1961

Attorney General of the Government of Israel v Eichmann District Court of Jerusalem 36 ILR 5

Adolf Eichmann, was a high ranking SS officer, administrator of ‘the final solution to the Jewish problem’ policy that exterminated more than 4 million people, he was abducted from Argentina on 10 May 1960 and brought to Israel by a “volunteer group” to face charges of war crimes, crimes against humanity and crimes against Jewish people. His ashes were scattered on the Mediterranean to not defile the Jewish soil. Decision 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: (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 offences against the law of nations itself (delicta juris 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 effects to its criminal interdictions and to bring the criminal to trial. The jurisdiction to try crimes under international law is universal.

This universal authority, namely authority of the forum deprehensionis (court of the country in which the accused is actually held in custody) was already mentioned in Corpus Iuris Civilis, and towns of north of Italy in middle ages applied it to dangerous criminals (vagabundi, assasini) who happen to be within their jurisdiction. (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 judgements justify eo ipse the retroactive legislation of the Israel legislator. (30) 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 vest 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 {See Joyce case} {Protective principle is not confined to those foreign offences that threaten a ‘vital interest’ of a state, it is necessary a linking point} The massacre of millions of Jews by the Nazi criminal … was one of the major causes for the establishment of the State of the survivors … Can there be one who would contend that there are not sufficient “linking points” between the crime of extermination of the Jews of Europe and the State of Israel? (35) Indeed, this crime very deeply concerns the “vital interest” 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 means whereby he was brought within the jurisdiction of that State. (50) 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) The Government of Argentina waved its demand for his return and declared that it viewed the incident as ‘closed’