| Source: http://www.nizkor.org Accessed 18 October 1999 Judgment in the Trial of Adolf Eichmann [Part 4] 29. In his written submissions
(Volume I, pp. 550-552), learned Counsel has based himself on the strict
interpretation of the term `crime against humanity' given by the
Nuremberg International Tribunal according to Art 6(1) of the Charter,
which excludes from its jurisdiction many crimes of this kind which had
been committed by Germany before the outbreak of the War.
In its judgment on the Major War Criminals, the Tribunal said (p.
254): "To
constitute Crimes against Humanity, the acts relied on before the
outbreak of war must have been in execution of, or in connection with,
any crime within the jurisdiction of the Tribunal.
The Tribunal is of the opinion that, revolting and horrible as
many of these crimes were, it has not been satisfactorily proved that
they were done in execution of, or in connection with, any such crime.
The Tribunal therefore cannot make a general declaration that the
acts before 1939 were Crimes against Humanity within the meaning of the
Charter." It is our view that no
conclusion may be drawn from this interpretation of the Charter, for it
is based on an express proviso to Art. 6(c) of the Charter, which does
not appear in the definition of "crime against humanity" in
Art. II 1(c) of Control Council Law No. 10.
The last words in the passage cited above: "crimes against
humanity within the meaning of the Charter" indicate that, but for
the special proviso to Art. 6(c), the Tribunal would have deemed these
crimes "crimes against humanity."
It is true that, notwithstanding the conspicuous omission of this
proviso from Control Council Law No. 10, two of the American Military
Tribunals decided in subsequent cases (the `Flick Case' and the
`Ministries Case') to apply the above-mentioned proviso to the
last-mentioned law; but two other Tribunals have expressed a contrary
opinion (in the `Operations Units' and the `Jurists' cases), and we
think that their opinion, which conforms to the letter of the law, is
correct. See also the
reasons - which we find convincing - advanced by the Chief American
Prosecutor, General Taylor, in his argument in the `Jurists' case.
It must be noted that judgments under Control Council Law No. 10
applied the definition of "crime against humanity" to all
crimes of this order which were committed during the period of the Nazi
regime, i.e., from 30 January 1933. See H. Meyerowitz, La Repression par
les Tribunaux Allemands des Crimes contre l'Humanite, 1960, p. 233. No great practical importance
attaches to this question for the purpose of this case, seeing that most
of the crimes attributed to the Accused were committed during the War or
in connection with it (according to the Nuremberg judgment, Hitler's
invasions of Austria and Czechoslovakia constitute "crimes within
the jurisdiction of the Tribunal," within the meaning of the
proviso to Art. 6(c) [of the Charter]; see ibid., Vol. 22, pp. 643,
662). At all events, it
seems to us, in the light of the general definition in Control Council
Law No. 10, of "a crime against humanity," that the proviso to
Art. 6(c) of the Charter does not limit the substantive nature of a
"crime against humanity" under international law, but has only
limited the jurisdiction of the Nuremberg Tribunal to try crimes of this
kind which are bound up with "war crimes" or "crimes
against peace." See
also Oppenheim-Lauterpacht (7th ed.) II, para. 257, p. 579, note (5) and
authorities there cited. 30. We have discussed at length
the international character of the crimes in question because this
offers the broadest possible, though not the only, basis for Israel's
jurisdiction according to the law of nations.
No less important from the point of view of international law is
the special connection the State of Israel has with such crimes, seeing
that the People of Israel (Am Yisrael) - the Jewish People (Ha'am
Ha'Yehudi - to use the term in the Israel legislation) constituted the
target and the victim of most of the crimes in question.
The State of Israel's "right to punish" the Accused
derives, in our view, from two cumulative sources: a universal source
(pertaining to the whole of mankind) which vests the right to prosecute
and punish crimes of this order in every state within the family of
nations; and a specific or national source which gives the victim nation
the right to try any who assault its existence. This second foundation of penal
jurisdiction conforms, according to the acknowledged terminology, to the
protective principle (the competence reelle).
In England, which until a short time ago was considered a country
that does not rely on such jurisdiction (see still in "Harvard
Research in International Law, Jurisdiction with Respect to Crime,"
1935, AJIL, Vol. 35 (Suppl.) 544) where it was stated in Joyce v. D.P.P.
(1946) A.C. 347 (p. 372): "The
second point of appeal...was that in any case no English court has
jurisdiction to try an alien for a crime committed abroad... There is, I
think, a short answer to this point.
The statute in question deals with the crime of treason committed
within or...without the realm... No principle of comity demands that a
state should ignore the crime of treason committed against it outside
its territory. On the
contrary, a proper regard for its own security requires that all those
who commit that crime, whether they commit it within or without the
realm, should be amenable to its laws." Oppenheim-Lauterpacht I para. 147, p. 333, says that the penal jurisdiction of the state includes
Most European countries go much farther than this (See "Harvard Research," ibid., p. 546 et seq.). 31. Dahm says in his
Zur Problematik des Voelkerstrafrechts, 1956, p. 28, that the protective
principle is not confined to foreign offences that threaten the
"vital interests" of the state, and goes on to explain (pp.
38-39) in his reference to "immanent limitations" of the
jurisdiction of the state that a departure therefrom would constitute an
"abuse" of its sovereignty. He says: "Penal
jurisdiction is not a matter for everyone to exercise.
There must be a "linking point," a legal connection that
links the punisher with the punished.
The State may, insofar as international law does not contain rules
contradicting this, punish only persons and acts which concern it more
than they concern other States" (author's italics). Learned Counsel
summed up his pleadings against the jurisdiction of the Israel legislator
by stressing (Session 5, Vol. 1, pp.56-59) that under international law
there must be a connection between the state and the person who committed
the crime, and that, in the absence of an "acknowledged linking
point," it was ultra vires for the state to inflict punishment for
foreign offences. The doctrine of the
"linking point" is not new.
Dahm (ibid.) bases himself on Mendelssohn-Bartholdy, Vergleichende
Darstellung des deutschen und auslaendischen Strafrechts, Allg. Teil VI
(1908) 111 ff. And
Mendelssohn-Bartholdy himself (ibid.) quotes Rolin-Jaquemins as having
said in 1874: "Tout
le monde est d'accord sur ce point qu'il faut un lien de droit entre celui
qui punit et celui qui subit le chatiment." 32. We have already
stated above the view of Grotius on "the right to punish," a
view which is also based on a "linking point" between the
criminal and his victim: Grotius holds that the very commission of the
crime creates a legal connection between the offender and the victim which
vests in the victim the right to punish the offender or demand his
punishment. According to
natural justice, the victim may himself punish the offender, but the
organization of society has delegated that natural right to the sovereign
state. One of the main
objects of the punishment is - continues the author of The Law of Peace
and War (Book 2, chapter 20) - to ensure that "the
victim shall not in future suffer a similar infliction at the hands of the
same person or at the hands of others" (ne post hac tale quid
patiatur aut ab eodem aut ab aliis). Grotius also quotes
an ancient authority who said that the punishment is necessary to
and he adds
that all that has been said of the jurisdiction applies to the
infringement of all his rights. And
again: "Ne
ab aliis laedatur qui laesus est punitione non quavis, sed aperta atque
conspicua quae ad exemplum pertinet obtinetur" (In order that the
victim may not be hurt by others, there must be no mere punishment but a
public and striking punishment that will serve as an example.) Not all jurists use
the term "linking point" in an equal connotation.
Thus, Mendelssohn-Bartholdy holds the opinion that the sovereignty
of a country in determining its penal jurisdiction is unlimited, and he
resorts to the "linking point" doctrine solely as a scientific
device for the classification of the offences specified in positive law:
"The number of linking points is as large as the number of
offences" (ibid., p. 112). On
the other hand, Hyde (ibid., p. 804) demands, as already mentioned "a
close and definite connection between that act and the prosecutor, and one
which is commonly acknowledged to excuse the exercise of jurisdiction.
There are few situations where the requisite connection is deemed
to exist... The connection...is... apparent when the act complained of is
to be fairly regarded as directed against the safety of the prosecuting
State." Between these two
extreme views is the view of Dahm (ibid.).
Notwithstanding the difference of opinion as to the closeness of
the requisite link, the very term "connection" or "linking
point" is useful for the elucidation of the problem before us.
The question is: What is the special connection between the State
of Israel and the offences attributed to the Accused, and whether this
connection is sufficiently close to form a foundation for Israel's right
of punishment against the Accused. This
is no merely technical question but a wide and universal one; for the
principles of international law are wide and universal principles and not
articles in an express code. 33. When the question is presented in its wider form, as stated above, it seems to us that there can be no doubt what the answer will be. The "linking point" between Israel and the Accused (and for that matter between Israel and any person accused of a crime against the Jewish People under this law) is striking in the "crime against the Jewish People," a crime that postulates an intention to exterminate the Jewish People in whole or in part. Indeed, even without such specific definition - and it must be noted that the draft law only defined "crimes against humanity" and "war crimes" (Bills of the Year 5710 No. 36, p. 119) - there was a subsisting "linking point," since most of the Nazi crimes of this kind were perpetrated against the Jewish People; but viewed in the light of the definition of "crime against the Jewish People," as defined in the Law, constitutes in effect an attempt to exterminate the Jewish People, or a partial extermination of the Jewish People. If there is an effective link (and not necessarily identity) between the State of Israel and the Jewish People, then a crime intended to exterminate the Jewish People has an obvious connection with the State of Israel. 34. The connection
between the State of Israel and the Jewish People needs no explanation. The State of Israel was established and recognized as the
State of the Jews. The
proclamation of 5 Iyar 5708 (14 May 1948) (Official Gazette No. 1) opens
with the words: "It was in the Land of Israel that the Jewish People
was born," dwells on the history of the Jewish People from ancient
times until the Second World War, refers to the Resolution of the United
Nations Assembly of 29 November 1947 which calls for the establishment of
a Jewish State in the Land of Israel, determines the "natural right
of the Jewish People to be, like every other people, self-governing, in
its sovereign state." It would appear that there is no need for any further proof
of the obvious connection between the Jewish People and the State of
Israel: This is the sovereign state of the Jewish People. Moreover, the
Declaration of the Establishment of the State of Israel makes mention of
the specific tragic link between the Nazi crimes which form the subject of
the Law in question, and the establishment of the state: "The
catastrophe which recently befell the Jewish People - the massacre of
millions of Jews in Europe - was another clear demonstration of the
urgency of solving the problem of its homelessmess by re-establishing in
the Land of Israel the Jewish State, which would open the gates of the
homeland wide to every Jew, and confer upon the Jewish People the status
of a fully privileged member of the comity of nations. "Survivors
of the Nazi Holocaust in Europe, as well as Jews from other parts of the
world, continued to migrate to the Land of Israel, undaunted by
difficulties, restrictions and dangers, and never ceased to claim their
right to a life of dignity, freedom and honest toil in their national
homeland. "In
the Second World War, the Jewish community of this country contributed its
full share to the struggle of the freedom- and peace-loving nations
against the forces of Nazi wickedness and, by the blood of its soldiers
and its war effort, gained the right to be reckoned among the peoples who
founded the United Nations." These words are no
mere rhetoric, but historical facts which international law does not
ignore. In the light of the
recognition by the United Nations of the right of the Jewish People to
establish their State, and in the light of the recognition of the
established Jewish State by the family of nations, the connection between
the Jewish People and the State of Israel constitutes an integral part of
the law of nations. The massacre of
millions of Jews by the Nazi criminals that very nearly led to the
extinction of the Jewish People in Europe, was one of the tremendous
causes for the establishment of the State of the survivors.
The State cannot be cut off from its roots which also lie deep
within the Holocaust of European Jewry. Half of the citizens
of the State have immigrated from Europe in recent years, some before and
some after the Nazi massacre. There
is hardly one of them who has not lost parents, brothers and sisters, and
many lost their spouses and their offspring in the Nazi hell. Under these
circumstances, which are without precedent in the annals of any other
nation, can there be any one who would contend that there is no sufficient
"linking point" between the crime of the extermination of the
Jews of Europe and the State of Israel? 35. Learned Counsel
contends that in the absence of a "recognized linking point"
only the principle of territoriality is valid with respect to the crimes
attributed to the Accused. On
this principle, at least eighteen countries may try the Accused for the
offences specified in the indictment, and had one or several of such
countries prosecuted the Accused for the extermination of the Jews who
resided there, the Accused would not have had any argument against the
jurisdiction of the Court. In other words, eighteen nations do have the right to punish
the Accused for the murder of Jews who resided in their territories, but
the nation of those who were murdered has no right to inflict such
punishment because those persons were not exterminated on its territory. But the people is one
and the crime is one: The crime attributed to the Accused is "the
killing of millions of Jews with intent to exterminate the Jewish
People." The Jewish population now residing in the State of Israel, or
the Jewish "Yishuv" which lived in Palestine before the
establishment of the State, too, is part of the Jewish People whom the
Accused sought, according to the indictment, to exterminate.
Although that part of the people was rescued, it was in danger of
extermination, as the history of the World War shows.
At all events, the extermination of European Jewry which was
carried out with intent to annihilate the Jewish People, was directed not
only against those Jews who were exterminated, but against the entire
Jewish People, including the Jewish "Yishuv" in Palestine.
To argue that there is no connection, is like cutting away the
roots and branches of a tree and saying to its trunk: I have not hurt you. Indeed, this crime
very deeply concerns the vital interests of the State of Israel, and
pursuant to the "protective principle," this State has the right
to punish the criminals. In
terms of Dahm's thesis, the acts in question referred to in this Law of
the State of Israel "concern Israel more than they concern other
states," and therefore, according to this author's thesis, too, there
exists a "linking point." The
punishment of Nazi criminals does not derive from the arbitrariness of a
country "abusing" its sovereignty, but is a legitimate and
reasonable exercise of a right in penal jurisdiction. The very existence of
a people who can be murdered with impunity is in danger, to say nothing of
the danger to its "honour and authority" (Grotius).
This has been the curse of the diaspora and the want of sovereignty
of the Jewish People, upon whom any criminal could commit his outrages
without fear of being punished by the people outraged.
Hitler and his associates exploited the defenceless position of the
Jewish People in its dispersion, in order to perpetrate the total murder
of that People in cold blood. It
was also in order to provide some measure of redress for the terrible
injustice of the Holocaust that the sovereign state of the Jews, which
enables the survivors of the Holocaust to defend its existence by the
means at the disposal of a state, was established on the recommendation of
the United Nations. One of
the means therefor is the punishment of the murderers who did Hitler's
contemptible work. It is for this reason that the Law in question has been
enacted. 36. Counsel contended
that the protective principle cannot apply to this case because that
principle is designed to protect only an existing state, its security and
its interests, while the State of Israel had not existed at the time of
the commission of the crime. He
further submitted that the same contention applies to the principle of
"passive personality" which stemmed from the protective
principle, and of which some states have made use for the protection of
their citizens abroad through their penal legislation.
Counsel pointed out that, in view of the absence of a sovereign
Jewish State at the time of the Holocaust, the victims of the Nazis were
not, at the time they were murdered, citizens of the State of Israel. In our view, learned
Counsel errs when he examines the protective principle in this retroactive
Law according to the time of the commission of the crimes, as is the case
in an ordinary law. This Law
was enacted in 1950 with a view to its application to a specified period
which had terminated five years before its enactment.
The protected interest of the State recognized by the protective
principle is, in this case, the interest existing at the time of the
enactment of the Law, and we have already dwelt on the importance of the
moral and protective task which this Law is designed to achieve in the
State of Israel. 37. The retroactive
application of the Law to a period precedent to the establishment of the
State of Israel is not, in respect to the Accused (and, for that matter,
to any accused under this Law), a problem different from that of the usual
retrospectivity on which we have already dwelt above.
Goodhart states in his "The Legality of the Nuremberg
Trial," Juridical Review, April 1946, (p. 8), inter alia: "Many
of the national courts now functioning in the liberated countries have
been established recently, but no one has argued that they are not
competent to try the cases that arose before their establishment... No
defendant can complain that he is being tried by a court which did not
exist when he committed the act." What is said here of
a court which did not exist at the time of the commission of the crime, is
also valid with respect to a state which was not sovereign at the time of
the commission of the crime. The
whole political landscape of the continent of occupied Europe has changed
after the War; boundaries have changed, as has also changed the very
identity of states that had existed before. But all this does not concern
the Accused. 38. All this is said
in relation to the Accused; but may a new state try crimes at all that
were committed before it was established?
The reply to this question was given in Katz-Cohen v. Attorney
General, C.A. 3/48 (Pesakim II, p. 225) where it was decided that the
Israeli courts have full jurisdiction to try offences committed before the
establishment of the State, and that "in spite of the changes in
sovereignty, there subsisted a continuity of law."
"I cannot see," said President Smoira, "why that
community in the country against whom the crime was committed should not
demand the punishment of the offender solely because that community is now
governed by the Government of Israel, instead of by the Mandatory
Power." This was said
with respect to a crime committed in the country, but there is no reason
to assume that the law would be different with respect to foreign
offences. Had the Mandatory
legislator enacted at the time an extraterritorial law for the punishment
of war criminals (as, to give one example, the Australian legislator did
in the War Criminals Act, 1945, see Section 12), it is clear that the
Israeli court would have been competent to try under such law offences
which were committed abroad prior to the establishment of the State.
The principle of continuity also applies to the power to legislate:
The Israeli legislator is empowered to amend or supplement the Mandatory
legislation retroactively by enacting laws applicable to criminal acts
which were committed prior to the establishment of the State. Indeed, this
retroactive law is designed to supplement a gap in the laws of Mandatory
Palestine, and the interests protected by this law existed also during the
period of the Jewish National Home. The
Balfour Declaration and the Palestine Mandate given by the League of
Nations to Great Britain constituted an international recognition of the
Jewish People (see N. Feinberg, "The Recognition of the Jewish People
in International Law," Jewish Yearbook of International Law 1948, p.
15, and authorities there cited), the historical link of the Jewish People
with the Land of Israel and their right to reestablish their National Home
in that country. The Jewish People actually made use of that right, and the
National Home has grown and developed until it reached a sovereign status.
During the period preceding the establishment of the sovereign
State, the Jewish National Home may be seen as reflecting the rule
nasciturus pro jam nato habetur (see Feinberg, ibid.).
The Jewish "Yishuv" in Palestine constituted during that
period a "state-on-the-way," which in due time reached a
sovereign status. The lack of
sovereignty made it impossible for the Jewish "Yishuv" in the
country to enact a criminal law against the Nazi crimes at the time of
their commission, but these crimes were also directed against that "Yishuv"
which constituted an integral part of the Jewish People, and the enactment
with retroactive application of the Law in question by the State of Israel
answered the need which had already existed previously. The historical facts
explain the background of the legislation in question; but it seems to us
that, from a legal point of view, the power of the new State to enact
retroactive legislation does not depend on that background alone, and is
not conditioned by the continuity of law between Palestine and the State
of Israel. Let us take an extreme example and assume that the Gypsy
survivors - an ethnic group
or a nation who were also, like the Jewish People, victims of the
"crime of genocide" - would have gathered after the War and
established a sovereign state in any part of the world.
It seems to us that no principle of international law could have
denied the new state the natural power to put on trial all those killers
of their people who fell into their hands.
The right of the injured group to punish offenders derives
directly, as Grotius explained (see supra) from the crime committed
against them by the offender, and it was only want of sovereignty that
denied them the power to try and punish the offender.
If the injured group or people thereafter reaches political
sovereignty in any territory, it may make use of such sovereignty for the
enforcement of its natural right to punish the offender who injured it. All this holds good
in respect to the crime of genocide (including the crime against the
Jewish People) which, it is true, is committed by the killing of the
individuals, but is intended to exterminate the nation as a group.
According to Hitler's murderous racialism, the Nazis singled out
Jews from all other citizens in all the countries of their domination, and
carried the Jews to their death solely because of their racial
affiliation. Even as the
Jewish People constituted the object against which the crime was directed,
so it is now the competent subject to place on trial those who assailed
its existence. The fact that this People changed after the Holocaust from
object to subject, and from the victim of a racial crime to the wielder of
authority to punish the criminals, is a great historic right that cannot
be dismissed. The State of
Israel, the sovereign State of the Jewish People, performs through its
legislation the task of carrying into effect the right of the Jewish
People to punish the criminals who killed its sons with intent to put an
end to the survival of this people. We
are convinced that this power conforms to existing principles of the law
of nations. For all these reasons
we have dismissed the first submission of Counsel against the jurisdiction
of this Court. 39. We should add
that the well-known judgment of the International Court of Justice at The
Hague in the "Lotus Case" ruled that the principle of
territoriality does not limit the power of the state to try crimes and,
moreover, any argument against such power must point to a specific rule in
international law which negates that power.
We have not guided ourselves by this rule which devolves, as it
were, the "onus of proof" upon him who contends against such
power, but have preferred to base ourselves on positive grounds which
establish the jurisdiction of the State of Israel. 40. The second
contention of learned Counsel for the Defence was that the trial in Israel
of the Accused, following upon his capture in a foreign land, is in
conflict with international law and takes away the jurisdiction of the
Court. Counsel pleaded that
the Accused, who had resided in Argentina under an assumed name, was
kidnapped on 11 May 1960 by the agents of the State of Israel, and was
forcibly brought to Israel. He
requested that two witnesses be heard in proof of his contention that the
kidnappers of the Accused acted on orders they received from the
Government of Israel or its representatives, a contention to which learned
Counsel attached considerable importance, in an effort to prove that he
was brought to Israel's area of jurisdiction in violation of international
law. He summed up his
contentions by submitting that the Court ought not to lend its support to
an illegal act of the State, and that in these circumstances the Court has
no jurisdiction to try the Accused. On the other hand,
the learned Attorney General pleaded that the jurisdiction of the Court
was based upon the Nazis and Nazi Collaborators (Punishment) Law which
applied to the Accused and to the acts attributed to him in the
indictment; that it is the duty of the Court to do no other than try such
crimes; and that in accordance with established judicial precedents in
England, the United States and Israel, the Court is not to enter into the
circumstances of the arrest of the Accused and of his transference to the
area of jurisdiction of the State, these questions having no bearing on
the jurisdiction of the Court to try the Accused for the offences for
which he is being prosecuted, but only on the foreign relations of the
State. The Attorney General
added that, with reference to the circumstances of the arrest of the
Accused and his transference to Israel, the Republic of Argentina had
lodged a complaint with the Security Council of the United Nations, which
resolved on 23 June 1960 as follows (document S/4349) (Exhibit T/1): "The
Security Council, Having
examined the complaint that the transfer of Adolf Eichmann to the
territory of Israel constitutes a violation of the sovereignty of the
Argentine Republic, Considering
that the violation of the sovereignty of a Member State is incompatible
with the Charter of the United Nations, Having
regard to the fact that reciprocal respect for and the mutual protection
of the sovereign rights of States are an essential condition for their
harmonious coexistence, Noting
that the repetition of acts such as that giving rise to this situation
would involve a breach of the principles upon which international order is
founded, creating an atmosphere of insecurity and distrust incompatible
with the preservation of peace, Mindful
of the universal condemnation of the persecution of the Jews under the
Nazis and of the concern of people in all countries that Eichmann should
be brought to appropriate justice for the crimes of which he is accused, Noting
at the same time that this resolution should in no way be interpreted as
condoning the odious crimes of which Eichmann is accused, 1. Declares that acts such as that under consideration, which affect the sovereignty of a Member State and therefore cause international friction, may, if repeated, endanger international peace and security; 2.
Requests the Government of Israel to make appropriate reparation in
accordance with the Charter of the United Nations and the rules of
international law; 3.
Expresses the hope that the traditionally friendly relations between
Argentina and Israel will be advanced." Pursuant to this
Resolution, the two governments reached an agreement on the settlement of
the dispute between them, and on 3 August 1960 issued the following joint
communique (T/4): "Los
Gobiernos de la Republica Argentina
e Israel, animados por el proposito de dar cumplimiento a la resolucion
del Consejo de Seguridad del dia 23 de Junio de 1960 en cuanto expresa la
esperanza de que mejoren las relaciones tradicionalmente amistosas entre
ambos paises, resuelven considerar concluido el incidente originado en la
accion cometida por nacionales israelies en perjuicio de derechos
fundamentales del Estado argentino" (The Governments of Argentina and
Israel, actuated by an intention to put into effect the resolution of the
Security Council of 23 June 1960, insofar as it gives expression to the
hope for the improvement of the relations of traditional friendship
between the two countries, resolve to view as settled the incident which
was caused in the wake of the action of citizens of Israel which violated
the basic rights of the State of Argentina). By our Decision No. 3
of 17 April 1961 (Session 6, Vol. I, p. 60), we dismissed Counsel's
objections to the jurisdiction of the Court, and ruled that there is no
need to hear the witnesses summoned with reference to his second
contention. The following are
the reasons for our ruling: |
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