‘The Eichmann Trial D. Lasok. The International and Comparative Law Quarterly, Vol. 11, No. 2 (Apr, 1962), 355-374. Stable URL: fttplinksjstor.orgsici?sici=020-5893 28 196204520 11 @BA2BACASSBAATETSIED0.COWB2-S The International and Cansparative Law Quarterty is currently published by Oxford University Press, Your use of the ISTOR archive indicates your acceptance of ISTOR's Terms and Conditions of Use, available at flip: feworwjtor org/aboutterms.htmal. ISTOR's Terms and Conditions of Use provides, in par, that unless you fave obtained pcior permission, you may not dowaload an cnt isus of @ journal or multiple copies of articles, and you may use content inthe ISTOR archive only for your personal, non-commercial uss. Please contact the publisher cegarding any further use of this work. Publisher contact information may be obtained at baupsferwer,jstor.orp/jounals/oup.htal. 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But the drama unfolded with his seizure by Israeli agents and abduction from Argentina in May 1960. From the reaction of the Argentinian government to this obvious act of violation of Argentina's sovereignty one might have expected a repetition of the Jacob Salomon Case * in reverse, but history did not repeat itself and Eichmann had no alternative but to go into the giass cage provided for him at: the Jerusalem court, Trae]_made atonement to Argentina, the Security Council © absolved Israel from any blame for the incident and gave blessing to the triat by expressing universal condemnation of the persect tion of the Jews by the Nazis.” The circumstances of bis appre- hrension and Fichmann’s enforced consent to stand trial when in the hands of his captors provided only an argument, albeit unsue- cessful, to challenge the jurisdiction of the eourt.! Indeed, no + Lectager in Tew. Univesity of Baer 1 See the gaol ese of erature lst by R, K, Weeteel, The Neembarg Tralee Tatorsateonat Lets Copndee. 1), pp. A566 2 Me Nceabes Jedanent, Sd ction, PAE tral of Geomon Major War Geiminaie (Se. Loma). 1 pp, 665, 968, AAT; FOL gp ase, iP, am. Ro. JER, VL. 91; VERE, ope WSBT. Rt, pp, 287. 64. BS. 8 SUR, 840, 350) XVETE pp. ats, HR, 382, x, pp Tis, 16, a0, 988, AND, IT, oy 88, eh + Bhutcthe Gtooney Romisii Bedonia Zbrodat Hiteracabich w Poise, Vola AM aed Xin; Zrodms Adolfo Wichmann, (Waren, 190, + fa 188 Jao Grlomen, am ex-Gecuan Sew living ia Gwtzrland, was lad Bepped by Seat agents abd sbdead to Germany hat dhe Seine Goreramea), sbtamed bie release 2 By rewtotion of une 32, 1980. 6G) B'Nsegenntore’ Juisiedon in $i ‘illonal Dave 11382) 30" B.9.B Tee Mite Bicbaane Case (196) 28 Mele Bt 855; reg Bileted tn Vielaton, of Ini Ph Mai Ee CS Gres, et sea856 “Internationol and Comparative Low Quarterly [Vou. 11 matter how underhand the behaviour of the Israsli government ‘may appear to have been in this maiter, the court could not divest itself of the jurisdiction to try the accused. As far as the court was concerned, his consent or otherwise, as well as the mode of securing the arraignment of the accused on eriminal charges, was immaterial,’ and the breach of intemational law committed by order of the Executive could not invalidate the trial. ‘There is, of course, nothing to provent Eichmann pursuing his eivil remedies against his captors. The Indictment ‘Phe indictment against Biehmann contained fifteen charges in all: four described as crimes against the Jewish people, seven as crimes against humanity, one as a war crime and three as member- ship of hostile organisations. Twelve of these charges earry the death penalty ® under the Nazi Collaborators (Punishment) Law, enacted by the Israeli Parliament in 1950. In brief, Eichmann was accused of being instrumental, in eon- spiraey with others, in the extermination of millions of Jews, in creating murderous conditions for miltims and in devising mea- sures to sterlise. Jews, as well as having committed similar erimes ‘against Poles, Yugoslavs, Czechs and Gipsies. ‘The indictment seems to reveal some fundamental difficulties which hal to be overcome in order to present. a ful} and complete list of crimes. ‘Thus we have 2 combination of crimes against Israeli municipal law and crimes against international iaw, the latter leaning heavily on the Nuremberg trials. In particular “ crimes against the Jewish people "and “ mem- hhership of hostile organisations require some comment. The former could be classified as crimes against humanity, or war crimes, and thus merged with the other counts under these heads, ut, of course, the crushing psychological effect would then have 7 Rav 0 Dende Bauulion, RASC, Colderter, Re p. Bi 1040) 1 al Ek: 9 ttlwng Bp Sete, 9 1 RC. 148 bel Sinan v. We Ades oie sin) 17 Be Gof Sera) 8; Hear © Ineo 880) 119 U8 46) Sr sSenson asin) Gah US yan! ER, Teal ta, 3 WSoppe NO, Tiana! Digest (980 4094)," Case No. 16; BE'p. Lopes, 6 FSUmp. 39) ‘tathat Digcet_ (039-10 Cane No. 8. o EENS'a ant paray moog £2. (eciy srw): Gestepe (tres pia 5 hse seo desth pecalty ba areal exept oder tbe lm of 1850 5 dectem 1 ("A peron nko bas committe of the falling offecees— (@) id, donog the" pera’ of tho Nash riginy in 8 bosa county, a0 Ac Staltuting © Soe agaroat the Jem peole ieing the psi of the aos ragare to bos souotry, aa wet oy its tsiag dhe pod of the Steed Woe Wat, i « bul cont © Wa touting eae row} se able to the deni penaley oT‘Apart 1962] The Kichmann Trial 357 toeen lost, the desire for retribution remaining unsatisfied. ‘The planned extermination of Jews and other nationals undoubtedly stinred the conscience of the world and led to the Genocide Conven- tion, ratified by Israel in 1951, Yet to draft the indictment in the terms of the Convention would have undermined the jurisdiction of the Tsracli court, at least as far as such crimes were concerned, fot the Convention (article €) reserves jurisdiction either for an inter- national tribunal or for the courts of the country where the erimes were. committed. The charge of membership of hostile organisations appears somewhat puzzling "in the present trial, Each of the three counts involving those charges was accompanied by the following rider: “This organisation was declared a criminsl organisation by judg- ‘ment of the International Military Tribunai dated Oetober 1, 1946, fn accordance with article 9 of the Charter of the Tribunal annexed to the Four-Power Agreement of August 8, 1948, concerning the trial of the four major war criminals.” ‘The Nuremberg indictment ‘embraced a wider range of criminal organisatious,"? and the Tri- ‘bunal was at. pains to differentiate between them for the purpose ot establishing etiminal conspiracy. ‘There was no unanimity * ‘among the judges and this part of the Nuremberg law seems least. satisfactory in so far as the principle of individusi responsibility for crimes ean hardly be vindicated in all eases and beyond reason- able doubt. by reference to membership of large organisations, in spite of the fact that the leadership was involved in illicit activities, ‘Perhaps it was the realisation that the Eichmann trial was with- ‘out precedent, and the conviction that crimes against international law must, in the absence of a Code of International Penal Law and an International Criminal Court, find their way into the raunicipal systems of law, that were the motives which inspired the draftsmen of the indictment. The latter idea seems to gleam through the arguments of the Attorney-General, and it this school of thought can be further elaborated in terms of municipal law it snight initiste an interesting development. in the prosceution of crimes against international law. M Weatee, op ol p. 190 af segu. cf P. Gatler, “The Biekmane ‘sis (G91) 1 Phe Canadien Bae Jourwal, pp. 36980 1 kan, Leadership Corps of the Noel Porn, Gestapo, &D., 8A. 9.8., Reich (obinet, General Stat and Mhigh Comaand ef Garman Atte’ Borges 2 Tee Soviet Hussisn judge dissenting in ube matter ef the Reich Cabinet sad the General Sta ani High Command: cf. Wactzel, ep. ct, fr 198.358 “International and Comparative Low Querterly [Vow 11 ‘The Cose for the Prosecution ‘The Attorney-General, Mr. Gideon Hausner, opening for the prosecution, described Hichmann as “a new style murderer—one who carries out killings from his desk.” With the exception of one murder the crimes were committed “ over the telephone, by signing an order, by writing a note.” He ascused Kichmann, the Head of the Central Office for Jewish Affairs, of being right in the centre of the enormous extermination process carried ott in a businesslike manner. He described in teat details the techniques employed by the Nazi machine, all leading to one end: that of isolating the Jews from the rest of the ‘community, labelling them, and destroying them systematically, without sparing untold sufferings and maximum degradation. The holocaust spread all over occupied Europe, and Richman, accord- ing to the prosecution, was dashing from place to place controlling his agencies and supervising their work. Before the witnesses for the prosecution were called a tape recorder was used to play over a statement made by Bichmann on May 20, 1060, to his interrogators. Extracts from this slatement purported to portray Kichmann's personal history and the history of exterminations. ‘The notorious Wansce Conference," where the decision upon “ the final solution of the Jewish problem * was taken by Nazi leaders, including Bichmann, was said to be the turning point in his career as the chief exterminator of the Jews. ‘To emphasise Kichmann’s role the Attorney-General read from statements made by Nazi criminals in their death cells. Among them Dietrich Wisliceny,"* once Kichmann’s aide, deseribed him as “a decisive and extremely important factor in the extermination of Jews,"" and Rudolf Hoess," the commandant of the Auschwitz eamp, where some four million people are said to have perished, regarded Fichmann as “a man always full of life and new plans ‘obsessed with the final solution of the Jewish problers.” ‘This was further reinforced by an American witness, Mr. Justice Musmanno, who recalled that Schellenhurg, 2 Nazi intelligence chief, told him that Eichmann was subordinate only to Hitler, Himmler and Heydria Apart from showing that Hichmann was in charge of the physical extermination of Jews, the proscctition endeavottred to '¢ Held im January 1062 ip Barn exburb, whem, soning ta the prosecatin, the Navi Innters deeded tn exterminate cloves ill Europeas Tete, ante tag, 350 008 Brien Jews 6 Rzecated ia Geechosovals in 1946 Bxeonted in Poland (a 1047. 27 The nfrmsion way abated fy Ue witness fo be onpey of joige ab searerises tris im Qetmany”‘Apna 1962] The Bichmann Priat 350 prove, by means of documents, that Richman also had full control ‘over the theft. of Jewish property, which was collected all over Burope and transported to the Reich, ‘The procession of witnesses was interspersed with documents all designed to show the scale of the operation of the final solution and the managerial role played by Eichmann. ‘The prosecution called country by country in this grim death roll, and tried to link. the name of Eichmann with each operation, in order to present complete picture, daminated by the accused. ‘One witness described the only ease of murder allegedly com- mitted by Richmann with his own hands. He told the court that, when he worked in Eichmann’s garden in Budapest, he saw a Jewish boy, acoused of stealing cherries, taken to a tool shed. ‘There he was beaten to death by the acoused. and his bodyguard, Slavik. This Bichtaann denied, and so did Slavik, who vent from Austria an affidavit to that effect. At the close of their ease the prosecution put in evidence an alleged confession of Eichmann to a Dutch journalist, Sassen, in Argentina. ‘The admissibility of this document was contested by the defence and the court resolved ta accept parts in Eichmann’s ‘own handwriting as well as those to which the handwritten sections related. In his final speech the Attorney-General asked the eourt to find the accused guilty of erimes for which, as he had stated in his opening address, “there was no atonement, no forgiveness, no forgetting."* Eichmann’s Defence At the very beginning of the trial Dr. Robert Servatius, the German lawyer who defended Eichmann, made two formidable submissions: (2) that the court was incompetent beeause of prejudice, and (®) that the court lacked jurisdiction to try this ease, Elaborating those points, he argued that Eichmann could not ‘obtain & fair trial in view of the natural prejudice of the people, whilst the publicity ensured by press coverage and television cameras was designed to produce a show trial, the world being the spectators. Bichmann was slready condemned by the Istacli Press, and presjudged by one of his judges."* ‘The aceused, having no financial resourees, could not properly Me, Jostice Hates, oe reported to hate fkeoed Bicboaup to Salen in & Judgment for libel conecraing the exteneination of Fuga dows,360 International and Comparative Lae Quarterly [Vot. 11 defend himself, and no witness would come along on his behalf for fear of being arrested and prosecuted on similar charges. Answering this submission, the Attorney-General. pointed out that no one can be gentiinely nentral in a matter but that a judge by virtue of his training and his office can discipline himself to such an extent. as to exclude his personal and national pain and to conduct a tair trial on the basis of the evidence before the court. This indeed is an clementary feature of criminal proceedings in which no one can expect absolute neutrality, but fairness and justice according to law." To ensure a fair trial Bichmann was allowed to choose his own ‘counsel, and the Government. of Israel offered financial assistance towards his costs. An Istaeli lawyer was to advise the defence on matters of procedure, and the Attomey-General declared that he ‘would be prepared to admit in evidence depositions of witnesses, it such persons could be cross-examined before a German magistrate as to the authenticity of their statements. The court without hesitation overruled the submission as well as the attack on its jurisdiction to try Richman, ‘The question of jurisdiction, to which we have already alluded in connection with Kichmann's apprehension, seems to have constituted the backbone of the defence. Inderd, the Jatter followed the familiar pattern of arguing the formal points and, ia the event of these failing, then falling back on substantive defence. ‘The defence submissions were as follows. Dr. Servatius ctended that the court lacked jurisdiction fram the point of view hoth of international law and of Tsraeli domestic law. Sine the seizure and abduction of the accused constituted a Ihreach of international law, the State of Tsrael, in accordance with the maxim ex injuria non oritur jus, had no right to put him on trial. ‘The proceedings were tainted with illegality and the court ‘ought not to sanction the breach of law involved or the use of force employed by the Israeli agents in securing Fichmann’s arraignment. The Security Council resolution did not specifically deeree that ‘ichmann ought to be tried in Tsrael and the accused himself did not submit of his own volition, althongh he was alleged to have made a declaration to that effect. to his eaptors. True, Argentina no longer insisted on his return bat there was still a possibility that Germany ® might intervene on behalf of her citizen and without M4 Gf. A, L. Geodhar “Questions and Ancware ccosersing the Nuremberg ‘has Gott) 1 LOR, Wat. 0 Par from requesting Pichmsno's surtendst. the West German authorities expronted thelr wlltegnaas to es-aporae with the Tarzal adores,Apnut. 1962] The Kickmann Trial 361 Germany's consent Tsrael’s action would only perpetuate the original illegality. ‘The Nazi Collaborators (Punishment) Act, 1950, was an itregu- lac piece of legislation because it contravened international law as ‘well as natural justice, embodied in the principle nullum crimen sine lege. Tt was invalid under international law because it pro- vided for the punishment of acts which were carried out before the foundation of the State of Israel in 1948, outside the territory of the present State of TIsracl, and which were perpetrated against peonle who were not citizens of Israel. Compared with the London Charter of 1948, drawn up by the War Crimes Commission of seventeen allied nations, the Act was without international sanetion and, as sunilateral measure, it was merely an act of vengeance. In brief the ‘court was invited to disregard the law of 1950 hecause of its extra- territorial and retrospective nature. Eichmann's substantive defence was that he was not in charge of the “ final solution "; that he was free from personal guilt; that he was unfortunate in having to take orders from an inhuman régime; and that, anyway, it was wrong to try him for erimes committed by the Nasi machinery of extermination, which was nothing but a State institution for which only the German State ould be made responsible. Whatever Eichmann did was done in strict compliance with superior orders sanctioned by Hitler himself. ‘The responsibility lay with the State of which he was a servant, s0 that it was the present State of Germany," as the successor of the Nazi régime, which should make appropriate stonement. ‘The defence presented only one witness—the accused, who denied that he was the head of the Central Office of Jewish emigra- tion or that he had anything to do with the extermination camnps and the confiscation of Jewish property. In the light of his own evidence Eichmann appeared as a complete blank, a robot in the service of the Nazi bureaucracy, a little cog in the State machine performing diligently the function assigned to him. Under crass- examination he proved himself a past master of evasion, rarely answering a question and often changing the subject. altogether. Confronted with documents, he claimed they were, full of errors. Even a document emanating from the Nazi Foreign Otfiee, which described him as being in charge of Jewish affairs, was distnissed by Bichmann on the same ground. Although capable of reproducing fa great mass of details his memory faltered when events pointing to the role he was accused of having played were related. Even the DU Tp ia nek quite clear whether the tence referral to West Germany ot to Germany ae whale, athouge far caty the Boos Govaramest has fuovided for somponeation of the Mhine of Nadi tyeanoe reeati 8862 Intemational and Comparative Laso Quarterly {Vou. 11 Phrase “final solution” had a different meaning to him: he thought it meant finding a home tor millions of Jews in Madagascar. However, he admitted at the end that he was not merely the ‘transport officer he persistently claimed he was, but was also in charge of the disposal of Jewish property, and that he was involved in the negotiation of an agreement with the government of Bulgaria in the matter of deportation of Jews from that country. But he repudiated responsibility for the “ death march " of the Hungarian Jews and denied that in the infamous offer to barter Jewish lives for army lorties he held himself out as the man who could halt. the mills of Auschwits.** Finally, in his own words, Bichmann considered himself “guilty trom a human point of view"? of complicity in the mass slaughter of the Jews, but “not guilty from a legal poiat of view."* At no stage of the proceedings was it suggested that Eichmann acted under duress, though this seems to be implied in the plea of superior orders and in the frequent references to the “ inhuman régime,” However, his personal history * shows no evidence of a lack of moral choice during his career although the more deeply involved he became the less acute must. have become his moral judgment. Devoid of conscience and free from religion, Hichmann, in the light of his own evidence, appeared as a man totally subli- mated to his mission rather than a blind sword in a murderous hand, Eichmann’s substantive defence was thus redueed to a demurrer. Yet, in spite of the Nazi legislation in Germany and ‘oceupied countries,2* which, in effect, denied the lega? personality ‘of the Jews and others, there seems to have been no potitive enact- ment authorising the exterminations. ‘The Wansee Conference of ‘Fonuary 1962, attended by Eichmann at which Nazi leaders agreed ‘upon the * final solution,” cannot be said to have heen sanctioned bby law unless, of course, Hitler's word is to be taken to be the law. ‘Whatever the position of the law in Hitler’s days Nazi activities in field were nothing but arbitrary, legal acts condoned by the German administration of justice, and today Nazi laws are regarded as “ ineorreet laws nd no longer valid.” "Needless to add, the treatment of non-Germans, falling very much below the minimum 22 Of. A. Weisberg, Adeacate for the Desit Condon, 1966), p. 73. 438 Ch. ©. Clare, Hichmenn (Loedoo, 19, 3B Lenien, Apis ule on, Occupied Europe (Waskington, 1948). KM ospiesnsai, Potake: pol Prawen Mansortam (Heiiatt4s) ronan, 1946) 1 asec fa jg ofthe Dies Cure Naremborg 190 ted by the Attorney-General Gj att, TE (@) of Law No, 10 of December 28, 1048; ittary Gazette, ils Waitin Sos, pd.Arn. 1962] The Rickraann Trial 28a standard of behaviour io. international Jaw, constituted a series of international delinquencies. Not a single item of Gichmenn's defence passed unchallenged hy the prosecution: ‘The Attorney-General claimed that the Tsraeli court had to do what could not be done at Nuremberg, that is, simply to try the indictment against Bichmann that had been laid down by the War Crimes Tribunal." Tarael had a right and a duty to try the case as no other country, including Germany, was anxious to do 30. ‘The lack of an international penal tribunal or the incompetence of the International Court of Justice at the Hague should not. negative the necessity of doing justice in this exse. Tt was only right and proper that Hichmann was to be tried in Israel as he was accused of crimes against potential citizens of Israel, the State of Israel being in the making since the Halfour Declaration of 1917. ‘The prosecution contended that internationally the jurisdiction ‘of the court could not be challenged effectively as it was doing its duty of trying an enemy of the human race, Nazi criminals had made themselves hostes humani generis and, according to custom, “ everyone who catches them is competent to try them like pirates, slave traders and white slavers.** ‘The plea that the legislation under which the accused was tried was retroactive—a plea which failed at Nuremberg—could not be upheld in Jerusalem. ‘The Nuremberg law confirmed that the Principle nullum crimen sine lege could not be regarded as a rule of international law." As for the municipal systems of law, this principle is by io means universal and, where it is applied, it is accompanied by exceptions. Israel is, therefore, in quite re- putable company, sinee laws to punish Naai erimes ex: post facto have been enacted in several countries.” The Attorney-General argued that Nazi Germany, by its very attitude to law, abdicated from the rule of law and, by 2 series of unprocedented erimes, created a vacuum which mankind had to fil in order to see that the perpetrators of most heinous crimes should not. ga unpunished. The plea of extraterritoriality of the law of 1950 was similarly ‘opposed, Here again, Israel is in quite good company.*® ‘The 18 Bishmapn could ane bean tried fe eBsentio, ne ae Martie Borman, E Gortra H. A. Seth, The Grss af the La of Nations 194%). p40 ot s3g. 4’ Slon, Lagl Conley of Intemational Conairt 84), p. 81H. Rete. Peace thesugh Faw 1948). pA. 2 Australia, Austaa,, Belglim, Dilgetig, Oanata, Coachoslovabia, Despre France," Graven Hellas Hhangasy. aly, Latesbourge Norway. Poland, Remasia, USA. Yogaclaviat cf. ilala in the Britnh one of secypancn, ‘Uscer the Royal Worrtnt of fune TA. 148: Vissaae Maughan, (NO: and Was Grimey (061), p. at eg. 4 Aulba, Beall, Clatborloralter Denar, Winlan, Brenoe, Geemang, Hol land. Faly, Switzerland, 33.0,864 International and Comparative Low Quarterly (Vou. 11 Attomey-General reminded the court that an Knglish court felt perfectly competent to try and convict one William Joyce ® for his crimes committed over the German radio during the last w: ‘The defence submission, concluded the Attorney-General, that the court had no power to pass judgment on erimes committed outside the territory of Tsracl was inapplicable in modem conditions, r- ticularly ia view of the Universal Declaration of Human Rights adopted by the United Nations, and the Genocide Convention of 04s. The defences of act of State and superior orders wore also refuted by the prosecution, the former as a defence of lavlessness, the latter as incompatible with the modera eoncept of law embodied in the London Charter. Hefleeting on the arguments adduced by the prosecution, one cannot help observing that thelr weskest point. was pethops the assertion of a retrospective existence of the State of Israel going back as far as the Balfour Declaration. Even if one could accept this fition, there is no doubt that only small proportion of European Jews would have forsaken the eauntries they had rightly regarded as their home for generations to go to Israel. The right of the Jewish State to avenge the exterminated Jewry must rest solely on a moral claim. Tut the plea that the Israeli law of 1950 must he regarded as invalid because it offends against the principle of tersitoriality of criminal law can hardly be sustained. In spite of the Genocide Convention, 1948 (article 6) being still ted down to territorial juris- dictions, the Nuremberg law quite clearly confirmed the rule that “States may establish wibunals for the punishment of persons guilty of war erimes if the perpetrators fall into their hands.” * Presumably the same applies to all erimes governed by the prin- ciple of universality, such as piracy and, probably, erimes against Inumanity. In the absence of an express prohibition under international law, the Permanent Court of International Justice found * that there is nothing inherently egal in States extending the applica- tion of their laws and the jurisdiction of their courts to persons, property and acts outside their tersitory. International law does not restrict sovercign States to exercising jurisdiction in their own trritory in respect of any ease which relates to acts which have taken place abroad and in which they cannot rely on some per- missive rule of international law.o! As we have observed earlier, 121 Joyce vy, Diveitn of Public Prosecutions (1940) A.C. 547 2 Televeslcnat Mitearg Tribunal, VoL. T, 9, 97. Poe Lotus Cave, 10H POLS.. Ser, 8 Reet BeAvs 1962} The Eichmann Triat 65 Iarecl is not alone in talting advantage of her freedom “ to adopt the principles which the State regards as best and most sult- able,"?* although for obvious reasons she cannot elsim the benefit of precedents established by other countries.:* ‘As for the extension of the traditional concept of the hastis humani generis, and the prosecution of such persons tinder the uni- versal prineiple, this appears to be of recent origin. Although the definition of pitacy shrank in the terms of article 16 of the Hligh Seas Convention, 1958, States have undertaken to prosecute offen- ders under the Geneva Conventions, 1940 ¥ irrespective of where and by whom the crimes were committed. ‘The plea of retroactivity did not save the Nazi leaders at Nuremberg, but. what should be horne in mind is that the Charter cof the Nuremberg Tribunal is “retroactive only in so far as it established individual eriminel responsibility for acts which at the time they were committed constituted violations of international law, but for which this law provided only colledtive responsibi lity" ‘The Charter is regarded as declaratory of rules of inter- national law, as it gave expression and sanction ‘to perennial precepts of justice and humanity. If the principle aullum erimien sine lege does not apply in international law, it would seem that it can be equally disregarded by municipal courts administering international law. In the provitee of munieipal law the principle nallion crimen sine lege is often enshrined in written constitutions as a guarantee against the abuse of power through retrospective legislation. Under the Constitution of the United States, for example, Article 3, sections 9 and 10 forbid the passing of ex post jacte laws. But there is no express provision against retroactivity of pensl laws in Britain, and courts in common law countries would not. refuse to apply tetrospective Jaws, if expressly stipulated by Parliament.“ Derived trom a concept of natural justice, the principle rine 8 hid, 20 tae the tial of Radolph Foes ia Poland, fo MMP, for esiirs tamed i ‘aed chety“aeaione Poth national » Gf. The Geneva Conventions Ae 3891.8 & 0 Ble. 2 o $2. (Gonpentions eelting to. i) the amelstation of the eendtion of. the vcoinded and suk tp aimed forces in the eld" 2) the amieltcration of the Studion of wounded, se and’ skiperaciel Saembery of armed force at ae hg tome of pnern of en the poetion of dan pr HE Rede Wt the Then of the Nureneng Dl Contre 4 Pr Sept i Toepgtonal Saws Hla EG ae Joterantional Miltary etbana?. Vol. XXIL pp, #41. 48-4: U.S. % Von List. faermatcnal Miiterg Peburet, Vol Le ‘host: 8, Sehwarsen bers The Faden at Nero” Ga Beall Wet agate, Te no, contra, Wiese Matha opt 0 Be en tig eos Grapihe TYE GE. HA, ak 8; Wie 7. in Shatipe VBye O6ti) LR BART A868 International and Comparative Law Quarterly [Vol 11 crimen sine lege should operate to ensure a fair trial and to protect those who come to court with clean hands and a cleat conscience. Quite apart trom the preceding considerations it was clearly too much to ask the Jerusalem court to disregard its law, bearing in mind that the court was not sitting in the capacity of « constitu tional tribunal competent. to decide whether an Act of Parliament should be declared ultra vires.*! ‘The lesson of Nuremberg is that. crimes, even though sanctioned bby a political order of a sovereign State, cannot go unpunished if they have shocked the conscience of the world. Indeed, since certain Nazi sctivities, apart from being internationally illegal, were morally objectionable, and sinee the perpetrators were cer- tainly aware of their immoral character, there was no room for the plea that under their own laws the Nazis were immune from pun- ishment. A fortiori, Kichmann could hardly expect compassion from the Jerusalem court administering @ mixture of international and Israeli municipal Law. The plea of the act of State was expressly exchided by the London Charter (article 7}, and this transformation from collective to individual responsibility hes been generally approved? The organic doctrine exalting the separate personality of the State wears thin, and it is being realised more and more that States are merely forms of organisation, and that crimes against international law axe committed by men, not by abstract entities. ‘Thus it is only by punishing individuals, who commit such crimes, that the law can be vindicated. Eichmann’s defence that the machinery of extermination was a State institution and that the State alone ean atone sounds, therefore, rather old-fashioned, Society collectively can make reparations, butt punishment must be meted out to thase individuals who worked the machinery of extermination with murderous zeal and efficiency. Kichmann could not shelter behind the ephemeral body of the Nazi State or behind superior orders, as the rule that subordinate rust only obey lawful orders is gaining ground." A subordinate may he placed in an extremely difficult position if he serves an inhuman régime, but, as long as he has a moral choice,** he must be responsibie for his erimes. The defence of superior orders was 45 OL Manemin, v Pears, 198, Ak SLM, Bs Croft. Dunphy (10951 AC. 2 HD Kelson: Peace throughs La, p. 09; G. Dabra, Zar Problema des Boe! rcurafvechs 1980) 23 1 Of, Bruish Manuat °f iféitery Law, amend. %, but see Viseount Maughas, op, of pp. (519, 4 Tabemalnat Mitiary Tribunal, Vel. XXTL, p. 468, and U.S. Odendarl op at, Wal. LV, pp. dideaPl; U.S. v. Ovesfelly No. 8 Brite of War (Crm Val. V! ppe 163-106: of. Seheaenenherget, op. ap. LIEAvan 1962] The Richman Print 367 rejected in advance by the London Charter, since the very essence fof the Charter is that individuals bave international duties which transeend the national obligation of obedience imposed by the indi- vidual State.* Even German courts, funetioning in an atmos- phere of reverence towards superior ardere, did not excuse crimes committed in obedience to orders.* Eichmann could hardly claim immunity hecause of his fidelity to superior orders, nor could he expect such orders to constitute a mitigating factor * in his ease. ‘The defence of tyranny ** embodied in the plea cannot, come to succour one who was said to be subordinate in the execution of the “final solution” only to Heydrich, Himmler and Hitler.*° The Judgment Tn their Jearned and elahotate judgment ** the court examined all the pleas advanced hy the defence and substantiated their con- clusions by reference to @ great mass of preeedents and learned texts, They rejected the submission that the court had no juris. diction and refuted the contention that Hichmann’s illegal seiaure and abduction affected the competence of the court to try him. In the words of seetions 6 and 7 of the Criminal Law Ordinance, 1986, the jurisdiction of Israeli courts extended to acts done in whole or in part within the boundaries of the State, but section 8 (h) provided that “ nothing in the Ordinance shall derogate from the liability of any persons to be tried and punished for any offence according ta the provisions of the law on the jurisdiction of the Israelé courts with respect to aets done outside the usual jurisdie- tion of these courts.” Israeli courts derive jurisdiction in respect of extraterritorial offences from the express provisions of the Criminal Amendment (Foreign Offences) Act, 1955, and the Nazi Collaborators (Punishment) Act, 1950. As far as intemational law is concerned, Israeli law follows broadly the British system,* recognising certain roles of customary 12 FB Mosgenstarn, “Jodicial Prugtica and. Supremacy of Jnteroationel, Law (950) Boi, Vewr Brel Tat 8, quot Crude eee 1948), . A. © German Milisary Cade, att 41, 2. Cl. The Dover Caxtle Anmuct Digest of Publi Taternatlinal Loin Cour, 1925-1885, Cate Mo. 2A 4 The Leplan Charie, at. 8, 16 AL “Geashare," Guests and Angweye congereing the Nareniberg Triale (104) LG Res: 027, (2 Intemational Mitdary Tribunal, Vol. XXOT, 188 Hoefer ta. the lindinge of the court have Bean aber foao an zai Hansiaton of the judgment Chereaiter quoted as The Fadgment), Dialvict (Coort of Javusaem, Coinal Cawe Ne. #6701 52 Oppeneim's faernationel Law fd by Lavtenpacht) (tk ed, 1965), Vol. pam § la808 International and Comparative Law Quarterly [Vou Mt international law per se as part of the law of the land, and acknow- ledging the supremaey of statute ° law when in conflict with inter- national law. The court had, therefore, no option but to give effect to the 1950 Act as intended hy the legislature and could not enter- tain any argument as to its validity. ‘The power of the Israeli State to enaet the law in question is based on the universal character of the crimes listed in the indict ment. as well as on their specific character as being designed to exterminate the Jewish people. ‘The court concluded that the Jurisdiction of the forum deprehensionis was founded upon ancient and modem authority,” whilst the right of the State of Israel to punish the offenders is clearly derived from the protective principle, that is, the right of the State to preserve its own existence."* In the latter respect the court enlarged on the doctrine of the “ linking point "” which enables the State to prosceute offences committed abroad and resolved that “a crime intended to exterminate the Jewish people presented the necessary connection with the State of Israel." * The court conceded that. “the violation of International Law through the mode of the bringing of the aceused into Israeli terei- tory pertains to the international level, namely the relations bbetween the two countries concerned *” ** but, relying on Anglo- American precedents and writings, observed that “it is an estab- lished rule of law that. a person standing trial for an offence against the laws of the land may not oppose his being tried by reason of the illegality of his arrest or of the means whereby he was brought to the jurisdiction." ‘The court was of the conviction that the Israeli law of 1050 was not repugnant to the ideals of natural justice and equity or inconsistent with positive law, Although retroactive, it did not create new crimes but merely provided a legal basis for the punish- ‘ment of individuals responsible for the commission of what must 1 Thi, po 5 Croft ¥. Dunphy (1998) A.C. 158, at TOA; Mortensen ©, Petere % Ghigae Faris Giels, C. 8. 18: HL Grotiay, De Juve Ball ac Pers (62%). Ba hag be pani He Vail Le Da deen” 8 ou Gap 19, Mnngin Wh atann Compares Oe Lee of Bron Bod BV, hap. 8. i: 15; Th. Wheaton. Elomenla of Taternatonal Law {0c Kapil iin, p. 19h: GC. Hyde, Intematinat ms tind ed 19h Wol'T, ocr GP Be ‘cower, “University of orsiction avez Wa Gries 8 x California’ Eswe Beciee WIP: EL, Denustien de Wahees fer Princpes Moderass da. Drew Posat tatarnatonat (08) po 1960 8 Gaset, Infraction. wterrotionale (LO). pp. SL and 63 s+ Oppel, p. aiy Wels Ep. 85: Dahm, vp. ne p28: Joyce 8. DP plaisy a. ae 3 Phe Judgment» 8 2 Dhit 8H Mid 2a‘Avett, 1962] The Eichmann Trial 369 hhave been known to them to be crimes, ‘That they were fully aware of the legal nature of their activities was obvious, not only from the nature of their acts, but also from their endeavours first to disguise and cover up their deeds and then to destroy the evidence by burning the hodies of the vietims and disposing of the records and documents, ‘The court quoted with approval from the Nuremberg Judg- ment * that “the maxim mulium crimen sine lege is not a limite- tion of jurisdiction, but it is, in general, a principle of justice * as well as from the Judgment against the Operation Groups (Binsatzgruppen Case) that “there is no taint of ex-post-Jacto-ism fn the law of murder * and added that “the acctised cannot com- plain that he is heing tried by court which did not exist when he omitted the act.” Ina judgment of the German Supreme Federal Tribunal quoted by the court, “ the expulsions of the Jews, the object of which was the death of the deportees, were a continuous crime,” and in another judgment concerning the responsibility for the murder of mentally deranged persons ** on Hitler's order the same ‘Tribunal intimated that in 1040, at the Jatest, it was quite impossible to be unaware of the criminal activities pursued by the Nazi régime, The court eategorieally rejected the submission that. whatever the accused did in his offical capacity should be classified as acts ‘of State, for the exterminstion of helpless people can never be regarded as compatible with the concept of a State governed by Taw. Tes reaction to the defence of superior orders was similar. Discussing the defence of the act of State the court disassociated itself from Kelsenian theories and resolved that “* under Inter- national Law Germany bears not only moral, but also legal responsibility for all the crimes that were committed as its own “ Acts of State * including the crimes attributed to the accused." ‘The court thought, moreover, * that the responsibility of the State 1 Depovtaions from Western Europe were mate under the guiee of “ rset aye at he exteraiatoe cape abd gbeton were Sranied Baers rope 0 Phe Judgment, x. 7 St Thad 8 35 11 Thad 9, 8% quae, A, To Gaedhert, (ae Soe Sardbiat Reson, 6 2 The dadgment. a. 7, quot 1 SeyR 659/, 3 Moat. 9 9, quot. 1 807% 20460. (6 Tha Thdgment, «28 quot. H. Kolean, “Collective snd Tadividosl Respons: hes la Moterdatinal Lae wih prin regatta tee Paesbent of ar Ceminals " (1018) 29 California Laue Rerun 820 at ey; Ho alg, Peace firoagis Lew G94 pu ft et seq.) Ho Relan, Proneiples of Iuteraionad Tra (1982) p28 a Sop 80 The Jedgeeent, «28. ‘The Legality of the Neremberg Trial870 International and Comparative Law Quarterly [Votu 11 does not detraet one iota from the personal responsibility of the accused for his acts.” # As for superior orders, these cannot be pleaded" in the defence under either section 8 of the Nazi Collaborators (Punish- ment) Law, 1950, oF section 19 (b) of the Criminal Law Ordinance, 1936, or section 8 of the London Charter, and the court found no reason for regarding such orders as a mitigating factor in this particular ease. Fichmann was found guilty on all fifteen counts of the indict- ment, that is, crimes against the Jewish people, crimes against humanity, war erimes and membership of hostile organisations. Although he was not found directly in charge of the * final solu- tion * the court rejected his claim that he was only a transport expert and branded him as one who ‘was not a puppet in the hand of others, but one of those who pulled the strings.” © ‘Therefore his participation in the actual extermination opera- tions was considered only of @ secondary importance “ hecause the legal and moral responsibility of him who delivers the vietim to his death is no stualler, and may even be greater, than the liability of him who does the victim to death, In particular Richmann was convicted as follows: {a) on the first and second counts, in which he was accused of being concerned in causing the slaughter af millions of Jows ‘and of placing millions in conditions ealeulated to cause their death; (b) on the thied count, that of causing sufferings to the Jews by “enslaving, starving and persecnting them ” but only in respect of offences committed after August 19415 (©) on the fourth count for sterilisation and birth prevention measures only in the Theresienstadt camp and not elsewhere as stated in the charge sheets (@) on the fifth and sixth counts, which dealt with the same offences as in the previous counts but were classified as crimes against humenity and thus embraced others than Jews (6) on the seventh count, of plundering Jewish property 11a uo perk 315108 0) 0,9 4.288 Qh, Tl ttre ieee Ty LAY OP AMA Oat aie cheat Bee Shame Bo Sal"Ss oe om ye dh py mde he Na Br Ore He se hasApne, 1962] The Kichmann Trial sn (8) on the eighth count, of war crimes, that is, persecution of the Jewish people in Germany and the German occupied countries; (g) on the ninth count, of a crime against humanity involved in the deportation of more than half a million Poles; (h) on the tenth count, concerning the deportation of Slovenes. Charges of murder of thousands of gipsies and some ninety children at Lidice, included in counts eleven and twelve, were not proved, but the aceused was concerned in their evacuation and thus guilty of another erime against humanity, Finally, as ‘a member of the S.S., the S.D, and the Gestapo he was found guilty of the membership of hostile organisations but only as from May 1940, Eichmann was acquitted of crimes against the Jews perpetrated before the outbreak of the war and of the specifie charge that he personally murdered a Jewish boy in Budapest. He was, however, found responsible for the intraduetion of gas as a means of mass slaughter, the efficieney of which had previously heen tested at Auschwitz by Hoess, his deputy. ‘After the judgment, but before passing the sentence, the court heard the final address of both the prosecution and the defence as well as a speech of the accused. ‘The prosecution demanded death, the highest. punishment. under Tsraeli lave, and claimed that this was mandatory under the law of 1850, The defence appealed for lenieney on the ground that the accused was caught up in the psychology of the men around him, thet he was merely executing orders and that what happened to Richman could have happened to anyone. Being a German the sentence should follow German lew. In his final speech Fichmann adopted the tone of an accuser rather than an accused, He protested bis innoeence, blaming others for his own acts, particularly his superiors who, he claimed, abused his loyalty. He accused the witnesses of being biased and untruthful and reiterated his previous contention that he neither illed nor ordered killings, that he was @ victim of misconception and mereless fate. ‘The court, mindful of the fact. that there is no punishment to fit % Cf, Biuletya Olowne; Komisit Belanis Zhondni Hilerwsbich w Peles, op fat Vol MLL, pe 190 at tog Ie Sehy AuchuitesBurkenaw Concentration Coop (Weree, Hee, ps 200" 2 Theee ie ae death penalty ia West Germans.a7 International and Comparative Law Quarterly [Vow 11 the crimes charged in the indictment,” sentenced Bichmann to death in consideration that “for the punishment of the accused and the deterrence of others the maximum punishment authorised by law had to he imposed.” Conclusions ‘The trial of Adolf Eichmann can be deseribed as a trial by documents and circumstantial evidence. ‘The survivors of the holo- caust gave a blood-eurdling testimony of atrocities and sufferings in order to build up a general picture of the “final solution ” rather than establish the personal guilt of the accused. It was only against this background, and in the light of documentary evidence, that the sinister gure of the accused assumed reslistic features as one of the executors of the “ final solution." Bearing in mind the psychological limate and the place of the trial it is quite impossible to judge objectively whether or not the rules of evidence governing hearsay and relevance were infringed. ‘The proceedings came very close to an English trial, but the nature of the crimes involved and the role filled by one particular person in the running of the machinery of extermination must by necessity invoke doubts which emerge in all marginal cases. Yet the dignity and restraint of the court and the desire to do justice which dominated all stages of the proceedings must be put on record because these are uncommon features of show trials, This trial established in a dramatic show of purpose the claim of the young Israeli State to represent World Jewry.” ‘The heir and succestot te the exterminated and the leader of the tiving has demonstrated its power and determination to avenge and to protect them. The experience under Nazism, recorded in the proceedings, must have produced yet another argument for the creation of the Jewish State and, perhaps indirectly, a support for the right of seit-determination’ which has hardly any piace in positive international law, In spite of the fairness of the proceedings, the trial constitutes, in the author's submission, a very dangerous precedent, When a rman is spirited away from the protection of a sovereign State and put on trial by his eaptors for crimes which he allegedly committed in some other country or countries, against people who were related 1M Gf. V. Gallance, ‘The Cave of Adolf Kidhmann (London, 1968), p. 51 oN. vara cote af hres tera! lagen agar death te auck © aan, on ihe tianner cnet gets fhe Srcifaion af 2 whole peng 174 This want to base bean reoneniend in the Agresment between Iara and the ‘Garman Wederat Republic of 148d on the couipenaaien of the Jewish victims ef Nani opprestion.. tne grout ot combenestany futce, tt tes‘Apatt, 1962] The Eichmann Triat are ‘only by bonds of race ot religion to the country in which he is tried, stich eomtry not even having been in existence when the crimes were committed, ail formal barriers separating arbitratiness from administration of justice appear to be broken, Legal form lism embodied in the strictness of the prosedure, and the observ ance of the ritual of the eriminal trial, form, no doubt, the strong- est safeguard against miscarriage of justice, yet, paradoxically enough, formal objections to the jurisdiction of the court had to bbe overruled by an overriding desire of doing justice in this case. ‘There is no uniform practice ® regarding the contention that illegai seizure of an accused in violation of the territorial sove- reignty of a State deprives the captors af the power of trying him, though their right to do so in normal circumstances may not be in doubt, Regard aust. be had to the danger of notorious criminals escaping retribution simply beeause of an irregularity in their apprehension. But, where convictions are quashed for a defect in the indietment, ot any breach of the rules of evidence or proce- dure, there is always a possibility of retrial in municipal courts. ‘The absence of stich a possibility must not be disregarded when considering the predicament of the court in international eases. Having no exact precedent either in the Nuremberg trial or in the trials of Nazi criminals by individual States, the decision of the Jerusalem court seems to rest on a synthesis of international and national precedents—-a product of judicial distillation clothed in the erudite form ot the judgment. ‘This has created a precedent, albeit a dangerous one that may encourage imitation in less meri- torious cases. Yet, with no guidance from the international community and conscious of the unsatisfactory trials of war criminals in Germany,” Israel had to act in order to discharge the enormous burden assumed as soon as Fichmann had been tracked down. [As in the ease of the Nuremberg trisis, jurists will not be unani- mous in their appraisal of Eichmann’s trial and the legal bases om which it was conducted. ‘This triai has further exposed one of the 1 Gf nota Taupin: and cittres Yacoare . Cotas, SLR. (4) V2, Anal Digort p08 1840," Cane Wo. 18) Vadlaeel Hammond, Te" (gi) BBs Anton Digest 1-109 Case No. 1B: Be Joka (Seep. 16H), Vat. Uh. p. Neb, ‘nal Digest 1880-1984, Case Mo." ea adr Beagles, Mevgentea. 9 Bi 28 et ep 96 Gf Coane e DP. [9A] A.C. 289 74a) On Telpaig, Trials, O. Schwactencesger, International Lass and Petal Marea Pascecrnean onda Tats, Appeadle Upp. ALL-Aat, & Meo The Lepa'y Trike (han fons 38) (©) On pont Worl? Woe Il postion, F Honig, Ceimieal Justice in Germany ‘Tudep" RED) The Veer Mook of World Agaire 13 et scp *874 International and Comparative Law Quarterly [Vots 11 chiot defeots of the present system of international law, namely, the absence of an Intemational Criminal Tribunal, and has reminded the world that something must be done in order tn avoid inter- national justice remaining in the hands of victorious nations or individual States acting like international “ vigilantes.”