Attorney General Of The Government Of Israel vs Adolf Eichmann

/ Society of International law and its Affairs

Attorney General Of The Government Of Israel vs Adolf Eichmann

COURTDistrict Court of Jerusalem, Israel
CASE NUMBERCriminal Case No. 40/61
TRIAL ADJOURMENT14th August, 1961
DECISION DATE12th December, 1961
PARTIESAttorney General of Government of Israel Otto Adolf Eichmann
JUDGESJ. Moshe Landau (Presiding) J. Benjamin Halevi J. Yitzchak Raveh
COUNSEL FOR PETITIONERAttorney-General Gideon Hausner Deputy-Attorney-General Gabriel Bach District Attorney Yaakov Bar-Or
COUNSEL FOR DEFENDANTChief Counsel Mr. Robert Servatius Legal Assistant Mr. Dieter Wechtenbruch
VERDICTGuilty of 15 Counts of Crimes Against Humanity etc. pronounced Death Sentence

Abstract

Israel set a critical modern precedent by the trial of Adolf Eichmann for the crimes committed during the Nazi regime. This case expanded the concept of universal jurisdiction and the use of retroactive penal legislation which marked the first and the only time Israel enacted a death sentence.

Background

Adolf Eichmann was a World War II fugitive living in Argentina under the assumed name of ‘Richard Klementz.’ He was extradited from Argentina without the state’s knowledge or consent. Argentina later approached the UN’s Security Council stating the commission of an International Tort by Israel. However, this issue between the two nations was resolved by a joint communique released on August 3, 1960.

Facts

Austrian-born Adolf Eichmann, was a member of Schutzstaffel[1] prior to the onset of WWII (p.59). He then volunteered for Sicherheitsdienst[2] in Berlin (p.59) and then was moved to Gestapo[3] (p.61) and after several promotions was made the Reich Central Officer for Jewish Emigration (p.65).

Post the outbreak of WWII he looked after the matters of ‘Eichmann Special Operations Unit’ and carried the ‘Final Solution[4]’ in Hungary (p.111).  These matters included transfer of money from evacuated Jews for the disposal of the State (p.91) and transportation of Jews (p.93) to concentration camps, where fit were forced to labour and unfit were exterminated (p.145). In 1942, he ordered burning of mass graves to cover up the slaughter (p.148). He also looked after administrative matters of Terezin Ghetto[5] (p.152)and Bergen-Belsen Camp[6] (p.153).

Issues

  1. Can Israel try Eichmann although he was forcibly abducted from Argentina?
  2. Is Eichmann guilty? Can Israel try Eichmann for these alleged acts committed before 1945, under Nazi’s and Nazi Collaborators (Punishment) Law enacted in 1950 (“1950 Law”)?
  3. Can Israel try Eichmann, who is not a National of Israel for offences alleged to have been committed outside Israel against Persons who were not Nationals of Israel at the time of the commission of these offences?

Prosecution’s Case

The Attorney-General in his opening statement described Eichmann as ‘a new style murderer – one who carries out killings from his desk.’ To amplify the gravity of involvement of Eichmann particularly in the ‘Final Solution’ and membership to hostile organisations[7], the Prosecution played his recorded statement from May 26, 1960 from police custody wherein he detailed his personal history and the role of Wannsee Conference[8] in moulding his career. Moreover, statements taken from Mr. Dietrich Wisliceny[9], Mr. Rudolf Hoess[10], Justice Musmanno[11] and several of surviving victims of Eichmann’s alleged crimes were presented. The Prosecution concluded by stating – ‘There was no atonement, no forgiveness, no forgetting.’

Eichmann’s Defence

All the arguments presented by the defence were focused on –

  1. Incompetence and lack of jurisdiction of the Court of Jerusalem because of its prejudice[12] and from jus ex injuria non oritur[13], as the abduction of the accused constituted a breach of International Law by Israel.
  2. 1950 Law being ultra vires to principle of natural justice and to maxim nullum crimen sine lege[14]. Hence, 1950 Law contravening the International Law due to its extraterritorial[15] and retroactive[16] nature and the State of Israel not being in existence at that time of commission of alleged offences.

The defence submitted that no witnesses would come forward for the fear of being arrested and hence throughout the course of trial, Eichmann remained its sole witness. His substantive defence was that he was not in charge of ‘Final Solution’ and that he was unfortunate in having to take orders from an inhuman regime and is ‘not guilty from a human point of view’ for his complicity in mass slaughter of Jews.

Prosecution’s Confute To Defence’ Arguments

The Attorney general had challenged each of defence’s contentions stating that Israel can try the indictment of Eichmann as had been laid down by the War Crimes Tribunal[17]. Moreover, it was contended that Nazi criminals had made themselves hostis humani generis[18] and according to custom –  

‘Anyone who catches them is competent to try them like pirates, slave traders and white slavers[19]’

Furthermore, Nuremburg Law accepts that nullum crimen sine lege could not be regarded as International rule of law and the William Joyce Case[20] and the Lotus Case[21] were recited. Prosecution argued against the retroactive contention of Defence by stating that the State of Israel has been in existence since the Balfour Declaration of 1917 i.e. before the accused committed the crimes. As for taking orders from an inhuman regime, Prosecution argued that Eichmann was only subordinate to Heydrich, Himmler and Hitler[22] and that as long as he had a moral choice[23], he must be held responsible for his crimes.

Judgement

(The District Court of Jerusalem heavily relied on various foreign judgements, particularly the Nuremburg Tribunal.)

The Court of Jerusalem justified its jurisdiction through Ex Parte Sussanna Scott (1829)[24] by the English Courts (p.41), stating that this rule applies to International Law as well (p.47) –

‘It is an established Rule of Law that a person standing trial for an offence against the laws of a state may not oppose his being tried by the reason of the illegality of his arrest…’

The Court recognised that it derives jurisdiction for extraterritorial offences through section 3(b) of Criminal Code Ordinance 1936[25], the Criminal Amendment (Foreign Offences) Act 1955 (p.6), and the Nazi Collaborators (Punishment) Act, 1950 (p.5).

Moreover, the Court rejected Defence’s first contention stating that since Israeli Law broadly follows the British System[26] (p.10), it recognises certain rules of International Customary Law per se as part of Law of Land, and is bound to acknowledge the supremacy of a statute when it is in conflict with International Law. Alternatively, because of these grave offences against law of nations being universal in nature – in the absence of an International Court, any Domestic Court has jurisdiction (p.12). Furthermore, the necessary relationship between the accused and Israel is established through the specific nature of crimes being against Jews, and Israel being a Jewish State (p.34).

The Court further held that the orders of superiors cannot be pleaded in defence under 1950 Law[27] and that after examining the structure of the Nazi regime, it was held that Eichmann may have acted under the directives of his superiors but had retained a wide power of discretion (p.180).

In a unanimous judgement on December 12, 1961 the Court sentenced Adolf Eichmann to death by hanging, over fifteen counts of indictment from the period after May 1940. He was charged for – Crimes Against Humanity, Crimes against the Jews, War Crimes, Membership to Hostile Organisation. His appeal against this verdict to the Israeli Supreme Court[28] was denied and he was executed on May 31, 1962.

Analysis

This trial of Adolf Eichmann can be described as a trial without any precedents but rather it itself being a very dangerous one. One of the major reasons behind this, is that a man, though proven guilty, was spirited away from the protection of a sovereign State and being put on trial by his captors; for the crimes he did not commit in that country or to its nationals. Moreover, bearing in mind the place of trial and its psychological climate, it seems quite impossible for the Judges to be objective throughout.

Yet the dignity and restraint of the Court and its desire to do Justice, through the documents and circumstantial evidence, dominated all stages of proceedings and must be recognised. The Court rested on a synthesis of International and National laws through an erudite judgment.

Conclusively, with no guidance from International Community and unsatisfactory trials of war criminals in Germany, Israel had to act to discharge the enormous burden assumed as soon as Eichmann was tracked for which the State has to be appreciated.

Laws Cited

  • Sections 1(a) (1), (2), (3), 1(b), 3(a), 3(b) and 8 of Nazi’s and Nazi Collaborators (Punishment) Law 1950
  • Section 3 (b) of Criminal Code Ordinance 1936
  • Criminal Amendment (Foreign Offences) Act 1955
  • Nazi Collaborators (Punishment) Act, 1950
  • Section 8 of London Charter

References

[1] Abbreviated as SS, was a black-uniformed branch of elite corps also dubbed as ‘Political Soldiers of the Nazi Party.’

Michael Ray, SS: Corps of Nazi Party, Britannica (2020), https://www.britannica.com/topic/SS (last visited Oct 16, 2020)

[2] Abbreviated as SD, a security department responsible for foreign and domestic intelligence and espionage

Ibid note 1

[3] Secret State Police working closing with SD to ruthlessly eliminated opposition of the Nazis

Gloria Lotha, Gestapo: Nazi Political Police, Britannica (2020), https://www.britannica.com/topic/Gestapo (last visited Oct 16, 2020)

[4] The Nazi Program for extermination of all Jews in Europe

Marriam-Webster Definition, https://www.merriam-webster.com/dictionary/final%20solution (last visited Oct 16, 2020)

[5] A Jewish Ghetto and Concentration Camp in Czechoslovakia

Michael Berenbaum, Theresienstadt: Concentration Camp, Britannica (2018), https://www.britannica.com/place/Theresienstadt (last visited Oct 16, 2020)

[6] A Nazi German Concentration Camp in Celle, Germany

Michael Berenbaum, Bergen-Belsen: Concentration Camp, Britannica (2019), https://www.britannica.com/place/Bergen-Belsen (last visited Oct 16, 2020)

[7] Organisations listed as hostile or criminal by the International Military Tribunal of Nuremburg in 1945

[8] Meeting of Nazi officials in Berlin in 1942 to plan ‘Final Solution’

Michael Berenbaum, Wannsee Conference: Germany [1942], Britannica (2020), https://www.britannica.com/event/Wannsee-Conference (last visited Oct 16, 2020)

[9] ‘Eichmann was a decisive and extremely important factor in extermination of Jews.’

Dietrich Wisliceny’s description of Eichmann. He was once Eichmann’s aide and was executed in Czechoslovakia in 1946

[10] ‘Eichmann was a man always full of life and new plans obsessed with the final solution of the Jewish problem’

Rudolf Hoess’ description of Eichmann. He was commandant of Auschwitz camp and was executed in Poland in 1947

[11] J. Musmanno recalled that Schellenburg, a Nazi intelligence chief, told him that Eichmann was only subordinate to Hitler, Himmler and Heydrich

This information was obtained by the witness in his capacity of a Judge in war crimes trials in Germany

[12] Justice Halevi was reported to have compared Eichmann to Satan

[13] [Latin “a right does not arise from a wrong”]

Bryan A Garner, Black’s Law Dictionary (VIII edition, 2004) p. 5324

[14] [Latin “no crime without law”] a person cannot or should not face criminal punishment except for an act that was criminalized by law before he/she performed the act

Legal Information Institute, Cornell Law School https://www.law.cornell.edu/wex/nullum_crimen_sine_lege (last visited Oct 16, 2020)

[15] Beyond Geographical limits of a particular jurisdiction

Bryan A Garner, Black’s Law Dictionary (VIII edition, 2004) p. 1766

[16] Extending in scope or effect to matters that have occurred in the past

Bryan A Garner, Black’s Law Dictionary (VIII edition, 2004) p. 4106

[17]  Eichmann could have been tried in absentia as was Martin Bormann

[18] [Latin “enemy of mankind”] US Legal https://definitions.uslegal.com/h/hostis-humani-generis/ (last visited Oct 16, 2020)

[19] Although definition of piracy shrank in terms of article 16 of High Seas Convention 1958, States have undertaken to prosecute offenders under the Geneva Conventions 1949 irrespective of where and by whom the crimes were committed

[20] Joyce v Director of Public Prosecutions [1946] A.C. 347

Here English Court competently tried and convicted William Joyce for crimes committed over German radio during WWII

[21] The Lotus Case [1927] P.C.I.J., Ser. A. No. 9

Here the Permanent Court of International Justice found that there is nothing inherently illegal in States extending application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory

[22] Ibid note 11

[23] International Military Tribunal Vol. XXII, p. 466

[24] (1829) 9 B. & C. 446: 109 E. R. 106

[25] Section 3 (b) Nazi’s and Nazi Collaborators (Punishment) Law 1950  – Nothing in this 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 ordinary jurisdiction of these Courts.

[26] Oppenheim (Lauterpacht), International Law (VIII edition, 1955)

[27] Section 8 of Nazi’s and Nazi Collaborators (Punishment) Law 1950

Section 19 (b) of Criminal Law Ordinance 1936

Section 8 of London Charter

[28] Criminal Appeal 336/61 of 1962

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