IN THE DISTRICT COURT OF JERUSALEM

Criminal Case No. 40/61

Before His Honour JUDGE MOSHE LANDAU (Presiding)

His Honour JUDGE BENJAMIN HALEVI

His Honour JUDGE YITZCHAK RAVEH

For the Prosecution: THE ATTORNEY GENERAL

 The Accused: ADOLF, son of Karl Adolf, EICHMANN
 

Judgment in the Trial of Adolf Eichmann 

[Part 1]

The references in the Judgment are to the official record in Hebrew. 

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 listed. 

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 waves. 

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 country; 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 here. 

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 aboveÞmentioned 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 infra).  

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 Court. 

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. 

10. The first contention of Counsel that Israel Law is in conflict with international law, and that therefore it cannot vest jurisdiction in this Court, raises the preliminary question as to the validity of international law in Israel and as to whether, in the event of a conflict between it and the laws of the land, it is to be preferred to the laws of the land.  The law in force in Israel resembles that which is in force in England in this regard.  See Oppenheim (Lauterpacht), International Law, 8th Ed., 1955, para. 21a, p. 39: 

"As regards Great Britain, the following points must be noted: (a) All such rules of customary international law as are either universally recognized or have, at any rate, received the assent of this country are per se part of the law of the land.  To that extent there is still valid in England the common law doctrine, to which Blackstone gave expression in a striking passage, that the Law of Nations is part of the law of the land." 

But on the other hand (p. 41): 

"(c) English statutory law is absolutely binding upon English courts, even if in conflict with international law, although in doubtful cases there is a presumption that an Act of Parliament did not intend to overrule international law.  The fact that international law is part of the law of the land and is binding directly on courts and individuals does not mean that English law recognizes in all circumstances the supremacy of international law. 

(Note 3) It is of importance not to confuse, as many do, the question of the supremacy of international law and of the direct operation of its rules within the municipal sphere.  It is possible to deny the former while fully affirming the latter." 

See also - Croft v. Dunphy (1933) A.C. 156 (p. 164): 

"Legislation of the Imperial Parliament, even in contravention of generally acknowledged principles of international law, is binding upon and must be enforced by the courts of this country, for in these courts the legislation of the Imperial Parliament cannot be challenged as ultra vires (Mortensen v. Peters)." 

And also - Polites v. Commonwealth of Australia (1945) 70 C.L.R. 60 (Annual Digest, 1943-1945, Case No. 61): 

"The Commonwealth Parliament can legislate on these matters in breach of international law, taking the risk of international complications.  This is recognized as being the position in Great Britain... The position is the same in the United States of America... It must be held that legislation otherwise within the power of the Commonwealth Parliament does not become invalid because it conflicts with a rule of international law, though every effort should be made to construe Commonwealth statutes so as to avoid breaches of international law and of international comity." 

As regards Israel, the Deputy President, Justice Cheshin, said in Criminal Appeal 174/54 (10 Piske Din, 5,p.17): 

"As regards the question of the adoption by the national law of the principles of international law, we may safely rely on Blackstone's view in his Commentaries on the Laws of England (Book IV, Chap. 5): 

"`In England...the law of nations...is...adopted in its full extent by the common law, and is held to be part of the law of the land...without which it must cease to be a part of the civilized world.' 

And that is the case in other countries, such as the U.S.A., France, Belgium, and Switzerland, where the usages of international law have been acknowledged as part of the law of the land..."

With respect to statutory law, Justice Agranat said in High Court Case 279/51 (6 Piske Din 945, p. 966):

"It is a well known rule that a local statutory law must be construed in accordance with the rules of public international law, unless its tenor requires another interpretation." 

And in Criminal Appeal 5/51 (5 iske Din 1061), Justice Sussman said (p. 1065): 

"It is a well-known rule that in interpreting the law, the court shall endeavour, as far as possible, to avoid a clash between the national law and the rules of international law which are binding upon the state; but this rule is only one of the rules of interpretation.  When we are not dealing with the common law, but with statutory law, where the will of the legislator is clear from its wording, the will of the legislator must be enforced without regard to any contradiction between that statutory law and international law... Moreover, the courts of this country derive their jurisdiction not from the system of international law but from the laws of the land." 

Our jurisdiction to try this case is based on the Nazis and Nazi Collaborators (Punishment) Law, a statutory law the provisions of which are unequivocal.  The Court has to give effect to the law of the Knesset, and we cannot entertain the contention that this law conflicts with the principles of international law.  For this reason alone, Counsel's first contention must be rejected. 

11. But we have also perused the sources of international law, including the numerous authorities mentioned by learned Counsel in his comprehensive written brief upon which he based his oral pleadings, and by the learned Attorney General in his comprehensive oral pleadings, and have failed to find any foundation for the contention that Israeli law is in conflict with the principles of international law.  On the contrary, we have reached the conclusion that the Law in question conforms to the best traditions of the law of nations. 

The power of the State of Israel to enact the Law in question or Israel's "right to punish" is based, with respect to the offences in question, from the point of view of international law, on a dual foundation: The universal character of the crimes in question and their specific character as being designed to exterminate the Jewish People.  In what follows, we shall deal with each of these two aspects separately. 

12. The abhorrent crimes defined in this Law are crimes not under Israeli law alone.  These crimes which offended the whole of mankind and shocked the conscience of nations are grave offences against the law of nations itself ("delicta juris gentium").  Therefore, so far from international law negating or limiting the jurisdiction of countries with respect to such crimes, in the absence of an International Court, the international law is in need of the judicial and legislative authorities of every country, to give effect to its penal injunctions and to bring criminals to trial.  The jurisdiction to try crimes under international law is universal. 

13. This universal authority, namely the authority of the "forum deprehensionis" (the court of the country in which the accused is actually held in custody) was already mentioned in the Corpus Juris Civilis (see: C. 3, 15, "ubi de criminibus agi oportet"), and the towns of northern Italy had already in the Middle Ages taken to trying specific types of dangerous criminals ("banniti, vagabundi, assassini") who happened to be within their area of jurisdiction, without regard to the place in which the crimes in question were committed (see Donnedieu de Vabres Les Principes Modernes du Droit Penal International, 1928, p. 136).  Maritime nations have also since time immemorial enforced the principle of universal jurisdiction in dealing with pirates, whose crime is known in English law as "piracy jure gentium."  See Blackstone, Commentaries on the Laws of England, Book IV, Chap. 5 "Of Offences against the Law of Nations," p. 68: 

"The principal offences against the law of nations, animadverted on as such by the municipal laws of England, are of three kinds...  3. Piracy." 

p. 71: 

"Lastly, the crime of piracy, or robbery and depredation upon the high seas, is an offence against the universal law of society; a pirate being, according to Sir Edward Coke (3 Inst. 113) hostis humani generis.  As, therefore, he has renounced all the benefits of society and government, and has reduced himself afresh to the savage state of nature, by declaring war against all mankind, all mankind must declare war against him; so that every community hath a right by the rule of self-defence, to inflict that punishment upon him which every individual would in a state of nature have been otherwise entitled to do, for any invasion of his person or personal property."    

See also In re Piracy Jure Gentium, (1934) A.C. 586 (per Viscount Sankey L.C.): 

"With regard to crimes as defined by international law, that law has no means of trying or punishing them.  The recognition of them as constituting crimes, and the trial and punishment of the criminals, are left to the municipal law of each country.  But whereas according to international law the criminal jurisdiction of municipal law is ordinarily restricted to crimes by its own nationals wherever committed, it is also recognized as extending to piracy committed on the high seas by any national on any ship, because a person guilty of such piracy has placed himself beyond the protection of any state.  He is no longer a national, but hostis humani generis, and as such he is justiciable by any state anywhere." 

14. Hugo Grotius had already in 1625 raised in his famous book De Jure Belli ac Pacis (On the Law of War and Peace) the basic question of the "right to punish" under international law, the very question learned Counsel raised. 

In Book Two, chapter 20 "De Poenis" (On Punishment), the author says, inter alia: 

"Qui punit, ut recte puniat, jus habere debet ad puniendum, quod jus ex delicto nocentis nascitur." (In order that he who punishes may duly punish, he must possess the right to punish, a right deriving from the criminal's crime.) 

In the writer's view, the object of punishment may be the good of the criminal, the good of the victim, or the good of the community. According to natural justice, the victim may take the law into his hand and himself punish the criminal, and it is also permissible for any person of integrity to inflict punishment upon the criminal; but all such natural rights have been limited by organized society and have been delegated to the courts of law.  The learned author here adds these important words (our emphasis): 

"Sciendum quoque est reges, et qui par regibus jus obtinent, jus habere poenas poscendi non tantum ob injurias in se aut subditos suos commissas, sed et ob eas quae ipsos peculiariter non tangunt, sed in quibusvis personis jus naturae aut gentium immaniter violantibus." (It must also be known that kings, and any who have rights equal to the rights of kings, may demand that punishment be imposed not only for wrongs committed against them or their subjects, but also for all such wrongs as do not specifically concern them, but violate in extreme formin relation to any persons, the law of nature or the law of nations." 

And he goes on to explain: 

"Nam libertas humanae societati per poenas consulendi, quae initio ut diximus penes singulos fuerat, civitatibus ac judiciis institutis penes summas potestates resedit, non proprie quo aliis imperant, sed qua nemini parent.  Nam subjectio aliis id jus abstulit." (For the liberty to serve the welfare of human society by imposing penalties which had at first been, as already stated, in the hands of the individuals, has been exercised since the constitution of states and courts, by those with the supreme authority, not because they dominate others, but because they are subject to no one.  For subjection to government has taken this right away from others.) 

It is therefore the moral duty of every sovereign state (of "kings and any who have rights equal to the rights of kings") to enforce the natural right to punish, possessed by the victims of the crime whoever they may be, against criminals whose acts have "violated in extreme form the law of nature or the law of nations."  By these pronouncements the father of international law laid the foundations for the future definition of the "crime against humanity" as a "crime under the law of nations" and to universal jurisdiction over such crimes.   

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