And in the case of the German Foreign Ministry, known as
the Wilhelmstrasse Prozess, Case No 11, in the Green Series
Vol. 14, pages 320-321:
“Is there personal responsibility for those who plan,
prepare, and initiate aggressive wars and invasions?
The defendants have ably and earnestly urged that heads
of states and officials thereof cannot be held
personally responsible for initiating or waging
aggressive wars and invasions because no penalty had
been previously prescribed for such acts. History,
however, reveals that this view is fallacious…”
“But even if history furnished no example, we would
have no hesitation in holding that those who prepare,
plan, or initiate aggressive invasions, and wage
aggressive wars, and those who knowingly participate
therein are subject to trial, and if convicted, to
And even if Adolf Eichmann were to stand trial in that
country where Defence Counsel wants to place him on trial –
in the Federal Republic – even there he would not be able to
find justification or defence in the argument that we have
In one of the latest judgments of the Supreme Court of West
Germany, which the Court will find in Neue Juristische
Wochenschrift of 23 February 1961, page 373, the question of
the application of Section 47 of the German military code
was discussed. We shall shortly submit Section 47 to you.
Section 47 lays down that an order constitutes
justification; an illegal order does not constitute
justification for an illegal act. It was so before the
Nazis; it was so in the time of the Nazis and it is so
today. It even applied to the special disciplinary laws of
the SS. And this is what the German Supreme Court had to say
and I quote the original:
“Zur Bestrafung nach Artikel 47 genuegt es schon, wenn
der Untergebene in seiner Vorstellungs – und
Begriffswelt auf Grund der ihm eigenen und gelaeufigen
Denkweise zu dem Bewusstein durchgedrungen ist, dass
die befohlene Handlung etwa Unrechtes darstellt” (That
is to say if a man has a feeling that what he is
ordered to do…
Presiding Judge: It says there: according to his concepts.
Attorney General: According to his concepts.
To be punished in terms of Section 47 it is sufficient if
the subordinate according to his ideas and concepts, in his
own familiar way of thinking, has become aware that the act
which he has been ordered to perform is wrongful.
Let Adolf Eichmann come and explain whether the murder of
millions, their deportation to concentration camps and their
killing by asphyxiation – whether, according to his feelings
and conscience – these were legal or not.
I also have before me the judgment of the District Court of
Ulm which tried a number of persons accused on a small
segment of the extermination front. This was handed down on
10 August 1959. It is true that this was only the Ulmer
Landesgericht (the District Court of Ulm).
Presiding Judge: Would you please submit this to us, so
that we may examine it?
Attorney General: Yes. At the foot of page 145 and on page
146. The Court says that the Accused could not argue…
Presiding Judge: Is all this the judgment, from page 145
Attorney General: Yes.
“Die Angeklagten koennen auch nicht mit Erfolg als
Rechtfertigsgrund geltend machen, Hitler’s Befehl sei
oberstes Gebot gewesen” (The accused also cannot
succeed with the defence, that Hitler’s order was a
Presiding Judge: After you have given us the judgment of
the Supreme Court, then perhaps…
Attorney General: There is here, a detailed analysis of acts
which are very similar to the deeds for which the Accused
has been brought to trial. I want to show that even if the
wishes of the Defence Counsel were to be fulfilled, this
argument at all events would not have availed him.
Consequently this whole argument – to the effect that his
position in Israel is much worse because we have a law for
punishing Nazis which deprives him of certain lines of
defence – is not correct. He would not have these defences
anywhere, not even in that country where he wants to be
tried, but which has not made any demand at all to try him
and which has left the right of trying him to Israel.
Presiding Judge: But, again, as my colleague Judge Halevi
has pointed out, the problem is slightly different. The
problem is nevertheless one of international law. It seems
to me that it is not a complete reply to say that a German
court would not have recognized such a defence.
Attorney General: I have already said, two days ago, that
from the point of view of replying to this Court, I am
saying simply: “There is the law and you, Judges of Israel
are required to act in accordance with the law.”
Presiding Judge: If that is the case, we do not need these
Attorney General: I agree that all this is unnecessary. But
it was said here that the Accused will not have a fair
trial. He cannot plead this defence before you, as I
maintain. He cannot plead this defence anywhere.
Presiding Judge: Good.
Attorney General: To sum up, international society which has
condemned the persecution of Jews has openly expressed its
view that Adolf Eichmann should stand trial. He is standing
trial according to a law which today is the heritage of all
civilized nations. His argument that he was brought here
forcibly does not make any difference. I have brought before
you many quotations from judgments which show that by
whichever way a man has been brought within the Court’s
jurisdiction – by private individuals, by persons who are
unofficial agents of the Government, even by the
Government’s official representatives – any such way cannot
be subjected to the scrutiny of the Court and is not
decisive on the question of guilt or of competence. The
Court before whom the man is accused has jurisdiction, and
where he is indicted according to law and when he is tried
before a competent Court from the point of view of
procedure, all these requirements have been fulfilled in the
case before us.
I dwelt at length on the territorial principle. These laws,
by their very nature, must be exterritorial, and there is
nothing to disqualify legislation of this sort, in regard to
other laws as well. The “Lotus” case proves this.
Furthermore, the right to try Nazi criminals according to
rules which are continually being crystallized, is a
universal right of all civilized nations. The State of
Israel has the right to try the man who attempted to
annihilate the Jewish people, no less, and perhaps more,
than any other country.
Presiding Judge: With regard to exterritoriality, you can
also rely on the German criminal law which also punishes
acts aimed against the German people which were committed
abroad by foreigners.
Attorney General: I am aware of this, Your Honour, but I am
not very keen to rely on this law since it is a Nazi law.
Judge Halevi: A Nazi law?
Attorney General: It was adopted in the year 1940, and
although it is in force to this day…
Judge Halevi: To this day?
Attorney General: …I did not want to make a comparison
especially between the law for the punishment of the Nazis,
and a law enacted in Germany by the Nazis, even if it is in
force to this day. But there is a long list of other laws. I
shall submit this list to you – all the statute books of
enlightened, civilized nations, we have collected the Codes
themselves, together with the list – and we shall submit to
the Court this stack of books in order to establish that
such legislation is not exceptional and that it is permitted
and valid. As to the fairness of the trial, I deeply regret
what Defence Counsel has had to say. Although it was clothed
in delicate and polite manner – “the Accused is afraid that
he will not have a fair trial here.”
Jewish judges who are bound by the principle that there
should be “one law for the person born in the land and for
the stranger in your midst” and who are faithful to the
principle of doing justice will administer justice to Adolf
Eichmann as well. If he is apprehensive, possibly his fear
is well-founded. But he would also have had this well-
founded fear, if he were to stand before a tribunal in any
other country and in any other place.
I request the Court to reject the argument for the Defence
and to decide that it possesses jurisdiction to try the
Accused; and to order him to plead to the indictment.
Presiding Judge: Thank you, Mr. Hausner. I have one
question of fact which occurs to me in relation to many of
the American authorities you quoted: what about the
extradition treaty between Israel and Argentina – is it
still in force?
Attorney General: No Your Honour. It was initialled, but the
treaty has not yet been ratified.
Presiding Judge: Perhaps you can give me the dates.
Attorney General: As far as I can remember – and I am ready
to check this – the treaty was initialled in 1958, but there
has been no ratification. Therefore it does not apply.
Presiding Judge: There has been no ratification to this
Attorney General: I believe – to this day. If the Court is
interested in the exchange of Notes between us and
Argentina, these were published in the official records of
the United Nations and I am prepared to submit this volume
to the Court. Of course it does not contain the Notes that
were exchanged after June 1960, and not that particular Note
which liquidated the incident, which I submitted to you
Presiding Judge: But is there anything there about the
Attorney General: No, there is nothing.
Presiding Judge: At all events, please hand in the volume –
it will do no harm.
A further question – does Israel have an extradition
agreement with West Germany?
Attorney General: No, we do not.
Presiding Judge: Dr. Servatius, please.
Dr. Servatius: Mr. President, Judges of the Court. At this
stage of the proceedings we are dealing only with the
jurisdiction of the Court. We are not dealing with the guilt
of the Accused and the fairness of the trial. Therefore, my
remarks will concern only the question of jurisdiction. The
Attorney General has brought forward, with weighty
arguments, the conception that the Nazi and Nazi
Collaborators (Punishment) Law fills a legal vacuum,
according to him it follows…
Presiding Judge: Please repeat that last sentence – it was
said rather quickly.
Judge Halevi: The last sentence was: The Israel law follows
in the wake of the London Agreement and in the wake of the
Presiding Judge: Please continue.
Dr. Servatius: An examination will show that the vacuum
existing in international law after the Second World War was
not actually filled. It appears that the London Charter
deals only with the law of occupation which could be applied
only to the vanquished. The period following showed that
atrocities in other areas of the world have remained
unheeded. Customs and practices of those exercising
political power have remained as they were. There has been
no progress in the legal development which the world
anticipated. The Genocide Convention did not come into force
in accordance with the principle of universal law – it
withered away through the principle of territoriality. At
the United Nations the drafts of the Commission on Human
Rights and of the International Criminal Law Commission
remain as a mere wish and an attempt at action by idealists.
At the same time there is the threat of a danger which must
be avoided – in various parts of the world. But the leaders
of the countries are not concerned.
The Prosecution has also expressed the attitude that even on
its own initiative the State of Israel is entitled to fill
the vacuum by means of its own law. This action is a
requirement enshrined in natural law. But restrictions have
been placed upon this natural law by international law. For
the purpose of generating the right of bringing a person to
trial, according to international law, there must exist some
connection with the person committing the act. The right of
bringing a man to trial may reach out beyond the territory.
This fact is illustrated by the principle of protection. It
arises out of the “Lotus” case which was quoted by the
Prosecution. The same applies to the case of a currency
offence, by a Belgian woman in Holland, and also to the
matter of treason in the Joyce case in England. All these
instances were cited in the Prosecution’s argument. An
unrestricted extension of the right to bring a person to
trial is contrary to international law. Similarly, the Nazis
and Nazi Collaborators (Punishment) Law cannot create in the
absence of a recognized connecting link, any sovereign right
of punishment, and hence any competence in respect of
persons outside jurisdiction.
Presiding Judge: One of the recognized principles is – the
personal principle; and a subsidiary principle is – the
passive personal principle. What about this principle in
respect of our law, namely the protection of victims of
criminal acts? This principle is very close to the principle
of protection. I am going according to the usual division.
Dr. Servatius: But, Your Honour, the victims were not
citizens of the state at the time they endured their
Judge Halevi: Is this not a purely formal argument?
Dr. Servatius: But surely the law is based and exists on
formal issues, and this is one of the matters which the
Court will have to consider very seriously.
Judge Halevi: Sir, one more question – the same question
which I asked the Attorney General in relation to the German
criminal law, Paragraph 4, which is still in force today. I
am not of the opinion that this is a Nazi law, despite the
fact that it was enacted in the Nazi period. In Paragraph 4
it says: “Fuer eine von einem Auslaeder in Auslande
begangene Strafrat gilt das deutsche Strafrecht, wenn sie
durch das Recht des Tatorts mit Strafe bedroht …ist und
wenn die Straftat gegen das deutsche Volk oder gegen einen
deutschen Staatsangehoerigen gerichtet ist…” (The German
criminal law is applicable to an offence committed by
foreigners abroad if it is punishable under the law of the
place where it is committed…and if the offence is directed
against the German people or against a German national).
Dr. Servatius: This law goes very far and fits German
jurisdiction at the present time. It seems that it would not
be possible to apply this law to the circumstances here,
since we are concerned with people who were not citizens of
this country at the time.
Judge Halevi: But the German people is also mentioned
there; not merely German citizens, but also the German
Dr. Servatius That is correct. But further, the State of
Israel did not exist at the time. This too is a
contradiction arising out of the formal law, and the Court
will have to examine to what extent it recognizes this
Judge Halevi: Yes, but the German people is a much wider
concept than the German State, in the same way as the Jewish
people is a different concept from the State of Israel.
Dr. Servatius: If I may be permitted to reply to this, the
concept of the German people is not a legal concept in
German law. The reference is not to the German people as a
whole but to the people of the German State, and this is now
restricted to the area of the Federal republic.
If the matter were feasible from the legal point of view
without some point of support recognized by the law of
nations then even the newly-set-up states would be entitled
to enact laws for bringing to justice all those described
today as “colonial overlords.” The law of nations will not
The Prosecution pointed to the fact that a number of
countries, after the War, enacted valid legislation for the
purpose of closing existing gaps. But this only refers to
those states which were occupied by Germany during the War.
In fact these laws were merely laws for implementing the
London Agreement and analogous arrangements after the War.
The tendency to observe the restrictions of the law of
nations is always maintained. Here, in the case of the
Accused Eichmann, no vacuum of this nature exists. There
exists a competent German court, and the German court judges
in accordance with valid existing laws. The Prosecution
itself indicated this. A large number of persons have been
brought to trial before a competent German court, and have
actually been judged, having been accused of crimes similar
to those with which the Accused is charged.
There is another point. The court must be authorized to
examine the validity of the law upon which the right of
prosecuting an accused rests. Not everything that the
legislator decides is necessarily law. There are limits in a
State observing the rule of law.