, it stands to reason that he who
has actually committed such an act knew that an act of
this kind is a crime. I, therefore, hold that by
concluding that the Official Secrets Ordinance has
retroactive effect, I do not come in conflict with the
rules of natural justice or elementary equity.”

The President gave his judgment before the enactment of the
Nazis and Nazi Collaborators (Punishment) Law, but his
remarks are apt and relevant to our case. There is no
subject of which it can be said with greater justice that
“the usual laws enacted in ordinary circumstances and for
the usual needs of society fall short of meeting the
dictates of justice and law” (ibid., p. 532) than the
subject of the Nazi crimes against humanity in general, and
the Jewish People in particular. Not one of the crimes
defined in the Law in question was, in the words of
Blackstone, “an indifferent action when committed, and
subsequently declared for the first time by the legislator
to have been a crime.” Neither has the retroactive
legislation herein dealt with “created a new crime which had
not hitherto been known” in Germany or German-occupied
territories. On the contrary, all the above_mentioned
crimes constituted crimes under the laws of all civilized
nations, including the German people, before and after the
Nazi regime, while the “law” and criminal decrees of Hitler
and his regime are not laws, and have been set aside with
retroactive effect even by the German courts themselves (see

It cannot be said that the perpetrators of the crimes
defined in the Law in question “could not have a mens rea
because they did not and could not know that what they were
doing was a criminal act” (ibid). The extensive measures
taken by the Nazis to efface the traces of their crimes,
such as the disinterment of the dead bodies of the murdered
and their cremation into ashes, or the destruction of the
Gestapo archives before the collapse of the Reich, clearly
prove that the Nazis knew well the criminal character of
their enormities. A law that authorizes the punishment of
Nazis and their collaborators does not “conflict,” through
its retroactive application, “with the rules of natural
justice,” in the words of the President; on the contrary, it
enforces the dictates of elementary justice.

8. Learned Counsel does not ignore the fact that the Israeli
Law applicable to the acts attributed to the Accused vests
in us the jurisdiction to try this case. His contention
against the jurisdiction of the Court is not based on this
Law, but on international law. He contends –

(a)that the Israeli Law, by inflicting punishment for
acts committed outside the boundaries of the state and
before its establishment, against persons who were not
Israeli citizens, and by a person who acted in the
course of duty on behalf of a foreign country (“Act of
State”) conflicts with international law and exceeds
the powers of the Israeli legislator;

(b) that the prosecution of the Accused in Israel upon
his abduction from a foreign country conflicts with
international law and exceeds the jurisdiction of the

9. Before entering upon an analysis of these two contentions
and the legal questions involved, we will clarify the
relation between them.

These two contentions are independent of each other. The
first contention, which negates the jurisdiction of the
Court to try the Accused for offences against the Law in
question, is not bound up with, or conditional upon, the
circumstances under which he was brought to Israel. Even
had the Accused come to this country of his own free will,
say as a tourist under an assumed name, and had he been
arrested here upon the verification of his true identity,
the first contention of Counsel that the Israeli Court has
no jurisdiction to try him for any offences against the Law
in question would still stand. The second, additional,
contention is that no matter what the jurisdiction of the
Israeli Court is to try offences attributed to the Accused
in ordinary circumstances, that jurisdiction is in any case
negated by reason of the special circumstances connected
with the abduction of the Accused in a foreign country and
his prosecution in Israel. We will therefore deal with
these two questions seriatim.

Last-Modified: 1999/05/27