Presiding Judge: Dr. Servatius, for our part, so it seems
to me, this is going to be a question of Israel law which in
this case derives its authority from the English common law.
The Attorney General read to us from Dicey’s book about the
attitude of the common law to this question. How do you
reply to that?
Dr. Servatius: To this I answer: If according to the common
law approach, in case of doubt the domestic law is
preferable to international law, then the development of
modern law requires an examination of this principle. It is
essential that preference should be given to international
law over domestic law, if we aspire to world-wide order in
international law. The Constitution of the Federal republic
of Germany aims at that from a legal point of view. This is
a basic principle demanding implementation everywhere.
The Attorney General produced an abundance of decisions
designed to prove the competence of the Court according to
customary procedure of international law. These precedents
relate to a large extent to the conditions prevailing
between the various states of the United states of America.
These are cases in which an accused, because of an act
committed in his state, was brought before the only court
competent to try him. These are cases in which the accused
was brought before a court in his own country. An
examination of the transfer from another state to the state
where he was to be tried is always rejected, since according
to the law of his country the accused does not have a
constitutional right to ask for such an examination.
The case of Lascelles versus Georgia in 1893, a judgment
which has been referred to here, rejects in clear terms the
argument that international law applies to internal
relations between member states of the United States.
Presiding Judge: Mr. Hausner, did you cite this judgment?
Attorney General: I do not remember citing it. I quoted many
cases stating the opposite.
Presiding Judge: We here do not remember Mr. Hausner
quoting this particular judgment amongst the many judgments
Attorney General: But if Defence Counsel so wishes, I am
prepared to produce it within a minute or two.
Presiding Judge: Do you know the case?
Attorney General: Yes, I know it.
Judge Halevi: What is the exact name of the case?
Dr. Servatius: This is the case of Lascelles versus Georgia
of 1893, 148 U.S. Supreme Court Report 687.
Presiding Judge: What does that judgment say?
Dr. Servatius: It states that international law does not
apply, it is stressed that the Constitution of the United
States and its laws are to apply to the accused, and that
the application of international law is not supported by
authoritative legal opinion. I have here the original
English text (reading):
“There are decisions in the state courts, and in some
of the lower federal courts, which have applied to the
rule laid down in U.S. versus Rauscher, supra, to
interstate rendition of fugitives under the
constitution and laws of the United States; but in our
opinion they do not rest upon sound principle, and are
not supported by the weight of judicial authority.” (on
This is clearly confirmed in another case which was quoted
by the Prosecution, Pettibone versus Nicholls of the year
1906. Despite the accused’s kidnapping by officials of the
punishing State, the Court decides that it does not have any
competence to go into the facts.
Attorney General: I think there is a misunderstanding here.
The court decided that it had jurisdiction.
Judge Halevi: Jurisdiction to go into the matter or into
the legality of bringing the person to trial, but not
jurisdiction to examine the question of kidnapping.
Attorney General: Yes, that is it.
Presiding Judge: This is what Dr. Servatius said, and this
is at least what he intended. Thus, seeing that the Court
was not competent to examine the matter from the point of
view of international law, it was competent to examine it
from the point of view of domestic law.
Dr. Servatius: In the case of Pettibone versus Nicholls,
Judge McKenna remained in the minority. In his minority
opinion, a single opinion, he said it would not be right to
send the kidnapped man to the state whence he had been
kidnapped so that he should stand trial there, but this
judge, too, was not relying on international law but on the
Presiding Judge: Does not the Constitution of the United
States refer, in any way, to international law?
Dr. Servatius: I do not know all the details of that
Constitution. I now turn to the cases which are truly
international. Not one of them is a precedent supporting the
competence of the Court. When we come to examine these
cases, one must take note of the following points. There are
some cases where nothing is said of kidnapping because of
the assistance afforded by the very State from which the man
was kidnapped. For example, this was so in Ex parte Elliot
of the year 1949, which was quoted by the Prosecution. An
English deserter was arrested by English officers with the
cooperation of the Belgian police. This was so in the case
of Insul of the year 1934, which was referred to here, in
regard to the arrest of an American in Constantinople by the
Turkish authorities. But all these cases deal with criminal
acts over which the court had jurisdiction according to the
principle of protection. This was so in the case of Chandler
who was charged with the crime of treason against the State
and also in the “Lotus” case. The Prosecution referred here
to the Chandler case.
The Prosecution emphasized piracy, slave trading and so
forth which the arm of law could reach over the entire
world, in terms of the principle of universality. Those
committing such crimes are the enemies of mankind and it is
the obligation of every individual state to see to it that
they will not be able to cause more harm. The Prosecution
believes that in the trial of Eichmann, too, these
principles must be applied. To this I answer that no danger
to mankind is envisaged from the Accused. When Hitler’s
regime came to an end, he became a peace-loving citizen. It
was his bad luck that he was obliged to accept the authority
of an inhuman government. He succeeded in overcoming the
ideas of that government. He freed himself from the oath
through which his obligation of allegiance had been abused.
And now I will express myself on the matter of the Accused’s
declaration which he made in Argentina concerning his coming
to Israel of his own free will. There would be no room to
continue examining the question of jurisdiction of the Court
if in truth and of his own free will, the Accused accepted
for himself the authority of this Court. In the opinion of
the Attorney General the declaration is irrelevant, but
possibly the Court will attach some importance to it and
therefore I will express my stand on it.
Prima facie, one can assume that this declaration was made
under duress. Therefore the onus of proving that this was
not so rests on the Prosecution. In the United Nations
Security Council not one of the States having the right to
vote expressed the view that this declaration was given
voluntarily. If the view had been accepted that the
declaration had been made willingly, there would not have
been much discussion on Argentina’s complaint; it is hard to
believe that the matter would even have reached the agenda.
A further word on the subject on the question of the
Security Council’s consent to the trial of the Accused. In
the preamble to the resolution of 23 June 1960 quoted here,
the Security Council expressed the opinion that the Accused
should be brought to trial. But the object of kidnapping was
to bring the Accused before a court in Israel, and the
Security Council did not give its assent to that.
In this resolution there is another limitation. It is said
there that the Accused should be brought before an
appropriate court. This was mentioned in order to exclude an
Israel Court by way of exception.
Judge Halevi: It does not say “appropriate court”; it says
“shall be brought to appropriate justice.”
Dr. Servatius The text is not before me. I assume this is
correct, but these words have been taken out of their
context. It says here “to appropriate justice, to fitting
justice.” Similarly the Prosecution referred to the fact
that there was no question here of a conflict with
international law and accordingly concluded that there was
nothing to prevent the trial of the Accused. On
recommendation of the Security Council of the United
Nations, the incident and the conflict were liquidated by
means of the final declaration of 3 August 1960 by Argentina
and Israel. But in the text of this declaration there is no
withdrawal of the charge that a breach had been committed by
the kidnapping, a breach of international law. This breach
of the law still remains in effect, and the Accused can rely
on it. There is no dispute between the Federal Republic of
Germany and the State of Israel, but intervention is still
possible and the dispute can emerge at any particular stage
of the proceedings.
Presiding Judge: Are you arguing that the joint declaration
between Argentina and Israel does not imply that
Argentina has agreed to the fact that the Accused will
remain in Israel’s hands?
Dr. Servatius I understand the position to be that the
difficulties caused by the incident have been cleared up by
diplomatic contacts between the two countries without going
on to consider the international legal aspect of the matter.
On the question of possible conflict in the future with the
Federal Republic of Germany I would add this: The Accused
has a claim to protection by his country. In case of lack of
action by on the part of his Government he can still claim
such intervention in an administrative Court and he will, in
fact, do so.
Judge Halevi: Is he a German citizen?
Dr. Servatius Yes, certainly. He is a German citizen.
Judge Halevi: Not an Austrian citizen?
Dr. Servatius: No, he is not an Austrian citizen. When his
father acquired Austrian citizenship, he was already an
adult, or, at any rate, above the requisite age.
It appears, therefore, that the grounds for a dispute have
not yet been finally removed. The pivotal point of all the
questions regarding the Court’s jurisdiction is and remains
the question whether the kidnapping of the Accused had been
carried out by agents of the security service of the State.
Attorney General: I must correct Defence Counsel. This
is not correct. I am sorry to interrupt him. The Prime
Minister announced in the Knesset that the security services
of the state had unearthed his hiding place. No more than
Dr. Servatius: These things are known to me only from the
discussion in the United Nations Security Council. For this
reason the official declaration may be different, but that
was the original concept. If subsequently in the United
Nations Security Council it was pointed out that the
kidnappers were volunteers, there is no contradiction. Even
volunteers are able to take upon themselves a political
mission. This matter can be cleared up by the witnesses.
Accordingly I ask the Court to permit the hearing of
Presiding Judge: It is still not clear to me why you attach
such importance to this distinction – whether he was
kidnapped on orders of the government or as a result of
Dr. Servatius: If the state itself gives orders to perform
an act which is contrary to international law, it cannot
rely on it. This is my personal view.
Presiding Judge: And if we suppose that he was kidnapped on
private initiative, would you say that an Israel court would
have jurisdiction or not?
Dr. Servatius: Possibly the Court would then adopt a
Presiding Judge: But I want to know what your view is.
Dr. Servatius: In my view, the position is the same in both
cases, but if the state itself gave the order, then the
legal aspect would be much simpler. With this I should like
to conclude my remarks.
Presiding Judge: The decision of the Court on the
preliminary objections of the Defence Counsel will be given
next Monday, at 9 o’clock in the morning. The hearing is
adjourned until then.