views updated


source The Online Casebook. "The Eichmann Case." Available from http://www.his.com/~clight/eichmann.htm.

introduction Adolf Eichmann was an important Nazi bureaucrat who oversaw much of the Final Solution. He escaped capture as a war criminal, and eventually fled to Argentina where he lived an obscure life under an alias. Eichmann was eventually tracked down by Israeli intelligence agents. Because of doubts that Argentina would cooperate in his extradition, in 1960 Eichmann was kidnapped and taken secretly to Israel for prosecution. The Eichmann trial heard scores of witnesses about the Nazi atrocities, and was a defining moment in Israel's history. Eichmann unsuccessfully argued that the courts of Israel had no jurisdiction, that the judges were biased, and that he was being punished under retroactive criminal law. Eichmann's conviction was upheld on appeal to the Supreme Court. Appeals to Prime Minister Ben Gurion that he not be executed were rejected. Eichmann was cremated and his ashes scattered on the Mediterranean so as not to create a shrine for his perverse admirers.

The Trial Court Decision

The Supreme Court Decision


Adolf Eichmann was a high ranking SS officer who played a central role in the planning and implementation of the persecution of Jews in Germany, Poland, Hungary and several other countries before and during World War II. At the end of the war he escaped to Argentina where he lived and worked under an alias until May, 1960 when he was kidnapped by Israeli agents. Argentina complained to the Security Council about this clear violation of Argentine sovereignty. The Security Council, while making it clear that it did not condone Eichmann's crimes, declared that "acts such as that under consideration [the kidnapping of Eichmann] which affect the sovereignty of a Member State and therefore cause international friction, may, if repeated, endanger international peace and security." The Security Council requested the Government of Israel "to make appropriate reparation in accordance with the Charter of the United Nations and the rules of international law." Argentina did not demand the return of Eichmann, and in August, 1960. the Argentine and Israeli governments resolved in a joint communique "to regard as closed the incident which arose out of the action taken by citizens of Israel, which infringed the fundamental rights of the State of Argentina." Eichmann was then tried in Israel under Israel's Nazi Collaborators Law (a law enacted after Israel became a state in 1948). He was found guilty and the conviction was subsequently upheld by the Supreme Court of Israel. On May 31, 1962 Eichmann went to the gallows, the only person ever formally executed by the State of Israel.

ATTORNEY GENERAL OF ISRAEL v. EICHMANN: Trial Court Decision 36 Intl. L. Rep. 5 (Israel, Dist. Ct. Jerusalem 1961)

Learned defence counsel . . . submits:

(a) that the Israel Law, by imposing punishment for acts done outside the boundaries of the State and before its establishment, against persons who were not Israel citizens, and by a person who acted in the course of duty on behalf of a foreign country ("Act of State"), conflicts with international law and exceeds the powers of the Israel Legislature;

(b) that the prosecution of the accused in Israel following his abduction from a foreign country conflicts with international law and exceeds the jurisdiction of the Court. . . . [The Court ruled that national law would prevail over international law in an Israel court. Nonetheless, it offered a lengthy analysis of the international law questions.]

From the point of view of international law, the power of the State of Israel to enact the Law in question or Israel's "right to punish" is based, with respect to the offences in question, on a dual foundation: the universal character of the crimes in question and their specific character as intended to exterminate the Jewish people.

12. The abhorrent crimes defined in this Law are not crimes under Israel law alone. These crimes, which struck at the whole of mankind and shocked the conscience of nations, are grave offenses against the law of nations itself (delicta jurit gentium). Therefore, so far from international law negating or limiting the jurisdiction of countries with respect to such crimes, international law is, in the absence of an International Court, in need of the judicial and legislative organs of every country to give effect to its criminal interdictions and to bring the criminals to trial. The jurisdiction to try crimes under international law is universal.

[Here the Court discussed piracy, and instances of universality jurisdiction over war crimes. It also referred to "genocide" as having become a crime under customary international law prior to the Genocide Convention; but held that the limitation in the Genocide Convention, Article 6, to trial before the court of the territory, was a treaty rule only, applicable only to offences committed after the Genocide Convention entered into force in 1951.]

26. It is superfluous to add that the "crime against the Jewish people", which constitutes the crime of "genocide", is nothing but the gravest type of "crime against humanity" (and all the more so because both under Israel law and under the Convention a special intention is requisite for its commission, an intention that is not required for the commission of a "crime against humanity"). Therefore, all that has been said in the Nuremberg principles about "crimes against humanity" applies a fortiori to "crime against the Jewish people". . .

27. It is indeed difficult to find a more convincing instance of a just retroactive law than the legislation providing for the punishment of war criminals and perpetrators of crimes against humanity and against the Jewish people, and all the reasons justifying the Nuremberg judgments justify eo ipse the retroactive legislation of the Israel legislator. . . . The accused in this case is charged with the implementation of the plan for the "final solution of the problem of the Jews". Can anyone in his right mind doubt the absolute criminality of such acts? . . .

28. The contention of learned counsel for the defence that it is not the accused but the State on whose behalf he had acted, who is responsible for his criminal acts is only true as to its second part. It is true that under international law Germany bears not only moral, but also legal, responsibility for all the crimes that were committed as its own "acts of State," including the crimes attributed to the accused. But that responsibility does not detract one iota from the personal responsibility of the accused for his acts.

The repudiation of the argument of "act of State" is one of the principles of international law that were acknowledged by the Charter and judgment of the Nuremberg Tribunal and were unanimously affirmed by the United Nations Assembly in its Resolution of December 11, 1946.

30. We have discussed at length the international character of the crimes in question because this offers the broadest possible, though not the only, basis for Israel's jurisdiction according to the law of nations. No less important from the point of view of international law is the special connection which the State of Israel has with such crimes, since the people of Israel (Am Israel), the Jewish people constituted the target and the victim of most of the said crimes. The State of Israel's "right to punish" the accused derives, in our view, from two cumulative sources: a universal source (pertaining to the whole of mankind), which vests the right to prosecute and punish crimes of this order in every State within the family of nations; and a specific or national source, which gives the victim nation the right to try any who assault its existence.

This second foundation of criminal jurisdiction conforms, according to accepted terminology, to the protective principle.

34. The connection between the State of Israel and the Jewish people needs no explanation. The State of Israel was established and recognized as the State of the Jews.

In view of the recognition by the United Nations of the right of the Jewish people to establish their State, and in the light of the recognition of the established Jewish State by the family of nations, the connection between the Jewish people and the State of Israel constitutes an integral part of the law of nations.

The massacre of millions of Jews by the Nazi criminals that very nearly led to the extinction of the Jewish people in Europe was one of the major causes for the establishment of the State of the survivors. The State cannot be cut off from its roots, which lie deep also in the catastrophe which befell European Jewry.

Half the citizens of the State have immigrated from Europe in recent years, some before and some after the Nazi massacre. There is hardly one of them who has not lost parents, brothers and sisters, and many their spouses and their offspring in the Nazi inferno.

In these circumstances, unprecedented in the annals of any other nation, can there be anyone who would contend that there are not sufficient "linking points" between the crime of the extermination of the Jews of Europe and the State of Israel?

35. Indeed, this crime very deeply concerns the "vital interests" of the State of Israel, and under the "protective principle" this State has the right to punish the criminals.

41. It is an established rule of law that a person being tried for an offence against the laws of a State may not oppose his trial by reason of the illegality of his arrest or of the means whereby he was brought within the jurisdiction of that State. The courts in England, the United States and Israel have constantly held that the circumstances of the arrest and the mode of bringing the accused into the territory of the State have no relevance to his trial, and they have consistently refused in all instances to enter upon an examination of these circumstances.

50. Indeed, there is no escaping the conclusion that the question of the violation of international law by the manner in which the accused was brought into the territory of a country arises at the international level, namely, the relations between the two countries concerned alone, and must find its solution at such level.

52. According to the existing rule of law there is no immunity for a fugitive offender save in the one and only case where he has been extradited by the asylum State to the requesting State for a specific offence, which is not the offence for which he was being tried. The accused was not surrendered to Israel by Argentina, and the State of Israel is not bound by any agreement with Argentina to try the accused for any other specific offence, or not to try him for the offences being tried in the present case. The rights of asylum and immunity belong to the country of asylum and not to the offender, and the accused cannot compel a foreign sovereign State to give him protection against its will. The accused was a wanted war criminal when he escaped to Argentina by concealing his true identity. Only after he was kidnapped and brought to Israel was his identity revealed. After negotiations between the two Governments, the Government of Argentina waved its demand for his return and declared that it viewed the incident as closed. The Government of Argentina thereby refused conclusively to grant the accused any sort of protection. The accused has been brought to trial before the Court of a State which charges him with grave offences against its laws. The accused has no immunity against this trial and must stand trial in accordance with the indictment.

EICHMANN V. ATTORNEY-GENERAL OF ISRAEL: Supreme Court Decision Supreme Court of Israel (1962) 136 I.L.R. 277

Judgment Per Curiam:

' [As to the argument for the appellant that. in the event of a conflict between local legislation and intentional law.] it is imperative to give reference to the principles of international law, we do not agree with this view. According to the law of Israel, which is identical on this point with English law, the relationship between municipal and intentional law is governed by the following rules:

  • (1) The principle in question becomes incorporated into the municipal law and a part of that law only after it has achieved general international recognition . . .
  • (2) This, however, only applies where there is no conflict between the provisions of municipal law and a rule of international law. But where such a conflict does exist, it is the duty of the Court to give preference to and apply the laws of the local legislature. True. the presumption must be that the legislature strives to adjust the laws to the principles of international law which have received general recognition. But where a contrary intention clearly emerges from the statute itself, that presumption loses its force and the Court is enjoined to disregard it.
  • (3) On the other hand, a local statutory provision, which is open to equivocal construction and whose content does not demand another construction, must be construed in accordance with the rules of public international law. . . .

. . . [Concerning the retroactivity argument,] the principle nullum crimen sine lege, nulla poena sine lege, in so far as it negates penal legislation with retroactive effect, has not yet become a rule of customary international law.

It is true that in many countries [it] has been embodied in the Constitution of the State or in its criminal code, because of the considerable moral value inherent in it, and in such countries the Court may not depart from it by one iota. . . . But this state of affairs is not universal. Thus, in the United Kingdom . . . there is no constitutional limitation of the power of the legislature to enact its criminal laws with retrospective effect, and should it do so the court will have no power to invalidate them. . . . [I]n those countries . . . the moral value in the principle . . . has become legally effective only to the extent that the maxim constitutes a rule of the interpretation of statutes—where there is doubt as to the intention of the legislature the court is directed not to construe the criminal statute under its consideration as to include within its purview an act that was committed prior to its enactment. 4

Therefore, if it is [contended] that we must apply intentional law as it is, and not as it ought to be from the moral point of view, then we must reply that precisely from a legal point of view there is no such provision in it; it follows automatically that the principle cannot be deemed to be part of the Israel municipal law by virtue of international law, but that the extent of its application in this country is the same as in England.

. . . [As to the moral significance of the maxim, the Court considered that it would be a greater affront to moral principles if the type of crime of which the appellant bad been found guilty went unpunished.]

. . . The contention . . . that (since] the State of Israel had not existed at the time of the commission of the offences . . . its competence to impose punishment therefore is limited to its own citizens is equally unfounded. . . . This argument too must be rejected on the basis that the lower court had to apply local legislation.]

. . . [As) to the contention [that] the enactment of a criminal law applicable to an act committed in a foreign country by a foreign national conflicts with the principle of territorial sovereignty, here too we must hold that there is no such rule in international customary law. . . . This is established by the Judgment of the [World) Court in the Lotus case. . . . It was held . . . that the principle of territorial sovereignty merely requires that the State exercise its power to punish within its own borders, not outside them —. That subject to this restriction every State may exercise a wide discretion as to the application of its laws and the jurisdiction of its courts in respect of acts committed outside the State; and that only in so far as it is possible to point to a specific rule prohibiting the exercise of this discretion . . . is a State prevented from exercising it.

That view was based on the following two grounds:

  • (1) It is precisely the conception of State sovereignty which demands the preclusion of any presumption that there is a restriction on its independence;
  • (2) Even if it is true that the principle of the territorial character of criminal law is firmly established in various States, it is no less true that in almost all of such States criminal jurisdiction has been extended . . . so as to embrace offences committed outside its territory.

. . . [O]n the question of the jurisdiction of a State to punish persons who are not its nationals for acts committed beyond its borders, there is as yet no intentional accord.

It follows that in the absence of general agreement as to the existence of [such a] rule of international law, . . . there is, again, no escape from the conclusion that it cannot be deemed to be embodied in Israel municipal law, and therefore on that ground, too. the contention fails.

[E]ven if Counsel . . . were right in his view that intentional law prohibits a State from trying a foreign national for an act committed outside its borders, even this would not [help]. The reason for this is that according to the theory of international law, in the absence of an international treaty which vests rights in an individual, that law only recognises the rights of a State; in other words, assuming that there is such a prohibition in intentional law, the violation of it is deemed to be a violation of the rights of the State to which the accused belongs, and not a violation of his own rights.

. . . There was no prohibition whatever by international law of the enactment of the Law of 1950, either because it created ex post facto offences or because such offences are of an extraterritorial character. . . . [But] these contentions are unjustifiable even from a positive approach, namely, that when enacting the Law the Knesset [legislature] only sought to apply the principle of international law and to realise its objectives.

The crimes created by the Law and of which the appellant was convicted must be deemed today to have always borne the stamps of intentional crimes, banned by intentional law and entailing individual criminal liability. It is the particular universal character of these crimes that vests in each State the power to try and punish any who assisted in their commission. [Reference the Genocide Convention and the Nuremberg judgement]. . . . As is well known, the rules of the law of nations are not derived solely from intentional treaties and crystallised international usage. In the absence of a supreme legislative authority and international codes the process of its evolution resembles that of the common law;... its rules are established from case to case, by analogy with the rules embodied in treaties and in intentional custom, on the basis of the " 'general' principles of law recognised by civilised nations," and in the light of the vital international needs that impel an immediate solution. A principle which constitutes a common denominator for the judicial systems of numerous countries must clearly be regarded as a "general principle of law recognised by civilised nations." [C]ustomary international law is never stagnant, but is rather in a process of constant growth.

. . . [As to] the features which identify crimes that have long been recognised by customary international law[,]. . . they constitute acts which damage vital international interests... they impair the foundations and security of the international community; they violate universal moral values and humanitarian principles which are at the root of the systems of criminal law adopted by civilised nations. The underlying principle in intentional law that governs such crimes is that the individual who has committed any of them and who, at the time of his act, may be presumed to have had a thorough understanding of its heinous nature must account in law for his behaviour. It is true that intentional law does not establish explicit and graduated criminal sanctions; that there is not as yet in existence either an intentional Criminal Court, or intentional machinery for the imposition of punishment. But, for the time being, intentional law surmounts these difficulties . . . by authorising the countries of the world to mete out punishment for the violation of its provisions. This they do by enforcing these provisions either directly or by virtue of the municipal legislation which has adopted and integrated them.

The classic example of a "customary" international crime . . . is that of piracy jure gentium. [Another] example . . . is that of a "war crime" in the conventional sense . . . the group of acts committed by members of the armed forces of the enemy which are contrary to the "laws and customs of war." individual criminal responsibility because they undermine the foundations of intentional society and are repugnant to the conscience of civilised nations. When the belligerent State punishes for such acts, it does so not only because persons who were its nationals . . . suffered bodily harm or material damage. but also, and principally, because they involve the perpetration of an intentional crime in the avoidance of which all the nations of the world are interested.

In view of the characteristic traits of intentional crimes and the organic development of the law of nations—a development that advances from case to case under the impact of the humane sentiments common to civilised nations, and under the pressure of the needs that are vital for the survival of mankind and for ensuring the stability of the world order it definitely cannot be said that when the Charter of the Nuremburg International Military Tribunal was signed and the categories of "war crimes" and "crimes against humanity" were defined in it, this merely amounted to an act of legislation by the victorious countries.

. . . [The interest in preventing and imposing punishment for acts comprised in the category in question especially when they are perpetrated on a very large scale — must necessarily extend beyond the borders of the State to which the perpetrators belong and which evinced tolerance or encouragement of their outrages; for such acts can undermine the foundations of the international community as a whole and impair its very stability. . . .

If we are to regard customary international law as a developing progressive system, the criticism becomes devoid of value . . . [E]ver since the Nuremberg Tribunal decided this question, that very decision must be seen as a judicial act which establishes a "precedent" defining the rule of international law. In any event, it would be unseemly for any other court to disregard such a rule and not to follow it.

If there was any doubt as to this appraisal of the "Nuremberg Principles" as principles that have formed part of customary international law 64 since time immemorial, "such doubt" has been removed by . . . the United Nations Resolution on the Affirmation of the Principles of International Law Recognised by the Charter and Judgment of the Nuremberg Tribunal and that affirming that Genocide is a crime under intentional law . . . and as [is seen] in the advisory opinion of 1951 . . . the principles inherent in the [Genocide] Convention — as distinct from the contractual obligations embodied therein — had already been part of customary intentional law at the time of the shocking crimes which led to the. Resolution and the Convention.

. . . [T]he crimes established in the Law of 1950 . . . must be seen today as acts that have always been forbidden by customary international law — acts which are of a "universal" criminal character and entail individual criminal responsibility. . . . [T]he enactment of the Law was not, from the point of view of international law, a legislative act that conflicted with the principle nulla poena or the operation of which was retroactive, but rather one by which the Knesset gave effect to intentional law and its objectives.

. . . [I]t is the universal character of the crimes in question which vests in every State the power to try those who participated in the preparation of such crimes, and to punish them therefore. . . .

One of the principles whereby States assume, in one degree or another, the power to try and punish a person for an offence he has committed is the principle of universality. Its meaning is, in essence, that that power is vested in every State regardless of the fact that the offence was committed outside its territory by a person who did not belong to it, provided he is in its custody at the time he is brought to trial. This principle has wide support and is universally acknowledged with respect to the offence of piracy jure gentium. . . . [One view] holds that it cannot be applied to any other offence, lest this entail excessive interference with the competence of the State in which the offence was committed.

A second school . . . agrees . . . to the extension of the principle to all manner of extraterritorial offences committed by foreign nationals. . . . It is not more than an auxiliary principle to be applied in circumstances in which no resort can be had to the principle of territorial sovereignty or to the nationality principle, both of which are universally agreed to. [Holders of this view] impose various restrictions on the applications of the principle of universal jurisdiction, which are designed to obviate opposition by those States that find themselves competent to punish the offender according to either of the other two principles. [One of these reservations is that the extradition of the offender should be offered to the State where his offence was committed.].

A third school. . . . holds that the rule of universal jurisdiction, which is valid in cases of piracy, logically applies also to all such criminal acts or omissions which constitute offences under the law of nations (delicta juris gentium) without any reservation whatever or, at most, subject to a reservation of the kind Oust] mentioned. . . . This view has been opposed in the past because of the difficulty in securing general agreement as to the offences to be included.

. . . Notwithstanding the differences . . . there is full justification for applying here the principle of universal jurisdiction since the intentional character of the "crimes against humanity" (in the wide meaning of the term) is, in this case, not in doubt, and the unprecedented extent of their injurious and murderous effect is not open to dispute at the present day. In other words, the basic reason for which international law recognises the right of each State to exercise such jurisdiction in piracy offences . . . applies with all the greater force.

[I]t was not the recognition of the universal jurisdiction to try and punish the person who committed "piracy" that justified the viewing of such an act as an international crime sui generis, but it was the agreed vital interest of the international community that justified the exercise of the jurisdiction in question. . . .

It follows that the State which prosecutes and punishes a person for that offence acts solely as the organ and agent of the intentional community, and metes out punishment to the offender for his breach of the prohibition imposed by the law of nations.

. . . We have also taken into consideration the possible desire of other countries to try the appellant in so far as the crimes. . . . were committed in those countries or their evil effects were felt there . . . But . . . we have not heard of a single protest by any of these countries against conducting the trial in Israel. . . . What is more, it is precisely the fact that the crimes . . . and their effects have extended to numerous countries that empties the territorial principle of its content in the present case, and justifies Israel in assuming criminal jurisdiction by virtue of the "universal" principle.

[It is argued by counsel that Article 6 of the Genocide Convention provides that] a person accused of this crime shall be tried by a court of competent jurisdiction of the State in which it was committed . . . Article 6 imposes upon the parties contractual obligations with future effect. . . . obligations which bind them to prose cute for crimes of "genocide" which will be committed within their territories in the future. The obligation. however, has nothing to do with the universal power vested in every State to prosecute for crimes of this type committed in the past — a power which is based on customary international law.

. . . The State of Israel was entitled, pursuant to the principle of universal jurisdiction and acting in the capacity of guardian of international law and agent for its enforcement, to try the appellant. This being so, it is immaterial that the State of Israel did not exist at the time the offences were committed. . . .

[The Tribunal drew attention to Israel's connection to the Jewish people and the Jewish National Home in Palestine.] If we . . . have concentrated on the international and universal character of the crimes for which the appellant has been convicted, one of our reasons for doing so was that some of them were directed against non-Jewish groups. . . .

[As to the circumstances of Eichmann's capture, the Court cited a long list of local, British. American and Continental precedents and reached the following conclusions:]

  • (a) In the absence of an extradition agreement between the State to which a "fugitive offender" has been brought for trial and the country of "asylum" . . . and even if there existed such an agreement . . . ut the offender was not extradited . . . in accordance therewith — the Court will not investigate, the circumstances in which he was detained and brought to the area of jurisdiction.
  • (b) This also applies if the offender's contention be that the abduction was carried out by the agents of the State prosecuting him, since in such a case the right violated is not that of the offender, but the sovereign right of the State aggrieved. . . . The issue must therefore find its solution on the intentional level, and is not justiciable before the Court into whose area of jurisdiction the offender has been brought.
  • (c) From the point of view of international law the aggrieved State may condone the violation of its sovereignty and waive its claims, including the claim for the return of the offender to its territory, and such waiver may be explicit or by acquiescence.
  • (d) Only in one eventuality has a fugitive offender a right of immunity when he has been extradited by the country of asylum to the country requesting his extradition for a specific offence, which is not the offence for which he is tried. . . .
  • (g) The right of asylum and immunity belong to the country of asylum, not to the offender . . . .

. . . The appellant is a "fugitive from justice" from the point of view of the law of nations, since the crimes that were attributed to him are of an international character and have been condemned publicly by the civilised world . . . ; therefore, by virtue of the principle of universal jurisdiction, every country has the right to try him. This jurisdiction was automatically vested in the State of Israel on its establishment in 1948 as a sovereign State. Therefore, in bringing the appellant to trial, it functioned as an organ of intentional law and acted to enforce the provisions thereof through its own law. Consequently, it is immaterial that the crimes in question were committed . . . when the State of Israel did not exist, and outside its territory. . . . The moment it is admitted that the State of Israel possesses criminal jurisdiction both according to local I an according to the law of nations. it must also be conceded that the Court is not bound to investigate the manner and legality of the . . . detention. . . . [The Court then turned to the issues of Acts of State, and of superior orders]

. . . Appeal dismissed