Eichmann trial - The District Court Sessions















The Trial of Adolf EichmannSession 3(Part 2 of 3)


The United States of America acted in the same way and
published "Regulations for the trial of war crimes in the Mediterranean Theater
of Operations, provisions regarding Military Commissions in the European Theater
of Operation and in the Pacific Theater of Operations."
Presiding Judge: Of what year?
Attorney General: It is not stated here. I read this from the report
of the United Nations War Crimes Commission which on 1 October 1946 gave the
first survey of legislation for the punishment of war criminals which up to that
point had been adopted in various countries.
However, the matter has meanwhile become more far-reaching and comprehensive
and has involved many different countries in the east and the west, in the north
and the south, all of whom found it necessary to do what the State of Israel had
done, namely to pass retroactive legislation for the punishment of persons who
committed crimes during the time of this war. The Court will find that these
laws came from Austria, Bulgaria, Belgium, Canada, Czechoslovakia, Denmark,
France, Greece, Hungary, Italy, Luxembourg, Holland, Norway, Poland, Rumania,
Yugoslavia and Australia. The State of Israel belongs to that same category of
nations which enacted these laws.
Judge Halevi: Mr. Attorney General, I would like to ask one question:
Were these permanent laws or temporary laws for the duration of the war?
Attorney General: These are permanent laws enacted for the purpose of
closing the breach which had been made by the Nazi regime.
Judge Halevi: I enquired because of the expression "Theater of
Operations."
Attorney General: The Americans had their special approach to this
question. There is no internal American legislation. The American legislation
applied to a specific "Theater of Operations" but the laws which I quoted here
and which I shall submit to you here and which you will be able to examine, Your
Honour, are all permanent laws. For example I shall read one of them to you -
the law of Denmark. The English translation is that of the United Nations War
Crimes Commission:
"Danish provisions regarding punishment of war crimes. If a
non-Danish subject, being in the service of Germany or serving under one of
Germany's allies has infringed the rules or customs of International Law
governing occupation and war and has performed in Denmark or to the detriment
of Danish interests any deed punishable per se in Danish law, an action can be
brought against such person in respect of the crime committed and a punishment
imposed in a Danish Court in pursuance of this Act.
In addition to the instances cited in paragraph 1, persons having committed
the following crimes shall be liable to prosecution under this act: war
crimes, crimes against humanity, such as murder, maltreatment of civilians,
prisoners or seamen, killing of hostages, looting of public or private
property, requisitioning of money or other valuables, violation of the
constitution, imposition of collective punishment, destruction by explosives
or otherwise - all and so far as these actions were performed in violation of
the rules of international law governing occupation and warfare. This act
should further apply to deportation or other political racial or religious
persecutions contrary to principles of Danish law..."I should
like to emphasize:
"...and further to all actions which although not specifically
cited above, are covered by Article 6 in the Charter of the International
Military Tribunal and the order issued by the Danish Ministry for Foreign
Affairs Law General Number 7 dated 13 November 1945."The Court will
find that these or similar expressions, at shorter or greater length, are used
in laws for the punishing of the Nazis and their collaborators.
Judge Raveh: In what year was this law promulgated?
Attorney General: In the year 1946.
Presiding Judge: Will you kindly submit this collection.
Attorney General: I am ready immediately to submit it together with
the Australian law, of which I do not have a photostat, but it is to be found in
the official Australian Compilation Acts of Parliament of the Commonwealth of
Australia.
The Court will find that many countries set up special courts. Even those
countries which are not in the habit of establishing extraordinary or special
tribunals set up such tribunals in order to try Nazi offenders for their
war-time crimes. We in our law of 1950 did not make any innovation except for
the fact that in connection with crimes against humanity we singled out a
special category for crimes against the Jewish people. Why did we do so? This
matter will be clear to the Court when I quote the remarks of the Minister of
Justice, Mr. Pinhas Rosen, at the time when he introduced his bill to the
Knesset. I read from Knesset report Vol. 14:
Judge Halevi: Do the remarks of a Minister bind the Court?
Attorney General: They are not binding. But I want to show why the
Parliament of the State of Israel singled out from amongst all the crimes
against humanity, a crime against the Jewish people.
Judge Halevi: Is this not clear from the law itself?
Attorney General: This is clear from the tragic history of the Jewish
people. Whereas a heavy disaster befell Australia, Canada and Hungary as a
result of the War, it was, notwithstanding, not a Holocaust. Hitler's regime
clashed with all these countries in the military arena, but it did not resolve
to exterminate any one of them. And there was no need to enact a law for crimes
against the Australian people; but a law had to be enacted for crimes against
the Jewish people, because of what the Nazis did. We did not make any
innovations here. This crime is entirely covered by crimes against humanity. And
when the persecutions of the Jews and the dastardly atrocities committed by the
Nazis on the Jewish people were recalled in the various trials in Nuremberg and
in other countries, these crimes were punished on the ground that these were
crimes against humanity. We also charged the Accused for the same acts, also
according to the section dealing with crimes against humanity.
However, there was one people only, whom the evil regime had determined to
wipe out utterly. That was the Jewish people. Consequently when the Parliament
of the State of Israel decided to pass its own law for punishing Nazis, it
singled out, if I may be allowed to say so, it was obliged to single out a
special status for this aspect of the crime against humanity.
And this is what the Minister of Justice said - I quote from Knesset Reports
Vol. IV page 1147-
"The law for the punishment of Nazis and their collaborators, like
the law which is presently being considered by the Knesset, the law for the
punishment and prevention of the crime of genocide, where the Knesset has
commenced but not yet completed its special reading, has again raised before
the Knesset the tragic chapter, the most tragic in the story of our people,
the chapter of the campaign of extermination and destruction, in which six
million members of our people were annihilated. There is no consolation in the
enactment of such laws. The laws will not restore our dead to us. And to the
extent that it is possible to be confronted we have to turn our attention to
the task of creativity and construction and the ingathering of the exiles
which are today being undertaken in our country.
"But by enacting these laws we are fulfilling a duty, an elementary and
natural duty, for it would be impossible for a legislative body, speaking the
language of the rule of law, to pass over these crimes in silence, the crimes
of the Nazis which shocked the world with their cruelty and brought about a
complete revolution in legal thinking.
"These acts, never before encountered, brought about innovations which have
not even been heard of before in law. In the well-known Nuremberg Charter and
the well- known Nuremberg trials new juridical principles were formulated. In
the law which I am now proposing too, you will find innovations and departures
from accepted concepts, that were accepted in the legal world even before the
manifestation of Nazi crimes. These are the departures from principles which
are generally taken as sacrosanct, from which criminal law could not have
easily dissociated itself, had it not been for the Nazi crimes.
"And these are the departures from the accepted principles of the criminal
law: Firstly, the law's purpose is to inflict punishment for acts, which in
part had not yet been described as offences at the time they were committed.
Secondly, in terms of the proposed law offenders will be brought to trial for
crimes which they committed beyond the borders of the State. Generally
speaking there is, in this too, a noteworthy departure from the usual.
Thirdly, the law is retroactive, and as is known it is generally forbidden for
criminal laws to be retroactive.
"The proposed law is distinguished from the law for the prevention and
punishment of the crime of genocide, which, as I have said, is still under
consideration by the Knesset. That law applies to the future. It has been
introduced in order to prevent a recurrence of acts that were performed in the
past, a recurrence of crimes similar to those which were perpetrated by the
Nazis. On the other hand, the law which is now being proposed applies to the
past, to a certain period in history, which began with the rise to power of
Hitler and ended with his destruction.
"It seems to me that we have done well to distinguish between these two
laws. The proposed law refers to the past. We shall not forget - nor shall we
forgive!
"There is, herein, some drawing up of accounts with the past. Therefore the
law does away with the principle of prescription regarding the most serious
crimes, those which have been included in this law as war crimes, crimes
against humanity and concerning the slaughter of oppressed people for the sole
reason that they were being oppressed. To these grave crimes the principle of
prescription will not apply.
"The proposed law is an expression of the revolution that has taken place
in the political position of the Jewish people. While other nations enacted
laws soon after the end of the War, and a few of them actually before the end
of the War, in regard to the punishment of the Nazis and their collaborators,
the Jewish people whose account with the Nazis was the longest and the
bitterest was deprived, until the establishment of the State of Israel, of the
political authority to put the Nazi criminals and the collaborators on trial.
And it lacked the political authority to demand the extradition of these
criminals for the purpose of judging them in its own country, as is proposed
in this law. It is in this sense that the change will now
occur."Presiding Judge: Which volume of the Knesset
Reports?
Attorney General: Volume IV page 1147.
Under this law various people were tried in the State of Israel before Adolf
Eichmann, from 1950 until this day, and quite substantial sentences were imposed
not only on these Nazis but also on collaborators of the Nazis, and even on Jews
who implemented their orders and who to the extent that they could not provide a
defence for themselves as persecuted persons and to the extent that this wicked
regime blunted their moral sense, were found guilty and punished under this law.

Presiding Judge: Why are you referring now to Israeli judicial
decisions?
Attorney General: Because it defines how the Court views the law, and
that is important. I quote from Criminal Appeal 119/51, Pal versus the Attorney
General, Piskei Din, Vol. 6, on page 498. On page 502, paragraph 4, the
following remarks were made by the President, Justice Olshan:
"If we compare Sections 1 and 2, it will be clear to us that all
the offences specified in Section 2 are also included, in actual fact, in
Section 1, and in that part of it which deals with crimes against the Jewish
people or crimes against humanity, except that here they are included in a
general framework, such as murder, extermination, enslavement, starvation,
expulsion and any other inhuman act. The difference is only this, that in the
first Section the crimes are directed against a group (civilian populations)
and in Section 2 they are directed against the individual. According to
Section 1, too, a person can be found guilty of a crime he committed in fact
against specific persons, if the act against these persons was perpetrated as
a result of intent to cause harm to a group, and the act committed by the
criminal against these persons was a kind of 'part performance' of his evil
intent in regard to the group as a whole, whether this group is the Jewish
people or any other civilian population. (It should be pointed out that the
term 'civilian population' is a broad term, including also a part of the
civilian population belonging to a national, religious, racial or political
group)."Israel is a party to the Convention dealing with the
Prevention and Punishment of the Crime of Genocide; incidentally, to our great
regret, it is one of the few signatories to the Convention that have fulfilled
their obligation to adopt the wording of the Convention into the language of the
local law, and it has enacted an internal Israel law regarding the crime and
prevention of genocide.{Laws of the State of Israel, vol. 4, 5710 - 1949/50, p.
101} This is to be found in Volume 1 of Rashumot No. 5, on page 66:
"Recognizing that at all periods of history Genocide has inflicted
great losses on humanity; and
Being convinced that in order to liberate mankind from this odious scourge,
international cooperation is required." United Nations Treaty Series, vol. 78,
p. 277}
The parties to the Convention confirm that genocide, whether in times of
peace or war, is a crime under international law, and the parties to the
Convention undertake to prevent it and to punish it. "Naturally
we cannot charge Eichmann in terms of the law that we enacted by virtue of this
Convention, because that law, as was already explained in the remarks of the
Minister of Justice in the Knesset, applied only to the future.
Presiding Judge: What is the year of our law?
Attorney General: The year 5710-1950.
I proceed now to the analysis of the problem of how public international law
was absorbed into the Israeli domestic law. The law of the State of Israel
follows the Law of Nations, in that local statute law must be interpreted
according to the principles of public international law. This has been laid down
in a series of judgments. In High Court 279/51, Piskei Din 6, Vol. 2, 945, on
page 966, paragraph (b) the Court said:
"It is a well-known rule that local statute law, is to be
interpreted according to the rules of public international law, unless its
contents require a different interpretation."In Civil Case
(Jerusalem) 208/52, District Court Judgment 8, page 455, it is stated on page
458:
"The principles of international law, accepted in all civilized
countries, are valid in the State of Israel, if not by virtue of international
law itself, then at any rate as part of the English common law which is valid
in Israel, in the absence of provisions to the contrary, by virtue of Article
46 of the Order-in- Council, and Section 11 of the Administration and Law
Ordinance, 5708-1948."Presiding Judge: Whose judgment is
this?
Attorney General: Justice Witkon in the case of Shebabo versus the
Belgian Consulate.
When the problem of the State of Israel's jurisdiction arose in connection
with the ships flying its flag on the high seas, the Deputy President of the
Supreme Court found a number of sources for the application of international law
to Israel. The judgment was Stampfer versus the Attorney General, Criminal
Appeal 174/54 Piskei Din 10, page 5. On page 14 opposite the letter a it is
stated:
"The said principle, in my opinion, has become part of the law of
this country in three ways: Firstly, by means of Article 46 of the Order-in
Council 1922; secondly, by virtue of Section 1 of the Admiralty Offences
(Colonial) Act of 1849, which became incorporated in the laws of Palestine by
virtue of Article 35 of the Order-in-Council 1922; and thirdly by virtue of
the sovereignty of the State of Israel."



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