Eichmann trial - The District Court Sessions








The Trial of Adolf EichmannSession 1(Part 5 of 5)


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 offence 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
| Index
| Next
]















Home ·  Funding · 
Search · 
Site
Map ·  What's
New?













© The Nizkor Project, 1991-2004








  c c