Attorney General of Israel v. Eichmann (1961), 36 I.L.R. 277 (Israel Sup. Ct.)

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Court: District Court of Jerusalem, Israel

Judgment: 11 December 1961

Judge: J. Moshe Landau (Presiding) J. Benjamin Halevi J. Yitzchak Raveh


Parties

● Attorney General of the Government of Israel

● Adolf Eichmann

Introduction

Adolf Eichmann's trial for crimes committed under the Nazi tyranny established a crucial current precedent for Israel. This case spread the concept of universal jurisdiction and the exercise of retroactive penal law as it was the first and only cause when Israel passed a death sentence.

Adolf Eichmann, also known as 'Richard Klementz,' was a World War II fugitive who lived in Argentina under the alias of Adolf Eichmann. He was extradited from Argentina without the knowledge or approval of the government. Argentina later contacted the UN Security Council, claiming that Israel had committed an international tort. However, a joint communique issued on August 3, 1960, resolved the matter between the two countries.


Facts and Arguments

Adolf Eichmann (defendant) was a German Nazi commander who participated in the detention and extermination of Jews during World War II. Eichmann runaway to Argentina after the war, where he was arrested by Israeli officers and expatriated to Israel to face war crimes charges.

Eichmann confronted the Israeli court's jurisdiction, alleging that it lacked the entitlement to hear his case because his abduction by Israeli operatives was illegal under international law. The Israeli attorney general (plaintiff) maintained that the legality of a fugitive's detention and the transfer was not a significant jurisdictional issue for the court to address.

Argentina also objected to the United Nations Security Council (Security Council) at the time of Eichmann's seizure, stating that Israel's actions had violated Argentina's sovereignty. The Security Council passed a resolution acknowledging that Israel's actions would disturb international relations if they were allowed to continue, and demanding that Argentina and Israel find an agreement on the dispute's resolution.

As a result, before Eichmann's prosecution, Argentina and Israel reached an agreement, with Argentina absolving Israel of any responsibility for Eichmann's kidnapping breaches. Eichmann's claim to Israel's jurisdiction was then heard by Israel's Supreme Court. The accusation charging Eichmann with 15 counts of crimes against the Jewish people, crimes against humanity, war crimes, and membership in an organization declared criminal by the International Military Tribunal in Nuremberg 15 years prior began the trial on April 11, 1961.

In This case, the principle highlighted and applied is the universal principle (Jurisdiction). It acknowledges that a sovereign can enact criminal laws that apply to anyone who commits a universal crime (Jus Cogence, War Crime, Mass Killing, etc.) When nations regard a behavior as being of worldwide concern, it can happen anywhere in the world.


Issues were:

● Whether Israel has the authority to put him on trial or not?

● Given that Eichmann is a foreign national and the crimes were committed on foreign soil, does the District Court of Jerusalem have jurisdiction to try the case?


Prosecution’s arguments:

● The Attorney General refuted each of the defense's claims, claiming that Israel has the authority to try Eichmann's accusation under the War Crimes Tribunal's rules. Furthermore, it was claimed that Nazi criminals had become hostis humani generis and in accordance with custom.

● In addition, Nuremberg Law identifies that nullum crimen sine lege cannot be handled as an international rule of law, citing the William Joyce and Lotus cases.

● The prosecution contended that the State of Israel had been there since 1917, that is before the accused committed the crimes, refuting the defense's retroactive claim. The prosecution said that Eichmann was only submissive to Heydrich, Himmler, and Hitler when it came to taking orders from a wicked system and that he must be held answerable for his crimes as long as he had a moral choice.


Defence’s arguments

The defense argued that the Court of Jerusalem is incompetent and lacks jurisdiction due to prejudice and jus ex injuria non oritur, because Israel's abduction of the accused was a violation of international law.

● The natural justice principle and the maxim nullum crimen sine lege are both violated under 1950 law. As a result of its extraterritorial and retroactive nature, as well as the fact that the State of Israel did not exist at the time of the alleged offences, the 1950 Law is in breach of international law.

● For fear of being imprisoned, the defence argued that no witnesses would come forward, therefore Eichmann was the lone witness throughout the trial. His principal defence was that he was not in charge of the "Final Solution," that he was compelled to follow orders from an evil administration, and that he was "not responsible from a human standpoint" for his role in the mass murder of Jews.


Reasoning and Ration

Decision: Adolf Eichmann testified on the last day of testimony that while he was responsible for the transport of millions of Jews to their deaths, he did not feel responsible for the consequences.

Despite Eichmann's claim that he was just carrying out orders from others, his judges found that he was the main culprit in the extermination of European Jews. He was found guilty of several of the allegations in the initial indictment on December 12, 1961, and condemned to death on December 15.

Eichmann was executed by hanging on June 1, 1962. His ashes were scattered at sea, beyond Israel's territorial waters, after he was cremated. The execution of Adolf Eichmann is the only occasion Israel has carried out capital punishment.


Reasoning: His offenses were crimes against humanity, and he broke the principle of jus cogence, which means that any government has the authority to prosecute such crimes.

The Nazis and Nazi Collaborators (Punishment) Law 5710-1950 established the Court's jurisdiction. This law does not contravene international law principles. The basis for Israel's "right to punish" is twofold.


● The first is the general nature of the crimes in question, which are grave infringement of international law that, in the deprivation of an international court, can be prosecuted by any domestic court.


● Second, the crimes' special nature, namely the destruction of the Jewish people, provides the required link between the newly-founded State of Israel and Accused, which were formed and established as the Jewish State. And because the Accused's crimes jeopardize the State's important interests, the State has the authority to penalize them under the protective principle.


The way in which the Accused was brought before the Court does not invalidate this jurisdiction. It is a well-established legal principle that a person facing trial for violating a State's laws may not object to his trial because of the illegality of his arrest or the means by which he was brought to the court's jurisdiction. This norm applies equally when the accused is depending on international rather than local law infractions. An international tort is created when international law is broken, and it can be "cured" by a waiver. In this case, the united agreement of the governments of Argentina and Israel on August 3, 1960 "cured" Israel's international tort of entering Argentinian territory to abduct the Accused.


After observing the SS's command structure and the breadth of the Accused's authority, the Court determined that the latter followed general orders from his superiors but had a broad disposition. The defence of higher commands (as defined in Section 19(b) of the Criminal Code Ordinance of 1936) is not available in circumstances of offences listed in the previously mentioned Law, although it can be used as a deliberation in sentencing under Section 8 of the Punishment Law.


Conclusion

Adolf Eichmann’s trial can be seen as a trial without precedents, as well as a trial that is most dangerous. One of the crucial reasons for this is that a person was snatched away from the safeguard of a sovereign State and taken on a trial by his detainers for crimes he did not commit in that state or to its citizens, notwithstanding being proven guilty. Furthermore, given the location of the trial and the psychological milieu, it appears that the Judges will be unable to remain objective throughout. Nevertheless, the Court's honor and moderation, as well as its willingness to provide justice through documents and circumstantial evidence, suppressed all phases of the proceedings and must be recognized. Through an academic judgment, the Court depended upon a synthesis of international and national law.


Conclusively, with no direction from the international community and a disappointing war criminal course of action in Germany, Israel had no choice but to act to release the massive load it had taken on as soon as Eichmann was captured, for which the State must be praised.


~Authored by Shivani Kharai



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