The Trial of Adolf Eichmann

National-Socialist legal writers also put up a most vigorous fight against the formal observance by the State of the rule of law in favour of a “substantive” rule of law.[67] In this context, only some typical examples – taken from a number of concurrent statements which defy any complete survey – can be referred to here as evidence for this trend. Thus, for instance, the following statement of Krauss, a disciple of Carl Schmitt, ought to be mentioned:[68]

“A State based upon the rule of law does not denote today – and neither did it in the nineteenth century -
any genuine reality, but only the absence of substantial value in the organization of a State. The words, a State observing no `rule of law’ (Rechtsstaat) belong to a category of bad combinations of words, and they have neither a substantial cognitive value, nor any fighting value at all…A State based upon the rule of law is a State of political weakness; it is part of the system of the Weimar Constitution, of a period when Germany had disarmed in every respect, morally as well as intellectually…If we retain the idea of the rule of law, we shall saddle the Fuehrer’s State with relativism. For eventually `law’ will then be defined as the restriction of leadership by its own volition, the observation of statutory law, as legality of substantive creativity…”

He continues that the idea of the liberal State based on the rule of law is an outdated expression which does not correspond to anything in the “reality of present times” and that the word Rechtsstaat is used in its old-fashioned meaning.

“When the State based on the rule of law is contrasted with the actual necessity of the State – and thereby with the State itself – and, based upon this point of departure, the question whether concentration camps are in conformity with the idea of the rule of law, is answered in the negative.”[69]

In a postscript to Krauss’s work, Carl Schmitt[70] states that “the victory of the ideas `citizen’ and `Rechtsstaat‘ coincides with the emancipation of the Jews” – a statement intended to bring the idea of the rule of law into disrepute.

Lange[71], too, considers the fact that the liberal idea of the rule of law has been promoted to a considerable extent by Jewish scholars as a grave defect. This author uses, for instance, the following expression intended to bring into disrepute a State based on the rule of law within its liberal meaning (which is already to be discredited by its designation as “statutory State”):

“Liberalism used the weapons of normative concepts and pseudo-values, coined and directed by that universal power, the press, which was controlled by a race without a land (p.5).

“National-Socialism has replaced the liberalistic worthless technique of life by clear values of life and led to victory ideas of duty and community which were pushed more and more into the background. Values like God and faith, people, race and homeland, honour and family rise high above the individual…(p.20).

“…the middle-class legalistic positivism which does violence to any decision of the Fuehrer by applying
thereto the illusion of considerations peculiar to its way of decision-making and by approving the right of judicial review…(p.35).

“…it results from this very idea that its (the new State’s) rights precisely are not limited by this
barrier and do not come to an end there. Therefore, the concentration camp precisely constitutes, for the idea of community, a form of safeguarding justice just as do protective custody, arrest pending investigation, penal custody…(p.30).

“The empty statutory State which in the last resort is a State without justice equipped with the Stateless
statutes, has been overcome by the National-Socialist State of justice. Thus the way from Liberalism to
National-Socialism is tantamount to the way from statute to justice, from nation to people,from imperialism to peace,from sword to spade” (p.40).

Roland Freisler is to be called, probably, the most determined and the most aggressive adversary of the
principle nulla poena sine lege. Time and again, Freisler[72] attacked this principle as being incompatible with National_Socialist ideas of justice. The formulation of the question of the heading of one of the relevant articles, “Protection of the People or of the Offender?,” is already typical of his views. Freisler was fully aware of the relation between the idea of the State based on the rule of law and the prohibition of retrospective application; therefore, he renews time and again the attacks of the liberal idea of the rule of law as such. A number of statements constituting a typical example of these attacks which were made in an article in the Deutsche Justiz (1937, p.151 ff) ought to be quoted here:

Freisler begins his comments by attacks on the liberal idea of the rule of law.

“…that this `State based upon the rule of law’ had become incapable of answering the question of the
relationship between the individual and the State, the basic question of the interaction between society and its members, that life within the State had drifted towards anarchy in the course of individualistic
atomization which had become more and more powerful.

“…Obviously this rule of law could not be the goal of the political structure aimed at by National-Socialism” as it (scilicet: NationalSocialism) does not permit formal considerations to become the straight-jacket of life…as it looks again on the relationship between a member of the people and the people itself from a natural and biological perspective and not from a legalistic one, artificial and remote from life.

Therefore, it cannot look upon the separation of powers as the essence of a wise organization of the State. On the contrary…It cannot provide for the control of leadership by its followers.

“Moreover, it cannot accept the consequences reached by the middle-class liberal State, based upon the rule of law, as for instance the guarantee of freedom for the dishonest contained in the sentence nullum crimen sine lege.”[73]

For the healthy approach of ordinary people precisely requires punishment where the deed is morally
reprehensible.”[74]

The comments of the Minister of Justice Guertner follow exactly the same trend:

“Now in this respect National-Socialist ideas of justice and State voice their criticism. They firmly demand that every behaviour which ought to be punished shall also be met with due retribution, that nobody shall succeed to escape through the mesh of the law and that, rather, the perpetrator of any deed which ought to be punished shall be awarded the punishment he deserves, regardless of the imperfection of the law.

Therefore, the sentence nulla poena sine lege will be countered by the sentence “nullum crimen sine poena. National-Socialism establishes thereby a new sublime goal to criminal law: the realization of genuine justice.”[75]

Freisler is also the author of the following sentence:

“The protection afforded by criminal law from wrongful deeds which ought to be punished, must not be left to limp behind the ingenious inventiveness of the enemies of the people; they rather have to know that by their acts they expose themselves to criminal sanctions, even if their wrongful deeds are clothed in forms which are not yet covered by statutory provisions.”[76]

One would think that the legal approach to the principle nulla poena sine lege advocated by National Socialism not only in its writings, but also carried out by its adherents in practice, had not only caused political and moral condemnation in principle but had also given rise to that conviction that as a matter of method, this road is impassable. Therefore it is not only surprising, but startling to find in the first decision in criminal matters of the (German) Supreme Court for the British Zone, dated 4 May 1948, the following sentence:

“The fact that Law No. 10 of the Control Council to a certain extent (this refers to crimes against humanity) penalizes offences which at the time of their commission had not yet been made punishable, does not constitute an obstacle to its application…

Such a provision is not unjust, and therefore a German judge does not need to feel a burden upon his conscience in applying this provision. Punishment with retrospective application is unjust if the offence at the time of the commission not only had not violated a statutory provision of criminal law, but if, in addition, it had not violated the code of morality.

This does not apply in the case of crimes against humanity. In the opinion of all men feeling themselves bound by the rules of morality, a grave misdeed has been committed, and it would have been the duty of a State respecting the rule of law to make provision for its punishment.

It is in line with the principles of justice to provide for a remedy of this defect in the execution of this duty by making a provision for punishment with retrospective effect. Moreover, this does not constitute a violation of the principle of a certainty of the law, but the restoration of its basis and prerequisites. The protection of wrongdoing is not the purpose of the certainty of the law.”[77]

In its decision of 18 October, the Supreme Court added to these principles the following sentence:

“The offense penalized by Law No.10 of the Control Council as a crime against humanity had already at the time of its commission been an offence which ought to be punished in the opinion of all men feeling
themselves bound to the rules of morality.”[78]

Therefore, the power to punish is derived again from the conviction that the perpetrator ought to be punished. The coincidence between the terminology and the methods used by the Supreme Court and, for instance, by Guertner makes an ominous impression. It is hard to believe that Israel, by following the same line of thought, will enter into such a dubious area, as the German Supreme Court had done.

E: Nulla poena sine lege according to Israeli law

It has been shown that there are certain doubts whether Israel is bound by international law to respect the
prohibition of retrospective application.

On the other hand,it must be stated that the municipal law of Israel provides for the prohibition of retrospective application and that an Israeli court is not empowered to convict the Accused Eichmann under the retrospective Nazi and Nazi Collaborators (Punishment) Law.

It is true that the prohibition of retrospective application is not entrenched in any Israeli constitutional law.
However, it has to be emphasized that art. 13 sec. 7 of the Draft Constitution expressly provides for the prohibition of retrospective application. Certainly, the reason why the Constitution has not yet been adopted is not the fact that in the question of criminal statutes with retrospective effect differences of opinion have arisen which cannot be settled. The prohibition as framed by the Draft Constitution can therefore be considered as the expression of a principle being already at present part and parcel of Israeli law.

This proposition is confirmed by the fact that Israeli criminal law has developed following the model of English criminal law – a law, which at least inasmuch as critical statutory law is concerned, recognizes the prohibition of retrospective application.

Conclusion of the Part 2.

The punishment of the Accused Eichmann under the provisions of the Nazis and Nazi Collaborators (Punishment) Law would be contrary to the prohibition of criminal statutes with retrospective effect and is therefore inadmissible.

Previous | Notes

Attorney General: May it please the Court. I am not afraid of an inundation since the Court will have ample material after we conclude our case, to be able to judge what is true and what is false and will itself be able to sort the wheat from the chaff in the light of other evidence which I hope will be credible. In any case we are dealing with a law containing special provisions concerning the rules of evidence.

And I visualize that one of the difficulties in this case is the material concerning which a decision must be taken from the point of view of the rules of evidence. And, therefore, I would not be so concerned. But I am ready to take this one step further. And if the argument of Defence Counsel is that these people are not willing to volunteer of their own good will to give him affidavits and I cannot force them to give affidavits – however if this case were in Germany then I would, with the authority of the Court, summon them and they would be obliged to appear and give evidence, whereas I cannot force them to make affidavits before a notary or before a consul.

If this is the argument, then I declare here that I would be ready, in an appropriate case and after being convinced that it is desirable to do so, to make use for this purpose of the arrangements for legal assistance existing between the State of Israel and the Federal Republic, in order that persons who have something to say should appear before a Judge in Germany. There they will be examined before representatives of both sides – there there would be cross-examination; there their statements would be examined from the point of view of truthfulness.

And I would ask this Court – or more correctly I would associate myself with the application of Defence Counsel, since he is interested in this – to submit this material as evidence in this case. I think in so doing I have gone to the limit of my ability to promise Defence Counsel that all relevant evidence, if he has such, can be brought before this Court. Despite this I have not, to this day, received from Defence Counsel any notification whatsoever concerning the bringing of a particular witness who fears for his personal safetly or his indictment in the State of Israel. And now, with the Court’s permission, in the time remaining for me, I shall touch upon the legal problems arising out of the question of the detention and transfer of a person to another jurisdiction.

My argument is that where a person is legally Accused of committing a crime and he is legally kept under arrest at the time when he is brought before the Court and stands his trial, the Court should not examine the circumstances which led to the fact that the Accused is brought before the Court. In other words – the circumstances of the Accused’s detention, his seizure and his transfer are not relevant for competence and they contain nothing which can affect this competence, and since they are not relevant, they should not be considered and evidence concerning them should not be heard.

This rule has been written into the statue books of countries observing the rule of law since the judgment in Ex parte Scott, reported in Vol. 109 of the “English Reports,” on page 166. And these were the facts: An indictment for perjury was preferred in England against a woman named Susanna Scott. A warrant for arrest was issued against her. With the Court’s permission I shall read the remaining facts from the judgment itself appearing in the Report:

“It appeared by the affidavits that a bill of indictment for perjury had been found against her, and on the 11 February, Lord Tenterden C.J. granted a warrant for her apprehension, in order that she might appear and plead to the indictment, and C. Ruthven, a police officer, to whom the warrant was specially directed, apprehended Scott in Brussels; she applied to the English Ambassador there for assistance but he refused to interfere, and Ruthven conveyed her to Ostend, and thence to England, and on the 9th of April, she was brought before Lord Tenterden, and by him committed to the K.B. Prison.

A bill was found against the prisoner for a misdemeanour; there is no doubt that she is now rightfully in custody for want of bail. And when a party is liable to be detained on a criminal charge, the Court will not inquire into the manner in which the caption was effected.”

On the following page Lord Tenterden says:

“The question, therefore, is this, whether if a person is charged with a crime is found in this country, it is the duty of the Court to take care that such a party shall be amenable to justice, or whether we are to consider the circumstances under which she was brought here. I thought and still continue to think, that we cannot inquire into them.

If the act complained of were done against the law of a foreign country that country might have vindicated its own law. If it gave her a right of action, she may sue upon it.”

The same problem was considered in England 120 years later.

And I read from the judgment in R.v.O/C Depot Battalion P.A.S.C. Colchester. Ex parte Elliott (1949) 1, “All England Reports,” page 373. This was a case of a British deserter who was arrested by British officers in Antwerp two years after his desertion and who was brought to England. He obtained a decree nisi on the basis of the argument that he was held under arrest illegally owing to the fact that he was brought from Belgium against his will and under coercion. I quote from the judgment of Lord Goddard on page 376.

“On the applicant’s part two points have been taken. It is said that his arrest was illegal because (i) the British authorities had no authority to arrest him in Belgium and he was arrested contrary to Belgian Law, and (ii) his arrest was not in compliance with the provisions of s. 154 of the Army Act.

The point with regard to the arrest in Belgium is entirely false. If a person is arrested abroad and he is brought before a court in this country charged with an offence which that court has jurisdiction to hear, it is no answer for him to say, he being then in lawful custody in this country: ‘I was arrested contrary to the laws of the State of A or the State of B where I was actually arrested.’ He is in custody before the court which has jurisdiction to try him.

What is it suggested that the court can do? The court cannot dismiss the charge at once without its being heard. He is charged with an offense against English law, the law applicable to the case. If he has been arrested in a foreign country and detained improperly from the time that he was first arrested until the time he lands in this country, he may have a remedy against the person who arrested and detained him, but that does not entitle him to be discharged, though it may influence the court if they think there was something irregular or improper in the arrest. Once he is before the court, it can hold him to bail until his trial and conviction.”

That is to say, the question of the kidnapping is likely to have an effect, possibly on release on bail. After quoting Ex parte Scott with approval, the Court analyses the Scottish decision and states the following at the end of page 377:

“That, again, is a perfectly clear and unambiguous statement of the law administered in Scotland. It shows that the law of both countries is exactly the same on this point and that we have no power to go into the question, once a prisoner is in lawful custody in this country, of the circumstances in which he may have been brought here. The circumstances in which the applicant may bave been arrested in Belgium are no concern of this court.”

The Supreme Court of Palestine in the days of the Mandate followed the English and American practice and laid down the same principle in Criminal Appeal 14/42, Afuna vs Attorney General: (“The Law Reports of Palestine” Vol. 9/1942), page 63). Here it was established that a man fled to Syria after being suspected of committing murder. He was arrested in Damascus by a British sergeant and brought to this country for trial. He argued that his arrest had been illegal and accordingly he should be released. The Supreme Court did not accept this argument. I read from page 66:

“Counsel on neither side was able to refer us to any direct authority covering a case, such as the present,
where a person has been irregularly apprehended not as a result of extradition proceeding at all.”

I quote the American report from the judgment of the Mandatory Court:

“In our opinion, the law is correctly stated in volume 4 of Moore’s Digest of International Law, at page 311.

1) The authority cited is an American (State) case which, of course, is not binding on this Court. Nevertheless we adopt the language used, which is as follows -’where a fugitive is brought back by kidnapping, or by other irregular means, and not under an extradition treaty, he cannot, although an extradition treaty exists between the two countries, set up in answer to the indictment the unlawful manner in which he was brought within the jurisdiction of the court. It belongs exclusively to the government from whose territory he was wrongfully taken to complain of the violation of its rights.’”

And the Mandatory court goes on to say:

“Accepting that view of the law we think that there is no substance in the extradition point.”

In the United States of America there are special constitutional guarantees for protecting the rights of the
individual. As it is a federation of states, it is very sensitive to the problem of the competence of the central Government and of the competence of the states comprising the United States of America as between themselves and of the relations between the United States and foreign countries. Furthermore: American courts have laid down that public international law is part of the internal law of the United States, and it applies to the relations of the United States with foreign countries and to the relation of the
states with one another. The Court will see this practice in “American Jurisprudence” vol 30, pages 440-441.

“Unless there is some treaty or statute to the contrary, the law of nations is to be treated as part
of the law of the land.

The courts of all nations judicially notice this law, and it must be ascertained and administered by the courts of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination.

Occasionally the statutes conferring jurisdiction to hear and determine particular controversies require the courts to render their decisions in accordance with the rules of international law.

It has been held that an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains. When the United States declared their independence, they were bound to receive the law of nations in its modern state of purity and refinement.

International law forms a part of the law of the several states. It is a part of the law of every state
which is enforced by its courts without any constitutional or statutory act or incorporation by reference, and while a court may be without jurisdiction to enforce international law in a given case by reason of some controlling statute, nevertheless, relevant provisions of the law of nations are legally paramount whenever international rights and duties are involved before the court having jurisdiction to enforce them.”

And in that country, where such is its relationship to international law, a general practice has been established the contents of which I shall read from Corpus Juris Secundum and thereafter I shall examine it for details.

Presiding Judge: Perhaps you would quote the extract from Corpus Juris Secundum and with this we shall conclude the morning session.

Attorney General: I quote from Criminal Law, vol 22, page 236, paragraph 144 in which the practice was defined in the following terms:

“144. ARREST AND CUSTODY

Custody of the Accused: by the court, or his presence therein on a proper charge, is essential to the
jurisdiction of the court over him. The manner in which the Accused is brought before the court, however, is ordinarily immaterial in so far as jurisdiction over him is concerned.”

And on page 242, in paragraph 146:

“In accord with the general rule stated in paragraph 144 supra, to the effect that a court will not inquire
into the manner in which the Accused is brought before it, the fact that Accused has been illegally arrested, or that he has by trickery, force, or without legal authority, or by any illegal means, been brought within the territorial jurisdiction of a state or federal court, does not oust the jurisdiction of that court.

Even if in any case there should be a conflict of jurisdiction between two courts, accused, who is before one court for trial, cannot take advantage of the fact that his presence has been illegally or improperly
obtained.”

Presiding Judge: Is this a convenient point, Mr. Hausner where we may stop?

Attorney General: As you please, your Honour.

Presiding Judge: We shall accordingly stop now. The afternoon session will begin at 16.30 hours, exceptionally, in order to enable us to participate in the funeral of the State Attorney, whose passing we deeply mourn. The next session will be at 16.30 today.

Previous | Next

Session No. 1: Tuesday, 25 Nissan 5721 (11 April 1961)

Clerk of the Court: Criminal Case No 40/61. The Attorney General: versus Adolf, the son of Adolf Karl Eichmann.

On behalf of the prosecution, Mr. Gideon Hausner, Attorney General, Dr. Ya’akov Robinson, Assistant to the Attorney General, Mr. Gabriel Bach, Mr. Ya’akov Bar-Or, Mr. Zvi Terlo- Assistant State Attorneys; the Accused: in person and his Counsel Dr. Robert Servatius.

Presiding Judge: Adolf Eichmann, are you Adolf Eichmann, the son of Adolf Karl Eichmann?

Accused: [standing] Yes.

Presiding Judge: Are you represented in this trial by Dr. Robert Servatius and by Mr. Dieter Wechtenbruch?

Accused: Yes.

Presiding Judge: You are Accused: before this Court in terms of an indictment containing 15 counts. I shall read the indictment to you and this indictment will be translated for you into German. This is the indictment against you on behalf of the Attorney General.

FIRST COUNT

Nature of Offence: Crime against the Jewish People, an offense against Section 1(a)(1) of the Nazis and Nazi Collaborators (Punishment) Law, 5710-1950 and Section 23 of the Criminal Law Ordinance, 1936.

Particulars of the Offense: (a) The Accused, during the period from 1939 to 1945, together with others, caused the deaths of millions of Jews as the persons who were responsible for the implementation of the plan of the Nazis for the physical extermination of the Jews, a plan known by its title “The Final Solution of the Jewish Question.”

(b) Immediately after the outbreak of the Second World War the Accused: was appointed to be the head of a department of the Gestapo in Berlin the functions of which were to locate, deport and exterminate the Jews of Germany and of the other countries of the Axis as well as in the areas which the Axis States had occupied. The Department bore, in succession, these identification numbers: IVD4, IVB4, IVA4

(c) Instructions for carrying out the plan of extermination in Germany were given directly by the Accused: to local headquarters of the Gestapo, whilst in Berlin, Vienna and Prague the Accused’s instructions were given to the central offices (Zentralstelle fuer Juedische Auswanderung) for the administration of which he was personally responsible until their dissolution, shortly before the end of the Second World War.

(d) In the areas of German occupation the Accused: operated through the offices of the commanding officers of the Security Police and the SD and the persons specifically responsible for Jewish affairs who were appointed from amongst the personnel of the Accused’s Department in the Gestapo, and who were subject to his directives.

(e) In the countries of the Axis and the occupied areas, the Accused: made use of the offices of Germany’s foreign representatives in each individual place, and he did so in constant liaison with the special departments of the German Foreign Ministry in Berlin which dealt with matters concerning Jews. In these representative offices advisers were appointed subject to his directives.

(f) The Accused: together with others perpetrated the extermination of Jews, inter alia, by means of putting them to death in concentration camps, the purpose of which was mass murder, of which the more important ones were:

Walled Entrance to the gas chamber in the main camp of Auschwitz.

1. Auschwitz Millions of Jews were exterminated here, commencing from the year 1941 and until the end of January 1945, in gas chambers, in incinerators, by shooting and by hanging. The Accused: directed the commanders of this camp to use the gas Zyklon B and during the years 1942 and 1944 actually took steps to ensure the supply of a quantity of gas for the purpose of exterminating Jews.

Chelmno operated three gas vans using carbon monoxide. The death toll is estimated at 150-300,000.

2. Chelmno This extermination camp was operated from the beginning of November 1941 until the beginning of 1945, and in it, inter alia, poisonous gases were used.

Group portrait of ethnic German guards at the
Belzec concentration camp, one of whom plays a mandolin.
Photo: USHMM

3. Belzec This extermination camp was operated from the month of March 1942 until October 1943, and in it poisonous gases were used, among other means of extermination.

An aerial photo of the Sobibor area
showing the camp and its immediate surroundings.
Photo: USHMM

4. Sobibor This extermination camp was operated from the month of March 1942 until October 1943, and in it were installed, inter alia, five rooms built of stone into which poisonous gases were introduced.

5. Treblinka This extermination camp was operated on 23 July 1942 and until the month of November 1943. Here too, inter alia, poisonous gases were used.

6. Majdanek This extermination camp was operated from the year 1941 until the month of July 1944, and in it, inter alia, poisonous gases were used.

g) Immediately following the invasion of the German Army into Poland, in September 1939, the Accused: carried out acts of expulsion, the uprooting of populations, and extermination which were coordinated with massacre units mobilized from the ranks of the German Security Police and the SS and called by the name “Operations Units” (Einsatzgruppen). Such units operated also after the invasion of the Soviet Union in the year 1941, and advanced in the wake of the German Army.

They received their orders directly from the “Reich Security Main Office” (RSHA) and operated in collaboration with the Accused: in the extermination of Jews, each within the area of its authority. The Units were made to act especially on the Jewish Sabbath and Feast Days – dates which were selected for the massacre of Jews. These Units exterminated hundreds of thousands of Jews in the German area of occupation in Poland. h. Before the invasion of the German Army into the regions of the Soviet Union and the Baltic countries, Lithuania, Latvia and Estonia, which were annexed to her, four Operation Units were organized by the Reich Security Main Office (RSHA) working in collaboration with the Accused: in the extermination of the Jews in the aforementioned regions in that part of Poland which had been annexed to the Soviet Union after September 1939. The acts of these Units included, inter alia, the following operations: -

(h) Before the invation of the German Army into the regions of the Soviet Union and the Baltic countries, Lithuania, Latvia and Estonia, which were annexed to her, four Operation Units were organized by the Head Office for Reich Security (RSHA) working in collaboration with the Accused in the extermination of the Jews in the aforementioned regions in that part of Poland which had been annexed to the Soviet Union after September 1939. The acts of these units included, inter alia, the following operations:

(1) Operation Unit “A” put to death in the course of the first four months of the German Army’s invasion into the aforementioned regions:

Lithuania: over 80,000 Jews;
Latvia: over 30,000 Jews;
Estonia: about 470 Jews;
Belorussia: over 7,600 Jews;
Russia: about 2,000 Jews;
The province of Tilsit: about 5,500 Jews.
A total of over 135,000 Jews.

(2)Operation Unit “B” up to 14 November 1941 exterminated upwards of 45,000 Jews in Belorussia and other zones.

(3)Operation Unit “C” up to 3 November 1941 exterminated in the Ukraine more than 75,000 Jews – and amongst them about 33,000 Jews of Kiev.

(4)Operation Unit “D” exterminated about 54,000 Jews up to 12 December 1941.

(5)During the period August to November 1942, these Operation Units exterminated approximately 363,000 Jews.

These Operation Units dealt on this scale and with this objective in the aforementioned areas in the extermination of the Jews, beginning from June 1941, and until the year 1944, and exterminated hundreds of thousands of Jews in addition to those previously specified.

i) At the end of the year 1941, the Accused: gave orders to deport thousands of Jews from Germany, Austria and Czechoslovakia (the Protectorate) to ghettos in Riga, Kovno and Minsk. These Jews were exterminated – and amongst others- (1) A transport of these Jews from the Reich (Germany) was murdered on 30 November 1941 together with about 4,000 Jews of Riga.

(2) About 3,500 Jews from Germany who were sent to Minsk as mentioned, upon the orders of the Accused, were liquidated by an Operation Unit in Belorussia, together with 55,000 Jews from amongst the residents of the area.

j) The Accused, together with others, caused the deaths of thousands of Jews between the years 1940-1945 in forced labour camps which were administered under a concentration camp regime and where Jews were enslaved, tortured and starved to death in Germany and the countries it conquered.

k) The Accused, together with others, caused the deaths of additional hundreds of thousands of Jews between the years 1939-1945 by means of mass deportations and the assembly of the Jews in ghettos and other places of concentration, which were implemented under cruel and inhuman conditions in Germany and the other countries of the Axis, and also in the occupied regions, namely – in the following countries:

Germany
Austria
Italy
Bulgaria
Belgium
The Soviet Union and the Baltic countries Lithuania,
Latvia and Estonia which were annexed by her, and that
part of Poland which had been annexed to the Soviet
Union after September 1939
Denmark
Holland
Hungary
Yugoslavia
Greece
Luxembourg
Monaco
Norway
Poland
Czechoslovakia
France
and Rumania.

l) The Accused: caused the deaths of approximately half a million of the Jews of Hungary by means of their mass deportation to the extermination camp at Auschwitz and other places during the period between 19 March 1944 and 24 December 1944 when he was serving as Head of the “Eichmann Special Commando Unit” (Sondereinsatz-Kommando Eichmann) in Budapest.

m) The Accused: carried out all the acts detailed in this count with the intention of destroying the Jewish People.

SECOND COUNT

Nature of Offence: a) Crime against the Jewish People, an offence against Section 1(a)(1) of the Nazis and Nazi Collaborators (Punishment) Law, 5710-1950 and Section 23 of the Criminal Law Ordinance, 1936.

Particulars of the Offence: the Accused, together with others, subjected many millions of Jews to living conditions which were likely to bring about their physical destruction, during the period 1939 to 1945 and to this end operated in Germany and the other countries of the Axis, in the areas of their occupation and also in areas which were in practice subject to their authority. In the said period and by virtue of his functions mentioned in the First Count, and in order to implement “The Final Solution of the Jewish Problem” he acted in the following ways:

1. Enslaving them in forced labour camps
2. Placing and keeping them in ghettos
3. Driving them into transit camps and other places of concentration
4. Their deportation and their mass transportation under inhuman conditions

And all of this was done by the Accused: for those same objectives, by the same methods of operation and in the same places as described in the First Count.

b) The Accused: carried out these acts with the intention of destroying the Jewish People.

THIRD COUNT

Nature of the Offence: Crime against the Jewish People, an offence against section 1(a)(1) of the Nazis and Nazi Collaborators (Punishment) Law 5710-1950, and section 23 of the Criminal Law Ordinance, 1936.

Particulars of the Offence: a) During the period of Nazi rule, the Accused: fulfilled functions in the Security Service of the SS (SD) for dealing with Jews, according to the plan of the Nazi Party (NSDAP). These functions were amalgamated after the outbreak of the Second World War with the functions of the Department in the Gestapo described in the First Count and which was headed by the Accused.

b) Throughout that entire period the Accused, together with others, caused grave harm to millions of Jews, physically and mentally, in Germany and in the other countries of the Axis, in the occupied areas them and also in the areas which in practice were subject to their authority in those countries specified in the First Count.

c) The Accused, together with others, caused this grave harm by means of enslavement, starvation, expulsion and persecution, confinement to ghettos, to transit camps and to concentration camps – all this under conditions intended to humiliate the Jews, to deny their rights as human beings, to oppress and torment them by inhuman suffering and torture.

d) The Accused, together with others, carried out these acts by adopting methods, of which the most important were:

(1) Sudden mass arrests of innocent Jews, without judicial process, and only because of their being Jews, and their torture in concentration camps, such as those at Dachau and Buchenwald;

(2) The organization of mass persecution by means of arrests, cruel beatings, the infliction of serious injury,
and torture in concentration camps, of approximately 2,000 Jews of Germany and Austria on the night between the 9th and 10th November 1938;

(3) Organizing operations of social and economic boycott of the Jews and stigmatizing them as a subhuman racial group;

(4) Putting into practice the laws known as “The Nuremberg Laws” for the purpose of depriving millions of Jews in all those countries specified in the First Count of their human rights.

e) The Accused: carried out these acts with the intention of destroying the Jewish People.

FOURTH COUNT

Nature of Offense: Crime against the Jewish People, an offence against Section 1(a)(1) of the Nazis and Nazi Collaborators (Punishment) Law, 5710-1950 and Section 23 of the Criminal Law Ordinance, 1936.

Particulars of the Offense: a) Commencing in the year 1942, the Accused, together with others, adopted measures calculated to prevent births amongst the Jews of Germany, and the occupied countries.

b) The adoption of these measures by the Accused: in his official capacity as Head of the Department for Jewish Affairs in the Gestapo in Berlin was also intended to advance the “Final Solution of the Jewish Question.”

c) Amongst these measures were: (1) Instructions by the Accused: to Dr. Eppstein, head of the Council of Elders in the Concentration Camp at Terezin (Theresienstadt) in the years 1943-44, concerning the ban on births in the camp, and concerning the termination of pregnancies by means of artificial abortion in every case and in all stages of pregnancy;

(2) An order of the German police in the Baltic countries in the year 1942 against Jewish women in the Kovno Ghetto forbidding them to give birth and compelling them to undergo operations for abortion in every case of pregnancy;

(3) On 27 October 1942 in the offices of the Accused: (RSHA) IVB4 in Berlin, the Accused, together with others, prescribed measures for the sterilization of persons of mixed descent of the first degree of Jews in Germany and in the occupied territories according to the following principles:

(aa) The sterilization would be carried out on the person of the individual of mixed descent, Jew or Jewess, upon their agreeing to this in return for the favour of receiving permission to remain within the borders under the rule of the German Reich;

(bb) The individual of mixed descent would be entitled to choose between sterilization and deportation to the extermination areas in the East;

(cc) The authorities were to suggest to individuals of mixed descent to choose deportation;

(dd) Those choosing deportation would be separated according to their sex in order to prevent any further births;

(ee) The sterilization would be performed privately and secretly.

d) In laying down these measures the Accused: intended to destroy the Jewish People.

FIFTH COUNT

Nature of the Offense: Crime against humanity, an offense against Section 1(a)(2) of the Nazis and Nazi Collaborators (Punishment) Law 5710-1950, and Section 23 of the Criminal Law Ordinance, 1936.

Particulars of the Offense: The Accused: committed acts, during the period between 1939 and 1945, in Germany and the other countries of the Axis, in the occupied territories and also in the areas which were in practice subject to their authority, which are to be defined as crimes against humanity, when, together with others, he caused the murder, extermination, enslavement, starvation and expulsion of the Jewish civilian population in those countries and areas. The Accused committed these acts in the course of fulfilling his functions as specified in the First Count.

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4. The application of the “Acts-of-State-Doctrine” to the Eichmann case.

(a) The crimes imputed to Eichmann were committed by the Accused without exception (except the membership in an enemy organization) as “Acts of State.” This cannot be expounded here in detail, but will have to be explained in detail during the trial. In this context it is only to be emphasized that the “Notice of Charge”, as well as the Information itself again and again state expressly Eichmann’s official function as being the basis of the offence imputed to him. Be it sufficient to quote, as an example, the corresponding part of the “Notice of Charge” in the first count:

“The Accused committed these acts whilst functioning as head of the Department for Jewish Affairs of the Gestapo in Berlin, and, in 1944, also as head of the Eichmann Special Operations Unit Sondereinsatzkommando Eichmann) in Budapest.”

(b) If the wording of the A.o.S.D. adopted by Kelsen, Oppenheim, Pal, Jahrreiss and Jescheck will serve as point of departure for the examination of the question, no Israeli tribunal has jurisdiction over the Accused. The exceptions from the A.o.S.D. considered as permitted by Kelsen (espionage and treason in times of war) do not apply in Eichmann’s case.

But even if the “restrictive theory of immunity” as advanced by Lauterpacht, Morgan, Schwarzenberger and
Verdross is followed, the State of Israel is not entitled to claim criminal jurisdiction over the Accused Eichmann. The exception permitted according to this doctrine (which goes further than the deviations mentioned above) does not apply in Eichmann’s case: for a state of war does not exist – and has never existed – between the State of Israel and Germany, and the State of Israel keeps him in its custody not by virtue of a capture made in the course of military operations – and therefore as a prisoner of war – but as a result of his abduction from the territory of a foreign state.

It must therefore be emphasized, as a result of this chapter, that already the “Acts of State Doctrine” excludes the existence of any claim for criminal jurisdiction of the State of Israel over the Accused Eichmann. If nevertheless he would be tried by an Israeli tribunal, this would amount to a violation of international law.

III Territorial principle, active and passive personality principle, protective principle, universality principle -
basis and restriction of Israeli jurisdiction.

Although it appears that already according to the A.o.S.D. Eichmann’s trial in Israel is not permitted by international law, it will be explained hereinafter that in addition hereto there are further legal reasons why an Israeli tribunal has no jurisdiction over the Accused.

There are only five principles of international law which would serve to support Israel’s claim to try and punish the Accused Eichmann: the territorial principle, the active and passive personality principle, the protective principle and the universality principle.

1. The territorial principle

The meaning of the territorial principle is, in the first place, that a State cannot perform acts of jurisdiction but within the area of its own territory. However, it means furthermore that a State has jurisdiction over any person found within the area of its territory in respect of offences committed within its territory.

The question whether, on the strength of the territorial principle, Israel is entitled to claim jurisdiction over the Accused, can be answered easily and promptly: the Information imputes to the Accused only the commission of acts which he did not commit within the territory of Israel – this is already out of question because the State was established only on 14 May 1948 – and also not – and this ought to be in addition thereto – within the former Mandated territory of Palestine. Israel cannot therefore claim to exercise jurisdiction over the Accused Eichmann on the strength of the territorial principle as a principle of
international law.

Notwithstanding this unequivocal result, it is appropriate to add some basic comments on the territorial principle, in order to underline quite distinctly its basic character and its precedence before the four other principles which have been mentioned.

The territorial principle has also been embodied, by express provisions, in the legal systems of nearly all civilized nations.[101]

(a) In the first place, the territorial principle enjoys such a precedence in the legislation, the doctrines and
practice of international law because it is in conformity with the principle of the sovereignty of States and gives effect to the mutual respect of territorial sovereignty[102] in the administration of justice. Salmond[103] has laid particular emphasis upon the connection of the “territoriality of law” and the principle of sovereignty, by finding its basis in the political partition of the world.

(b) In Anglo-American jurisdiction, particular emphasis has always been laid upon the territorial principle. It has not lost this precedence up to this day. In these jurisdictions the basic character of this principle is emphasized time and again by legal authors, e.g. by Salmond[104]:

“The enforcement of law is undoubtedly territorial in the same way as a state is territorial; that is to say, the State power is in time of peace exercised (generally speaking) only within the territories of the state.”[105]

(c)However, in order to avoid the misunderstanding as if the territorial principle amounted only to a widespread principle of international law, we may quote – instead of other authorities – only the view of one of the most important scholars of international law, the Frenchman Donnedieu de Vabres:

“S’il est un principle de droit penal international qui soit au-dessus des discussions, consacre qu’il est par une tradition venerable et par des avantages certains, c’est celui du principe de la primaute de la loi territoriale.”[106]

The “Draft Convention on Jurisdiction with Respect to Crime”, dated 1935, is also in conformity with the precedence of the territorial principle in respect of all other possible bases of jurisdiction over foreigners – by proposing in art. 3 – also by way of systematic legal arrangement – the territorial principle as point of departure and basic rule in the question of national jurisdiction over foreigners.[107]

However, the territorial principle has also quite definitely a purpose in the area of practice and procedure.[108] Already in 1928, Donnedieu de Vabres had asked[109] to regulate international criminal law so as to warrant as completely as possible the elucidation of truth, the punishment of the guilty and the acquittal of the innocent.

These claims are best met by the territorial principle; for only in proceedings respecting this principle is it possible to compel, in case of need, the appearance of witnesses by applying compulsory measures of the State. Outside the territorial principle, there are no such means of compulsion aimed at the elucidation of truth and the realization of justice. No state has the legal means to cause foreign witnesses outside its territory to appear in one of its tribunals and to give evidence. The present State Attorney of the Land Hessen, Fritz Bauer, reports in a book[110] written by him already before the end of the War, when he was an emigre in Sweden, what happened during the so-called Leipzig trials of war criminals in 1921; it is of interest in this connection:

“It was also most difficult to get hold of the witnesses, as most of them were living in the territories of the Allied Powers and many of them refused to enter German territory or to give evidence in Leipzig, notwithstanding the safeguards given by the German government.”

This objection in the area of practice and procedure exists to a far greater extent in respect of the trial of Eichmann in Israel; for according to a statement made in the Parliament of Israel by the Minister of Justice of Israel, Rosen, witnesses prepared to give evidence in the imminent trial in favour of the Accused Eichmann could not expect to be granted immunity.[111]

If in the Leipzig trials the majority of foreign witnesses did not appear despite the grant of immunity by the German Government, it is to be expected that in the Eichmann trial no witness for the Defence will come forward at all in order to give evidence, the more so as many of the persons capable of doing so are exposed to prosecution and punishment, in view of the exceedingly wide scope of Sec. 3 (a) of the “Nazis and Nazi Collaborators (Punishment) Law” which provides for up to seven years imprisonment for the mere membership in an “enemy organization.”

It remains an open question how this fact is to be reconciled with the unquestionable effort of the authorities in charge of law enforcement in Israel to give Eichmann a “fair trial.” Of course there is a reply to that question – although not in conformity with the meaning of “fair trial” – if Pearlman’s[112] view is adopted that Israel meets – better than any country where Eichmann has committed the acts imputed to him – the conditions for thoroughly taking evidence, because in Israel more relevant documents are to
be found than elsewhere in the world, and nowhere in the world are there more witnesses available than in Israel.

This view of Pearlman’s is perfectly correct – with the important reservation, however, that it holds good only with respect to the witnesses for the Prosecution.

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