The Trial of Adolf Eichmann

Session No. 55

14 Sivan 5721 (29 May 1961)

Presiding Judge: I hereby declare the fifty-fifth Session of  the trial open.

Attorney General: With the Court’s permission, we are obliged to interrupt, for a short time, the evidence about Hungary, and to request the Court to hear evidence of a general nature. I shall call Professor Gilbert. Professor Gilbert will testify in English.

Presiding Judge: Is he Jewish?

Attorney General: Yes.

[The witness is sworn.]

Presiding Judge: What is your full name?

Witness: Gustave M. Gilbert.

Attorney General: Professor Gilbert, what post do you occupy at present?

Witness Gilbert: I am chairman of the Psychology Department of Long Island University in Brooklyn, New York.

Q. What are your professional qualifications?

A. I am a qualified psychologist, having received the Doctorate at Columbia University in 1939. I also hold a diploma from the American Board of Examiners in Professional Psychology.

Q. Were you in military service during the Second World War?

A. Yes, I was commissioned as a military psychologist with the rank of First Lieutenant, and after spending some time examining misfit soldiers, I was sent overseas as a military intelligence officer, because of my knowledge of German.

At the cessation of hostilities, I was assigned to the International Military Tribunal in Nuremberg, where the major Nazi war criminals were about to be tried. That was the first trial of the major war criminals.

Q. What was your function at the Nuremberg prison?

A. It was, first of all, to make psychological examinations of all the defendants – Goering, Hoess, Ribbentrop and so on, in order to be informed of their mental state, in case any question of insanity arose, and also to keep watch over them – to be with them at all times, so that I would have my finger on the pulse of their morale and so on, and do everything that was possible to ensure the conduct of an orderly trial.

Q. Were you their doctor in the sense that what they said to you was a medical confidence between patient and doctor?

A. No; I am not a physician in the first place, but more important than that, their position there, and my position there was clearly not one of clinical confidences. In other words, I was there in the uniform of the American army – I was a military psychologist; it was my responsibility to watch over them, and I never at any time pretended that anything they said to me was in confidence. There was just one limitation on this, and that was that, as the Nazis ridiculed and cursed each other behind one another’s backs, they would sometimes ask me to please not say anything about it to the others until the trial was over. I kept that confidence.

Q. Professor, did they know that you were Jewish?

A. At first they did not. I wanted to see whether they could tell according to the Nazi ideology that you could always tell “these despicable Jews.” Not a single one could. However, Streicher did think that some of the judges were Jews. They were of course not – none of them. So I let it be known that I was Jewish and they, in turn, did not seem to react to this, beyond making it clear that they never had anything against Jews personally, that this was all silly ideological nonsense, and that some of their best friends had been Jews.

Q. Did the fact that you revealed to them that you were a Jew have any effect on your subsequent talks with them?

A. There was not really much, except in the case of Streicher and Rosenberg, who seemed to be a little nervous about it, but they reacted in rather a strange way: Streicher, for instance, decided that, since the Jews were fighting courageously to make a homeland in Palestine, he wanted to “lead” them, because he admired their courage.

Outside of such nonsense, there was really no appreciable effect. I behaved absolutely correctly – they appreciated it, and the study went on in a perfectly dignified professional manner. Perhaps I might add that there is ample evidence that I had the respect and cooperation of the defendants – perhaps Dr. Servatius himself can confirm this.

Q. Let us continue. Did you give any official evidence before the International Military Tribunal in relation to your task?

A. The only actual official testimony was in connection with the sanity hearing for Rudolf Hess. I testified – I gave the final testimony that Rudolf Hess was, in fact, sane; and this testimony appears in Volume I of the proceedings of the International Military Tribunal. Now, aside from that, of course, I had examined all of the defendants and was with them all through the trial.

Q. Did you subject them to psychological tests?

A. Yes. I administered intelligence tests and personality tests to all of them before the trial started, to be sure that these would be valid, because it was of supreme importance to get to understand the Nazi mentality.

Q. Did you keep in contact with the accused persons also after the trials had begun?

A. Oh yes, I was in intimate daily contact with all of theNazis on trial in Nuremberg; I was with them every day in the court, I spoke to them during the court intermissions and during the lunch hours, and had extensive conversations with them at night in their cells and over the long weekends and recesses from court. This went on from the beginning of the trial to the end of the trial, without losing a day.

Q. Did you keep notes of your conversations with these accused?

A. Yes, I made very extensive notes after every conversation – but not in their presence. I recorded the summary of our conversations with extensive verbatim quotations, and compiled this in my own diary; and the defendants were unaware of this until about the end of the trial.

I might add that I further substantiated these conversations with notes by getting additional documentary evidence – you would say (protocols – I would say) – to substantiate what we had talked about; first, for psychological evidence, and secondly, because some of it was so incredible that I felt I had to have a record of these people because my colleagues would never believe me.

Presiding Judge: What was the material that you recorded?

Witness Gilbert: There were essays written by the defendants in their own handwriting which further substantiated what we had talked about.

Attorney General: These essays are still in your possession to this day and have not yet been published – is that correct?

Witness Gilbert: That’s right. These essays are in my  possession, and most of it has not been published – hardly any of it, in fact.

Q. Your diary is here with you, as I can see – the one you kept at Nuremberg.

A. Yes, these are my original diary notes, in their original binding, just as I kept them in Nuremberg. In fact, it just so happens that I had them locked in a trunk for the last ten years, and they only arrived by diplomatic pouch last night, so they are substantially as they were in Nuremberg.

Q. Did you publish part of it in 1947, under the name Nuremberg Diary?

A. Yes, that is correct. The original edition of the Nuremberg Diary, which represents, I should say, about two-thirds of the material in my original diaries, was published in 1947.

Q. Has this now appeared in a new edition?

A. Yes, a new edition was published just this year, because of the renewed interest in Nazi war crimes, and it is an authentic reproduction of the original edition. In fact, it went to press before I even knew it, and it was printed from the original manuscript.

Q. Is this the book? [Shows the witness a book]

A. Yes, this is the book. This is the authentic copy of the original edition, which was edited by me from my own original diary notes.

Attorney General: I shall now submit this, for the Court’s convenience, if that should be desirable. I have another copy.

Presiding Judge: Perhaps you have two more?

Attorney General: I shall submit the second one as well, at the end of the session.

Witness Gilbert: I have a further copy.

Presiding Judge: Thank you very much. This will be marked T/1168.

Attorney General: We shall come back to this diary of yours, but meanwhile I wanted to ask you a number of questions. When you were in Nuremberg, did you see Judge Musmanno
there?

Witness Gilbert: Oh yes. He wasn’t Judge Musmanno then. He was Commander Musmanno of the Navy. I remember him very well.

Q. When was that?

A. It was somewhere around the early part of the trial. I don’t remember the exact date.

Q. What was Judge Musmanno doing there?

A. He was on two missions, as I recall. One was to investigate the death of Adolf Hitler. The other one pertained to naval military intelligence, and I don’t think I’m free to speak about that. It’s quite irrelevant to the trial.

Q. Did you introduce him, Judge Musmanno, to some of the accused?

A. Yes, I did. I particularly remember that because he was the only one outside of some psychiatrists who was allowed to come down into the cells. In other words, everybody was kept out of the gaol cells – except myself, chaplains and so on, and occasional psychiatrists for the psychiatric examinations – but Musmanno had special permission to come down, and I introduced him to several of the top Nazi defendants to satisfy his commissions.

Q. Did you take him to Goering?

A. Yes. Goering was one of them. Since Goering couldn’t speak English, I remained for that interview as his interpreter.

Attorney General: At this stage, I request the Court to rule, by virtue of its powers under Section 15 of the Nazis and Nazi Collaborators (Punishment) Act 5710-1950, that Professor Gilbert should be permitted to recount what he heard at Nuremberg from the following persons: Goering, Ribbentrop, Keitel, Frank, Oswald Pohl, Ohlendorf, Rudolf Hoess (the commandant of Auschwitz), and Kaltenbrunner.

All these conversations are relevant to the subject under discussion; some of them are also linked to the evidence of Judge Musmanno and to the matters on which he testified, others are linked directly to the Accused, to persons with whom he was in contact, and with remarks which they made about him, with their mentality, with the Nazi personnel structure…

Presiding Judge: With whose mentality?

Attorney General: Of the accused persons.

Presiding Judge: Of the persons who were accused there?

Attorney General: Of the persons who were accused there. We also showed Professor Gilbert the psychological tests which we conducted on the Accused here, and we shall ask him to make a particular comparison between the tests that he was shown here by the government psychologists and the tests he conducted there.

Presiding Judge: Were tests conducted here as well?

Attorney General: Tests were conducted here. We shall submit them in the proper way through the persons who conducted them. These are public officials of the Ministry of Health. Psychological tests were made. We shall submit them. Professor Gilbert has seen them.

Presiding Judge: Very well, that may be an additional question.

Attorney General: Yes, this is an additional question. But I am explaining why I am interested in evidence on the personality of an SS man engaged in exterminating Jews. Together with it a certain question of comparison will arise.

Presiding Judge: At the present moment this matter is not so clear to me.

Attorney General: Perhaps the Court will allow me to go over this stage by stage?

Presiding Judge: Perhaps we could separate the issues and leave this question of the psychological tests on one side for the time being.

Attorney General: As the Court pleases.

Presiding Judge: Yes, Dr. Servatius?

Witness Gilbert: Pardon me, may I receive a summary of what is being discussed?

Presiding Judge: No, this is a legal argument. If it would be more comfortable for you to be seated, you remain where you are; if not, you may leave the witness box. Perhaps some member of the Prosecution, Mr. Bach, the Assistant State Attorney, will explain to you briefly what is going on here, as we did in the case of Judge Musmanno. For that we have a precedent.

Dr. Servatius: If a psychological research is going to be presented here dealing with what the Nuremberg accused said and thought, I should have received, in the first place, the tests that were conducted here concerning the Accused himself.

Presiding Judge: Dr. Servatius, pardon me. I have already said to the Attorney General that we shall deal separately with the question of the psychological tests. We now have here an application to hear evidence on what the witness heard from the Nuremberg accused whose names we have heard. This is the first question, irrespective of the psychological aspect of the matter. What is your reply to that?

Dr. Servatius: I believe that such a question has already arisen here once, and it was settled by the Court. I believe that this is hearsay evidence, and I want to voice an objection, something which I have already done previously.

Judge Raveh: Mr. Hausner, did you only mention persons who are no longer alive?

Attorney General: Only persons who are no longer living. I have here eight names.

Presiding Judge:

Decision No. 58

We shall permit evidence by this witness about matters which he heard from those persons whose names have been mentioned by the Attorney General, on the grounds we gave in our Decisions 7 and 29, by virtue of our powers under Section 15 of the Nazis and Nazi Collaborators (Punishment) Law, 5710-1950.

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Q. If I understood you rightly, he denied his own responsibility for the persecution of the Jews and the deportations?

A. I had not accused Ribbentrop of exterminating Jews. I was there talking with him about Hitler – and whether Hitler was alive or dead. And he immediately began to defend Hitler, that Hitler wasn’t responsible for these terrible conditions which were found in the concentration camps and he was not responsible for the terrible things that the SS men did and the man who was really responsible, he said, was Adolf Eichmann and his great regret was that Hitler had placed this unlimited faith in Adolf Eichmann. That was the motif of his entire monologue.

Q. You were in Nuremberg for a long time during the hearing of the trial before the International Military Tribunal and long afterwards. Do you know whether documents were submitted from which it appears that Ribbentrop himself insistently demanded these measures?

A. I do not question that at all.

Q. If so, could I refresh your memory and read to you an extract from a document dated 17 July 1944 – a message from Ribbentrop that was sent to Ambassador Veesenmayer?

Presiding Judge: Has this already been submitted to us, Dr. Servatius?

Attorney General: This apparently refers to the subject of Hungary.

Dr. Servatius: No, this has not yet been submitted. It says here:”The Fuehrer expects that the Hungarian Government will now implement, without any further delays, the measures aimed against the Jews in Budapest, with the exceptions which have been agreed upon, in principle by the Government of the Reich on the suggestion of Ambassador Veesenmayer.

But these exceptions should not be allowed to give rise to any delay in the practical steps directed against the Jews in general, for otherwise it would be necessary to cancel the consent to these exceptions which was given by the Fuehrer.”

Do you read this as something done by the Minister at Eichmann’s urging?

Witness Musmanno: I certainly do not know the history of  the entire Foreign Ministry of the Third Reich, but I do know this, Dr. Servatius, that in Ribbentrop’s attempt to exculpate himself – as you apparently assume – by accusing Eichmann, he failed in this – because he was hanged.

Now, what gave verisimilitude to the reply of Ribbentrop and the reply of Goering and the reply of Hans Frank and all the others that I mentioned this morning, in which they say that Eichmann was the man who headed the extermination programme of the Jews, was that they did not select – and if they were really clever in that respect and were not spontaneously speaking the truth – they did not select the man who might have been more obviously acceptable as the culprit, and that was General Mueller who was at the head of the Gestapo.

So therefore it was not a matter of logic; it was a matter of telling just what the facts were; and it does not follow that just because a criminal is accused and even convicted, that everything he states must be erroneous and a falsehood, because – as you well know, Dr. Servatius – in Nuremberg practically all of the men who were convicted on their own words, on their own statements, on their own confessions.

Q. If I understood you correctly, you spoke of Eichmann as an SS General?

Presiding Judge: He was speaking about General Mueller, head of the Gestapo. These were expressions of opinion – not evidence.

Witness Musmanno: Yes – I was attempting to show that what these men said was to me true, because if they were merely trying to exculpate themselves…

Dr. Servatius: Sir – that is sufficient for me. I should like to read to you a portion of the Nuremberg Judgment and to hear your opinion as to whether the statements made here are correct or not.

“He (von Ribbentrop) played an important part in Hitler’s Final Solution of the Jewish Question. In September 1942 he ordered the German diplomatic representatives accredited to various Axis satellites to hasten the deportation of Jews to the East. In June 1942, the German Ambassador to Vichy requested Laval to turn over 50,000 Jews for deportation to the East.

“On 25 February 1943 Von Ribbentrop protested to Mussolini against Italian slowness in deporting Jews from the Italian occupation zone of France. On 17 April 1943 he took part in a conference between Hitler and Horthy on the deportation of Jews from Hungary and informed Horthy that the ‘Jews must either be exterminated or taken to concentration camps.’ At the same conference Hitler had likened the Jews to ‘tuberculosis bacilli’ and said if they did not work they were to be shot.”* {*Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 1947, Vol. I, p. 287.}

Presiding Judge: After quoting this passage, what is your question? What do you think of this, Judge Musmanno?

Witness Musmanno: There is no doubt, I think, about the veracity of what has been read. There is no doubt whatsoever about the wisdom which dictated those words. There is no doubt about the justice embodied in all those words and there is no doubt about the correctness of the decision that was rendered against Ribbentrop which took him to the gallows. He was hanged for what he did, as pointed out in that judgment.

Presiding Judge: It seems to me that Defence Counsel’s question was something else: How do these remarks fit in with the questions that were asked about Eichmann’s pressure on Hitler, and so on?

Witness Musmanno: Ribbentrop was speaking in the quicksands of irrefutable guilt, and he tended to pull down those who were guilty with him.

Dr. Servatius: I understood that you spoke to Kaltenbrunner, who was Chief of the Security Police of the SD after Heydrich, and I believe that he, too – according to what you stated – said that he had no connection whatever with the persecution of Jews, that this was the responsibility of someone else. Is that correct?

Witness Musmanno: I did not say that he said that he was not guilty. I said that he said that the men mostly responsible for the extermination of the Jews were Hitler, Himmler, Bormann, Heydrich and Eichmann. After all, I was not accusing these men. They were merely talking to me, and telling me and, perhaps, out of a guilty conscience, protesting that they were not the ones – although they did not put it that way. They merely referred to Eichmann; they all seemed to agree that Eichmann had a very powerful and authoritative hand in this programme of the extermination of the Jews.

Presiding Judge: You say they did not speak about their own guilt regarding the extermination of the Jews. Is that right? None of them?

Witness Musmanno: Yes.

Q. None of them?

A. No. They did not go into that.

Judge Halevi: Did you talk to them before their trial, or after their trial?

Witness Musmanno: It was during the trial.

Q. During their own trial.

A. Well, yes. But it was not at the trial. You see, I arrived there to enquire about the facts regarding Hitler. And so I went from one to the other, trying to find out when they saw Hitler last, what was his attitude and that time there was a great deal of discussion about the…

Q. Before judgment was given by the International Court?

A. Oh yes.

Q. Thank you.

Dr. Servatius: And this was when judgment had not yet been passed, but you were there during the interrogations and you were present at the sessions as an observer?

Witness Musmanno: Yes, I was an observer at the first trial.

Q. Were you present at the interrogation of Kaltenbrunner?

A. You mean at the trial?

Q. Yes.

A. Yes.

Q. Did Kaltenbrunner not allege all the time that he had never himself signed any order for executions and did he not persist in that allegation when his own signature on such orders were shown to him?

A. Yes, he did. And he was proved to be a liar over and over.

Q. You also spoke to Frank, who was Governor General of Poland?

A. Yes.

Q. If I understand correctly, Frank, too, declared that he had nothing whatever to do with the persecution of Jews and deportations?

A. No, no! He did not say that. No – the contrary, he admitted his guilt on the witness stand.

Q. How do you, then, account for the fact that the same Frank who wrote a diary extending over 39 volumes, did not at all mention Eichmann in one of them?

A. There were many things that Frank did not mention in his diary. I remember reading the able speech of the Attorney General in this very trial, in which he stated that Frank made no reference to the forced march of the Jews into Poland, of the tortures that they underwent, the privations that they suffered. Of course his diary was quite extensive, but I have no way of knowing what he put in or what he left out.

Q. And you said that Frank did not deny his guilt before the American Tribunal at Nuremberg, but do you know what the Tribunal itself said about this in the judgment? I am now going to quote part of the judgment…

I.M.T. vol. 1, p. 298:

“At the beginning of the testimony, Frank stated that he had a feeling of ‘terrible guilt’ for the atrocities committed in the occupied territories. But his defence was largely devoted to an attempt to prove that he was not in fact responsible.”

Q. Was this a true admission of guilt or a false account, which merely served to relieve him of the moral burden when he saw that there was no way of escape for him because of his own diary.?

A. Frank was a very volatile individual. He kept changing his view. Professor Gustav Gilbert in his book NurembergDiary tells how one day he would be very contrite and very penitent and then the next day or a few days later he would be defending what he did and would even in a way be defending Hitler. I spoke to him in Italian.

He spoke very good Italian and he said to me that the greatest regret that he would have as long as he would live was that he did not shoot Hitler when he had the chance to do so. And yet later on he would be defending Hitler. So I do not know what you attempt to derive from these quotations.

Dr. Servatius: This is not the moment for drawing conclusions from the evidence. This should take place at a later stage in the trial.

You spoke to the General of the Air Force, Koller, and he said that during the last days he was together with the Fuehrer Adolf Hitler in the bunker underneath the Reich Chancellery. Is that correct?

A. Well, I do not mean by the last days right up to the day that Hitler actually shot himself in the mouth and took poison. But he was with Hitler in the bunker during the last period. He left the bunker, I think, before General Ritter von Grein arrived to supplant Goering. He travelled all over Germany attempting to summon airplanes and so on. He was not up there at the last moment, no.

Q. These were at any rate the last days of the battle for Berlin. Therefore, I take it that military problems were probably the focal point of the conversations?

A. Not when he was starting with me. It was all over.

Presiding Judge: No, no, he was referring to the conversations between Koller and Hitler; that they would have been likely to be talking about military problems.

Witness Musmanno: Hitler assumed this to be very much a military problem to execute the flyers, to deter other flyers from dropping bombs on Germany.

Dr. Servatius: Was it not strange that precisely at that time they should talk about the Jewish problem, as if it was the most burning and pressing, at a time when the end was upon them, because they were talking about Jewish pilots?

Witness Musmanno: The Jewish Question was uppermost in Hitler’s mind all the time. In his last will and testament, with his very final breath he blasphemed the Jews. There was never a time when he had any vacation from his main object in life to kill Jews.

Dr. Servatius: And the Air Force General Koller, who was, in those days, so close to Hitler, did he have any different ideas? Was he a friend of the Jews? How am I to understand that?

Witness Musmanno: I do not know Koller’s feelings. I did not know them, but certainly in my conversations with him he made it very clear that he looked upon the shooting of the Allied pilots, men in uniform, as sheer murder. And that when Eichmann said, and mind you he had the approval of Kaltenbrunner, even Kaltenbrunner went along with him and said: Yes, it is not right to kill these men in uniform.”

And then Kaltenbrunner said: “But you know Eichmann is very jealous of his prerogatives and his job is to kill Jews, and if you are going to protect these fliers and save them you cannot save those who are Jewish born, had Jewish parents, were of Jewish lineage, were of Jewish blood.

Q. Who was then responsible for the war prisoners, was it the civil authority, the party authority or the military itself?

A. I would say the military. But so far as executing prisoners, that was a matter of the SD and was incorporated into Hitler’s orders, so regardless of where the competence lay, when Hitler declared what should be done, that for them at that time was the law.

Judge Halevi: Excuse me, Justice Musmanno, did I understand you correctly that the subject of Jewish pilots, this specific Jewish Question of pilots, did not come up in the conversation between Koller and Hitler himself?

Witness Musmanno: No, no. Koller of course was very brave in refusing to go along with this order and knowing that there was the order, that the prisoners had been turned over to the SD, he went to see Kaltenbrunner. And of course he was very much surprised that Kaltenbrunner went along with him.

Dr. Servatius: Was that not courage after the defeat? Could not Koller who was constantly with Hitler have stated his position to Hitler himself? Do you not believe that this was a process of thought worked out by Koller after the War, in order to shift the guilt on to Eichmann?

A. Koller was not accused of any crime – he did not have to shift any guilt. I was talking to Koller about Hitler, and I must repeat that that was the primary object of my conversations with these various individuals whom I have mentioned.

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28 NISSAN 5721 (14 April 1961)

Presiding Judge: I declare the fifth session open. The Attorney General may continue his argument.

Attorney General: May it please the Court. I have already in previous sessions, replied to most of Defence Counsel’s oral and written submissions and arguments. To the extent that Defence Counsel relies on the minority opinion in the Nuremberg judgments and on the views of those few authors in whose eyes the Nuremberg principles are still a matter of controversy, I have only the following to say: At the heavy cost of millions of souls, international law has made a breakthrough and finally, even if belatedly, laid down its principles in writing.

It did not renew anything, but simply formulated them. And this Court – of the nation which was the first to proclaim in human history “they shall beat their swords into ploughshares” – this Court will not lend its hand to turning the clock back, to nullifying the achievements which the human race accomplished after two world wars in one and the same generation. Meanwhile the principles of the Nuremberg trials have found their way into those charters and international treaties which I have already mentioned. I have not seen a single judgment since the War in which the Court refused to take notice of, and act in conformity with, those principles. The State of Israel will not be the one and only country to do so.

And now with somewhat more detail on one argument which I have already dealt with but which necessitates a more specific reply in the light of the written argument, and that is the argument of “Act of State.” This argument covers twenty pages and more of the written submissions.

Presiding Judge: Is that not Kelsen’s theory?

Attorney General: Kelsen’s theory. And this is how Defence Counsel sums it up on page thirty-five of his argument:

“It follows, therefore, from this paragraph that the principle of ‘Act of State’ denies any competence to
the State of Israel. Any judicial process against Eichmann will, therefore, be a departure from international law.”

To the extent that the matter relates to international law, a decisive answer has been given to this argument in the Nuremberg trials. It was rejected outright. In the judgment of the International Military Tribunal, in the Blue Series, on page 223, it is stated (I am reading from the English edition):

“The principle of International Law, which under certain circumstances, protects the representatives of
a state, cannot be applied to acts which are condemned as criminal by international law. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings.”

Presiding Judge: This book of Kelsen’s was published before the judgment – in 1944?

Attorney General: Yes, but Defence Counsel says that Kelsen did not change his mind even in the 1952 edition. He still stands by the doctrine that there is no common denominator amongst the Family of Nations in international criminal procedure, and that each one should go his own way according to his own justice and his own laws. Kelsen still does not acknowledge the great achievement of the judgment of 1 October 1946, and he is amongst those who query that ruling, possibly to this day – I do not know about his recent publications. But his is one of the few individual voices, and the balance in international legal discussions is decisively in favour of the Nuremberg principles.

It is so in international treaties and in international legal literature; and if the Court would look at what Oppenheim says today in his second volume – this for the time being in its seventh edition only, but it also goes back to the year 1952 – the Court would see that Oppenheim rejects Kelsen’s idea. I read from page 566, paragraph 251:

“In contradistinction to hostile acts of soldiers by which the latter do not lose their privilege of being
treated as lawful members of armed forces, war crimes are such hostile or other acts of soldiers or other
individuals as may be punished by the enemy on capture of the offenders. They include acts contrary to
international law perpetrated in violation of the law of the criminal’s own State, such as killing or plunder for satisfying private lust and gain, as well as criminal acts contrary to the laws of war committed by order on behalf the enemy State. To that extent the notion of war crimes is based on the view that States and their organs are subject to criminal responsibility under International Law.”

And on page 568:

“The fact that a rule of warfare has been violated in pursuance of an order of the belligerent Government or of an individual belligerent commander does not deprive the act in question of its character as a war crime; neither does it, in principle, confer upon the perpetrator immunity from punishment by the injured belligerent. A different view has occasionally been adopted in military manuals and by writers, but it is difficult to regard it as expressing a sound legal principle.”

There is a “different view” but that is not the correct legal principle.

Judge Halevi: Mr. Attorney General, does the whole indictment deal with the War period or are there also details prior to the War of 1939?

Attorney General: There are details preceding the War period. I shall reach these presently, your Honour. If your Honour is asking me, I am prepared to reply immediately although it interrupts my main argument on this point.

Judge Halevi: Because the authorities relate to the War.

Attorney General: Not all the authorities relate to the War. The authority of the International Military Tribunal does relate to the War, but the authorities of the Green Series which is based on Law No. 10 of the Control Council does not relate solely to the question of the War, but there occurred an interesting incident of a comma and a semicolon in the London Charter, which led to a difference between the Russian text and the English text in the definition of crimes against humanity.

The English text reads as if only such acts as were connected with war crimes were also crimes against humanity; and in a special accord signed between the powers this version was accepted for crimes against humanity. But already the I.M.T. itself had dealt with conspiracy to make war, also in the period which preceded 1 September 1939, and it found the major war criminals guilty of such conspiracy also in respect of their acts which preceded the declaration of the Second World War. But it is true that in the case of crimes against humanity it limited itself to the War period only, because of that difference between a comma and a semicolon which the Court will find in the course of the Moscow Declaration, the London agreement and the Nuremberg Charter, in Volume Three of the Green Series.

Presiding Judge: I think we have a local decision on this point – I think of Judge Lamm.

Attorney General: We do, but I go further and say that the Law of the Control Council had already not been adversely affected by that fault in punctuation and furthermore the Nazis and Nazi Collaborators (Punishment) Law 5710-1950 is not linked specially to the War period but applies to the whole period of the Nazi regime, and it represents an Israeli contribution to the filling of that void of which I have already spoken at length; the legal vacuum that the Nazis created, deliberately and maliciously, to cover up their crimes.

From the point of view of Israel’s internal law, the defence of an “Act of State” finds expression in Section 19 of the Criminal Code Ordinance of 1936, in both its parts. It is this section that gives justification for criminal acts…

Presiding Judge: Mr. Hausner, is this relevant to the matter being discussed now – does our internal law concern the matter being discussed?

Attorney General: Yes – I say that section 19 does not apply. This is what the legislator stipulated in the Nazis and Nazi Collaborators (Punishment) Law in this way, as it were, it introduced into our law the same provision which was inserted into the London Agreement, namely that Heads of State, officials and agents of the State should bear responsibility. I say that the exclusion of section 19 for the purposes of the Nazis and Nazi Collaborators (Punishment) Law is equivalent to introducing that same positive provision into that legislation, making the agents of the State responsible – despite the fact that they could claim that they performed their acts in consequence of their official duties. Perhaps I may analyse this argument if I have not explained it sufficiently.

Presiding Judge: I understand. I simply have some doubts. Possibly they wanted to abolish the restrictions contained in section 19 itself. Section 19 is limited.

Attorney General: We do not have the defence of an “Act of State” in Israel law except in accordance with section 19. This is the justification – that a man can say “I acted in order to execute a particular law”- that is Section 19(a), or “in order to execute a particular order, a lawful instruction which I received”- that is Section 19(b).

Judge Raveh: Mr. Hausner, are you actually suggesting that we deal with this question and take a decision on it without having heard proof as to the facts?

Attorney General: This of course would be my alternative reply. But I submit that also for the purposes of the preliminary discussion and assuming that Defence Counsel will succeed in proving that everything done by the Accused was done by virtue of orders, even then that is no defence and that is no justification and he cannot derive any help from it. We shall prove to you that he departed from the
limits of his instructions, and that he was much more extreme, much more obdurate, much more enthusiastic in the extermination of the Jews than was required by the orders he received.

Judge Halevi: This is premature at this stage.

Attorney General: We shall prove this even if Defence Counsel manages to establish that all that Adolph Eichmann did was only within the limits of his instructions. I want to say further: The deletion of Section 19 for the purposes of the Nazi and Nazi Collaborators (Punishment) Law, which is the effect of Section 8 of that Law, which states specifically that Section 19 of the Criminal Law shall not apply, denies to him and withholds from him the possibility of such a defence.

Judge Raveh: So then what do we have to lay down at this stage – when we have to decide the question of competence?

Attorney General: It must be laid down that the question of an “Act of State” is no defence, and makes no difference at all.

Judge Halevi: Defence Counsel is not arguing at this stage that this is a defence, a defence on the merits, but that this negates the jurisdiction, and that to the extent that the Israeli law does not admit this defence, this in the opinion of Defence Counsel would be contrary to international law. Therefore, there is no need now to go into the facts and the internal Israel law.

Attorney General: I understand this. But he is saying: You should not have enacted such a law, the Knesset of the sovereign State of Israel had no right to pass the law as a whole, and even more so had no right to insert Section 8.

Presiding Judge: You are only showing us now what Section 8 is.

Attorney General: Precisely. I shall show you what the Israel law is. And I shall show you that Section 8 is in accordance with international law and with the trend of the law of nations.

In his book War Criminals, their Prosecution and Punishment (1944), Sheldon Gluck (Professor of Criminal Law and Criminology at Harvard University), while dealing with the argument of “Act of State” for the purpose of these crimes, writes on page 134:

“So runs the argument. But the examination of the Act of State theory demonstrates its artificiality, legalistic nihilism and inapplicability, when dealing with the effective enforcement of the laws and customs of warfare.”

Presiding Judge: I think Dr. Servatius cited that paragraph in his arguments. He obviously challenges him.

Attorney General: He quotes an adjoining paragraph, but this makes no difference. I maintain that Sheldon Gluck set out the correct law. And if we look at what American military tribunals, which were only called military, decided in regard to the same law…

Presiding Judge: On page 30 of Defence Counsel’s arguments you will find the words: “artificiality, legalistic nihilism and inapplicability.”

Attorney General: Yes, he quotes later, in the following section, from page 139 and hence I have relied more on that passage. It is clear that there is an artificiality in this argument, since, if such a defence were accepted, under the conditions of a dictatorship such as Germany, there could only have been one accused, and that would be Hitler, and since that man is no longer alive, all the rest of those who are accused of perpetrating war crimes could say: “Our hands did not shed this blood and our eyes did not behold, since he was the only one authorized to give orders, and we all were his soldiers who were ordered to submit and to obey.”

Judge Halevi: Not even he. As Head of State he, too, was immune.

Attorney General: And he could also have been immune according to the second doctrine of “Act of State,” namely that the Head of State, the sovereign, has immunity. But I am not required at this time to deal with the subject of to what extent the Head of State is immune or not.

International jurists have queried this ever since Napoleon was exiled to Elba. There are those who think that it is possible to take action against a Head of State, but I do not have to go into this. It is not Adolf Hitler who is sitting before you, but Adolf Eichmann. If we were to accept the theory of “Act of State” as a defence, then anyone who carried out Hitler’s orders could justify himself for the most terrible crimes. The conscience of the world shrinks from this.

This is what an American military tribunal had to say in Trial No 4 – the concentration camp case, United States versus Pohl. This is to be found in the Green Series in Volume 5, on page 968:

“The Germans had become so accustomed to regimentation and government by decree that the protection of individual human rights by law was a forgotten idea. The fact that the people of the Eastern territories were torn from their homes, families divided, property confiscated, and the able-bodied herded into concentration camps, to work without pay for the perpetrators of these outrages – all this was complacently justified because a swollen tyrant in Berlin had scribbled “HH” on a piece of paper. And these are the men who now keep repeating: “nulla poena sine lege.”

And, on page 974:

“This disgraceful chapter in the history of Germany has been vividly portrayed in the judgment of the
International Military Tribunal.”

The reference is to the persecution of the Jews.

“Nothing can be added to that comprehensive finding of facts, in which this Tribunal completely concurs. From it we see that the unholy spectacle of six million human beings deliberately exterminated by a civilized state whose only indictment was that its victims  had been born in the wrong part of the world of forbears whom the murderers detested.

Never before in history has man’s inhumanity to man reached such depths.”

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Furthermore it is necessary to discuss the view that, at any any rate the verdict of the International Military Tribunal had created international law (which possibly was then new but is now in force).

A discussion of the Nuremberg judgment is also indispensable for the reason that the membership in an “enemy organization” has been imputed as a crime to the Accused and the legal definition of an “enemy organization” in sec. 3 (b) (1) of the ” Nazis and Nazi Collaborators (Punishment) Law” expressly refers to art. 9 of the Charter and to the judgment of the International Military Tribunal in the case of the main war criminals and therefore incorporates in its provisions expressis verbis the provision of the London Charter and the findings of the Nuremberg verdict.

(aa) Before entering into a detailed critical discussion, an important statement on the question of crimes against humanity has to be made:

Art. 6 (c) of the Charter, according to its wording, also allowed the prosecution of such crimes against humanity committed by Germans in Germany against German citizens before the outbreak of World War II. It is to be emphasized that the International Military Tribunal refused to recognize the existence of jurisdiction of such a wide extent:

“With regard to crimes against humanity, there is no doubt whatever that political opponents were murdered in Germany before the War, and that many of them were kept in concentration camps in circumstances of great horror and cruelty…

The persecution of Jews during the same period is established beyond all doubt.

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; but from the beginning of the War in 1939 war crimes were committed on a vast scale, which were also crimes against humanity; and insofar as the inhumane acts charged in the Indictment and committed after the beginning of the War did not constitute war crimes,
they were all committed in execution of, or in connection with, the aggressive war, and therefore
constituted crimes against humanity.”[133]

Telford Taylor, the American chief prosecutor in the American trials of war criminals held after the trial of the main war criminals, has therefore summarized most properly these statements of the International Military Tribunal as follows:

“Atrocities committed before the war, horrible as they were, were declared as being outside the jurisdiction of the International Military Tribunal, according to the wording of the Charter.”[134]

The origin of this restrictive interpretation of art. 6 of the Charter is to be found, probably, in the feeling of the Tribunal – although unexpressed – that, after all, its jurisdiction is based upon the laws of war and occupation.

The Nuremberg trials against war criminals held after the trials against the major war criminals adopted, by the way, the restrictive interpretation of the International Military Tribunal.[135]

Now, Israel certainly cannot rely upon the laws of war and occupation in order to justify its claim for criminal jurisdiction over the Accused Eichmann. However this result does not make unnecessary a detailed discussion of the London Charter and the Nuremberg judgment. For it is too obvious that the objection might be raised that the London Charter might also be interpreted quite properly – even that it ought to be interpreted – so that the prosecution of crimes against humanity would be permissible even if they had not been committed “in execution of, or in connection with, the aggressive war.”

This objection is to be expected all the more as the restrictive interpretation of the International Military Tribunal had already been expressly subject to negative criticism in comments on the Judgment.[136]

(bb) The London Charter and the legal principles underlying the judgment of the International Military Tribunal at Nuremberg are not in conformity with international law which had been in force in 1945/46, and in particular at the time when the alleged offences were committed.

The view – namely that neither the Charter nor the judgment had merely given positive expression to international law which anyhow had already been in force – had been held by many respected and unbiased observers already at the time when the prosecution of German war criminals and crimes against humanity by the occupying powers was only at the stage of planning. Additional voices in the same sense were heard after the end of the Nuremberg Trials.

The present State Attorney of the Land Hessen, Bauer, believed himself entitled to state, in a book written
already prior to the end of the War, that the Allied Powers were conservatives holding up the status quo also in its moral and legal aspects in their struggle against Hitler. “Their victories will also be the victory of the existing law.”[137]

In conformity with this fighting tendency, the meaning of the planned trials against the German war criminals would therefore be the victory of existing law over revolutionary law (namely the law of National Socialism).[138] The actual course of events has proved this expectation of Bauer’s to be erroneous. Actually, the London Charter and the Nuremberg judgment themselves amounted to “revolutionary law” (it is
true – without having the law-making force of a revolution, as will be demonstrated later on).

In proof of the fact that the London Charter not merely defined and laid down in writing international law which had been in force, but that its legal principles rather constitute a novum in the history of international law, a statement of the British delegate to the London Conference (meeting of 29 June 1945) and – later on – acting British Chief Prosecutor before the International Military Tribunal, Sir David Maxwell-Fyfe, is most characteristic:

“What we want to abolish at the trial is a discussion as to whether the acts are violations of international
law or not. We declare what the international law is, so that there won’t be any discussion on whether it is international law or not.”[139]

The revolutionary nature of the “law” of the London Charter has therefore frequently been observed and objected to. Thus, both Christian churches in Germany have criticized and emphasized this fact in their official reaction to the Nuremberg military tribunals:

“The sentences passed by the Nuremberg Tribunals are based upon new and up to now nowhere specified international law.”[140]

“The Nuremberg law courts condemn Germans according to a right until now unknown in Germany and to which the nations applying it against Germany are not willing to submit.”[141]

In this respect the harshest and most far-reaching comment has been made by the American scholar of International Law Borchhard:

“However little sympathy needs to be wasted on the Nazi bigwigs there condemned, attention must be called to the fact that it was not an old or new international law which was applied, but a new municipal law, a criminal law, which was not theretofore known.”[142]

The best demonstration for the total departure from the international law which up to then had been in force, in the London Charter and the Nuremberg judgment of the International Military Tribunal, will be found in two examples which, it is true, are not directly relevant to the Eichmann case, but which illuminate glaringly the aforesaid nature of the Charter and of the judgment. These are the questions of the criminal nature of an aggressive war and of the reliance upon the plea of superior orders.

The criminal nature of an aggressive war:

The Nuremberg judgment of the International Military Tribunal has advanced the theory that art. 6(a) of the
Charter – which makes the planning and carrying out of an aggressive war a criminal offence – is in conformity with existing international law, since this already recognizes the existence of the offence of “crime against peace.”

In particular, the tribunal, basing itself upon the Kellogg Pact, not only arrived at the correct conclusion that this pact had branded every aggressive war as being contrary to international law, but it went much further and based upon the Kellogg Pact also the criminal nature of every aggressive war and, in addition to further grounds, the individual criminal responsibility of organs of a State which planned, prepared and carried out the aggressive war.[143]

The inaccuracy of this view has been recognized already at an early date[144] and will be hardly contested today seriously any more. The wealth of comments cannot be quoted here otherwise than by way of selection.

E.g., the Swiss scholar of criminal law, Professor Pfenninger, demonstrated already in 1945,[145] that an
aggressive war, it is true, is prohibited by the Kellogg Pact and by the covenant of the League of Nations, but that it had not been declared to be a crime and an extraditable offence. It had to be “stated that today neither a rule of municipal criminal law nor a rule of international criminal law would justify a “judgment of guilty.”[146]

Pfenniger declares that he was at a loss to understand how the Nuremberg Trials – which had not yet begun at that time – would overcome this difficulty.

The same opinion was voiced, prior to the end of the War, by Fritz Bauer[147] who concluded:

“Therefore, guilt for the (outbreak of) war is not punishable.”[148]

But this view is held not only by continental jurists, but mainly – and frequently in very strong terms – by Anglo-American jurists.

The following, e.g., is the comment of the London scholar of international law, H.A. Smith, in respect of the problem:

There is no offence in international law providing for the individual punishment of an aggressive war.

“It may safely be said that no lawyer would have dared to say in 1939 that the rulers of a State could be
punished as individual criminals for preparing an aggressive war.”[149]

Smith has also voiced this opinion elsewhere and discussed on that occasion in detail the legal meaning of the Kellogg Pact.[150] Again, Smith’s comments have met with Morgan’s[151] express approval (“perfectly correct”).

Likewise, a certainly unbiased witness for the soundness of this view is Lord Hankey whose own name was included in a German list of war criminals of the Allied Powers[152] and who, therefore, has every reason to hold a view loaded with resentment.

In addition to the foregoing, the comments of Kelsen,[153] Finch,[154] Guggenheim[155] and Jescheck,[156] making an aggressive war a criminal offence, exceeds the scope of existing international law.

Verdross’ lucid and convincing demonstrations shall summarize and conclude the discussion of this question:

“The London Agreement, however, exceeds the scope of general international law by…making crimes against peace punishable. This term comprises, according to the Charter, planning, preparing, starting and carrying out of aggressive wars, as well as a participation in such undertakings.

These offences had been unknown before in international as well as in municipal law. The Nuremberg International Military Tribunal, it is true, tried to show that crimes against peace had already been prohibited by rules of general international law, an aggressive war being a crime, at any rate, since the
conclusion of the Kellog Pact.

However, in so doing, the Tribunal had overlooked the fact that the Kellogg Pact had imposed obligations only upon States, but not upon individuals. It also had not provided for sanctions, but only laid down that a state which violates the pact will be deprived of its benefits – that is to say: it can be attacked legitimately by all the other states, parties to the covenant.

The Covenant does not contain any hint at the existence of criminal sanctions against individuals.[157]

The assertion in the judgment in question that the respect of obligations in international law can only be guaranteed by the punishment of the guilty politicians and their accessories may be correct de lege ferenda. However, it is contrary to general international law which provides only for sanctions. But this principle applies, as a rule, even today, the covenant of the United Nations providing exclusively for collective sanctions against aggressive wars and other breaches of the peace and threats to peace (art. 39ff. of the Charter of the United Nations)…

No doubt the London Four Power Agreement is therefore a penal law with retrospective effect (ex-post-facto law) which can only be justified as an order of the occupying powers under art. 42 of the Hague Convention (No.IV) respecting the Laws and Customs of War on Land, 1907.”[158]

The plea of superior orders:

The annulment of the plea of superior orders as making an offence not punishable by art. 8 of the London Charter[159] constitutes a particularly dubious example of the extent and in which manner the Allied Powers had deviated from the principles of existing international law in order to deprive their German enemies of means of legal defence rooted in the existing international law.[160]

The main model for the repeal of the plea of superior orders is to be found in an amendment of sec. 443 of the British Manual of Military Law, made only in April 1943. This amendment was made exclusively – as confirmed by Morgan – in anticipation of the planned trials of war criminals:

“It (i.e. the amendment) was, as I have observed, only made, in view of the Nuremberg Trial, in the nick of time.”[161]

The origin of this amendment itself is to be found mainly in Lauterpacht’s162 complete reversal of his own opinion in this question.

In the 5th edition of Oppenheim’s International Law – i.e. during the War – Lauterpacht had adopted, still without any change, Oppenheim’s doctrine – which recognized the “plea of superior orders” as justification – from the 1st till the 4th editions of the book, and had thereby confirmed this doctrine. The former wording of sec. 443 of the British Manual of Military Law constituted a nearly literal adoption of Oppenheim’s doctrine.

In an article published in 1944, “The Law of Nations and the Punishment of War Crimes,”[163] Lauterpacht abandoned the view previously held by him and advanced exactly the opposite view, claiming that it reflected existing international law. Lauterpacht’s article had been made accessible to the British Government already before its publication;[164] the amendment made already before the publication of Lauterpacht’s article in sec. 443 of the British Manual of Military Law amounted to a nearly literal
adoption of Lauterpacht’s new thesis.

The amendment of the British Manual of Military Law, as well as the sudden reversal of Lauterpacht’s opinion, met in England with harsh and frequent polemical and sarcastic criticism.165 The following statement by Smith is characteristic of this criticism:

“Perhaps it is not unfair to doubt whether Professor Lauterpacht, who has justly earned the position of a
distinguished scholar in this country, would have ventured, while serving in the Austrian Army in the First World War, to act upon the doctrine which he now holds.”[166]

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1. The active personality principle

The active personality principle relates to the nationality of the offender and, under certain circumstances, it enables the punishment of the offender by a tribunal of his home State for offences committed by him abroad.

Israel cannot rely, in Eichmann’s case, upon the principle of international law either; for the Accused is a German citizen, and not an Israeli citizen.

3. The passive personality principle.

According to this principle, a state is entitled to claim jurisdiction over a foreigner – and again subject to certain restrictive conditions – if one of its nationals has been injured by an act of this foreigner which has been committed abroad.

This principle, too, does not empower the State of Israel to prosecute and try the Accused Eichmann. For during the period in which the crimes imputed to the Accused were committed, the State of Israel did not yet exist at all, so that on that legal ground alone it is not possible that by the offences of the Accused nationals of the State of Israel were injured.

At this stage the claim has to be discussed that Israel is entitled to rely upon the passive personality principle at least in respect of the prosecution of “offences against the Jewish People.” It is asserted that the legal point of relation to the passive personality principle is to be found in the Declaration of Independence of 14 May 1948, as well as in art. 3 of the Draft Constitution of the State of Israel, where Israel is called the “National Home of the Jewish People.”

In this connection, the meaning of the idea in constitutional law need not be discussed. Moreover, no doubt
can arise as to the historical and political contents of this idea, as defining the goal of the State. However, it must be emphasized that the idea of the “National Home of the Jewish People” has no meaning whatsoever in international law.

For it is not in conformity with international law actually in force that a state is entitled to create a point of
relation determined only by racial tests in order to apply the passive personality principle. From the point of view of international law, Israel is precisely not the representative of all the Jews, whatever their nationality, but only the representative of nationals of the State of Israel. Certainly, there can be no doubt that belonging to the Jewish race alone does not create legal relations between a Polish citizen of Jewish origin and the State of Israel. But the existence of such a relationship is a condition precedent for the vindication of criminal jurisdiction by the State of Israel in respect of an injury inflicted upon this Polish Jew.

The recognition of the right of the State of Israel to prosecute offences against the “Jewish People” – and
therefore against any person belonging to the Jewish race whatever his nationality – by reason of the determination of Israel’s goal as “National Home of the Jewish People” – will bring about the obvious and cogent result that an Israeli statute would have to be classified as unobjectionable and admissible in international law, if, e.g., thereunder the killing of an American citizen belonging to the Jewish race, carried out in the U.S.A., would be punishable and an Israeli tribunal would be granted jurisdiction in that respect. It seems that this untenable but logical result shows quite clearly that belonging to a certain race cannot amount to a point of relation for the jurisdiction of a state over a foreigner according to the passive personality principle.

However, contrary to the legal position which has just been described, the view has been put forward that it was the Federal Republic of Germany which attributed a meaning in international law to the claim of the State of Israel in its capacity as “National Home of the Jewish People”; for in the Agreement dated 10 September 1952 between the Federal Republic of Germany and the State of Israel (the so-called Reparations Agreement),[113] Israel was recognized as the representative of the “Jewish People,” as meaning the total number of all persons belonging to the Jewish race. In this sense, it is stated, e.g. by Green[114]:

“Israel is entitled to represent Jews who have no nationality or who were victims of Nazi oppression – a
claim that has been recognized by the Federal Republic of Germany (Agreement between Israel and the German Federal Republic, 10 September 1952).”

This view cannot be approved; for it is obviously incorrect already in view of the terms of the Agreement itself. The preamble of the Agreement states, in no uncertain terms, the reason in law for the German payment of reparation to Israel:

“AND WHEREAS the State of Israel has assumed the heavy burden of resettling so great a number of uprooted and destitute Jewish refugees from Germany and from territories formerly under German rule and has on this basis advanced a claim against the Federal Republic of Germany for global recompense for the cost of the integration of those refugees

NOW THEREFORE the Federal Republic of Germany and the State of Israel have agreed as follows:”[115]

The preamble of the agreement supports, therefore, in no uncertain terms, the assertion that Germany as well as Israel did not consider the German payments as a global recompense for the injury caused by National-Socialist rule to the Jews wheresoever in the world, and that therefore they are not a global recompense of damage caused to individuals, which the State of Israel is entitled to claim.

The German payments to Israel are rather characterized in no uncertain terms as a compensation for the financial burden caused directly to the State of Israel as such (“…global recompense for the cost of integration…”).

Prof. Franz Boehm of Frankfurt – who had conducted, in his capacity as representative of the German Federal Republic, the negotiations with the State of Israel preceding the Agreement of 10 September 1952 – is certainly an unbiased witness for the truth of this legal construction.

Boehm states “that the State (that is to say, Israel) does not represent the Jewish People, but only its own citizens, that therefore a recompense we shall grant this State will not benefit directly the Jewish People as a whole, but precisely only this State itself.”[116]

Boehm states further on in this context:

“As to the State of Israel in particular, the Chancellor of the Federation has already given expression to his readiness to start negotiations as to the compensation for damage caused to the State of Israel by the absorption of so many homeless Jewish refugees by that State and, before its establishment, by the Government of the Mandatory territory of Palestine.”[117]

“…The mandatory territory of Palestine and later on the State of Israel have received, since the beginning of the Third Reich up to the end of the year 1951, approximately 500,000 refugees who had become homeless by reason of the National-Socialist persecution of Jews. The reception and the absorption of these masses of refugees has caused – and still causes – the State of Israel considerable expenses. The Israeli Government has claimed the amount of these expenses as compensation for damages caused to the State.”[118]

“The German payment to Israel has therefore no connection with individual reparation. The Israeli Government has never claimed to represent the interests of injured Jewish individuals, even not the interests of its own citizens. Israel claims compensation for damage caused to the State itself by the absorption of refugees. It is the claim of a State and nothing else.”[119]

Nothing needs to be added to these unequivocal statements of Boehm’s.

To sum up, the conclusion has to be that Israel is not entitled to claim jurisdiction over the Accused Eichmann on the strength of the passive personality principle.

4. The protective principle

According to this principle, the protection of legal interests in criminal law extends to all interests within
the territory of the state concerned, irrespective of the fact by whom and where these interests have been injuriously affected. (Closely examined, it appears that the passive personality principle which has just been discussed, is only a sub-species of the protective principle).

Israel cannot rely on this principle either in order to justify its claim for criminal jurisdiction over Eichmann;
for in view of the establishment of the State of Israel which took place only in 1948, “interests within its
territory” could not have been injuriously affected by offences of the Accused completed in 1945.

5. The universality principle

(a) The last principle which might be called upon in Israel – subject, of course, to the objection based upon the Acts-of-State-Doctrine – in order to justify its claim for criminal jurisdiction over the Accused, is therefore only the universality principle.

According to that principle, a claim for jurisdiction of the State which has seized the offender will come into existence, irrespective of the place where the offence has been committed, the nationality of the offender and the subject of his offence.[120]

However, this principle applies subject to considerable reservations. In the first place, its very validity is contested.[121]

However, insofar as the principle is recognized, it is unanimously agreed that the application is limited to
specific offences. Only such crimes as are equally dangerous to all States having regard to the mode of their perpetration or the international character of their commission justify a claim for jurisdiction on the strength of the universality principle.[122].

The universality principle without restrictions (that is to say, irrespective of the fact whether the offence is punishable according to the law of the place of its commission, and disregarding the precedence of a claim for extradition) is applied by municipal laws only in respect of specific offences; that is to say, not generally. The cases where such application is recognized – counterfeiting, slave trade, white-slave trade, trade of children, trade of dangerous drugs or obscene publications, causing damage to submarine cables – are based upon international agreements[123] or, at least, upon established practice.[124] Recognition of the universality principle limited as aforesaid to certain specific offences has been voiced, i.e., by Oppenheim-Lauterpacht,[125] Travers,[126] Janaczek,[127] Kelsen[128] and Woetzel.[129]

(b) However recently a certain tendency can be ascertained to widen the universality principle and to extend it, beyond the scope of the aforesaid legally protected interests, also to war-crimes and crimes against humanity.[130]

These tendencies have been encouraged by the four Geneva Conventions of 12 August 1949. By these Conventions, the States, parties to the Conventions, undertake to make punishable serious violations of the agreements and to persecute them regardless of the place of their commission and of the nationality of the offender.[131]

Extradition to one of the other parties to the conventions, it is true, is permitted, but there is no obligation to extradite. At any rate, in respect of the scope of application of the Geneva Convention, the universality principle has thereby been recognized. On the one hand, therefore, the Geneva Conventions are evidence of the tendency to widen the scope of the universality principle, but on the other hand, they are also evidence of the fact that before the signature of the conventions, the universality principle had not applied to the subject matter dealt with therein; otherwise the signature of the conventions would not have been necessary.[132]

(c) The London Charter of the International Military Tribunal, dated 8 August 1945. and the Judgment of the
International Military Tribunal, dated 30 August 1946

The London Charter and the Judgment of the International Military Tribunal in the trial of Nuremberg deserve a thorough discussion in connection with the Eichmann case for the following reasons:

Art. 6 of the London Charter provided for punishment of war crimes and crimes against humanity, without any restriction as to the time and place of the commission of the offence.

If the London Charter is regarded as a codification of customary international law then in force or as a genuine source of international law, one has to expect the argument that the validity of a universality principle, the application of which is not restricted to certain specified offences, could be based upon these sources of law so that Israel could probably claim jurisdiction over Eichmann.

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