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Attorney General V. Adolf Eichmann-Case Brief

Facts
Adolf Eichmann (defendant) was a German Nazi officer involved in the internment and extermination of Jewish people during World War II. When the war ended, Eichmann escaped to Argentina, where years later, he was kidnapped by Israeli officers and forcibly brought to Israel for trial for war-crime charges.

Eichmann challenged the Israeli court's jurisdiction, arguing that the court was not empowered to adjudicate the case against Eichmann because his illegal kidnapping by Israeli agents violated international law. The attorney general of Israel (plaintiff) contended that the legality of the means of arrest and of the transfer of a fugitive were not relevant jurisdictional issues for the court to address.

Additionally, at the time of Eichmann's seizure, Argentina complained to the United Nations Security Council (Security Council), alleging a violation of Argentina's sovereignty by Israel's actions. The Security Council issued a Resolution, recognising that Israel's conduct would disrupt international relations if the conduct were permitted in the future, and requesting that Argentina and Israel reach an agreement on the settlement of the dispute.

As a result, before Eichmann's indictment, Argentina and Israel settled the issue, with Argentina clearing Israel of responsibility for any violations related to Eichmann's kidnapping. The Supreme Court of Israel then considered Eichmann's challenge to Israel's jurisdiction.

The trial commenced on 11 April 1961 with the indictment charging Eichmann with 15 counts of crimes against the Jewish people, crimes against humanity, war crimes and membership in an organisation declared criminal by the International Military Tribunal in Nuremberg 15 years earlier.


The Legality Of The Eichmann Trial Under Israeli Law

Adolf Eichmann was tried under the Nazis and Nazi Collaborators (Punishment) Law, which was adopted by the Knesseth on August 1, 1950.Section one of this Law provides that any person who has done, during the period of the Nazi regime, in an enemy country, an act constituting a crime against the Jewish people or an act constituting a crime against humanity or an act constituting a war crime is liable to the death penalty.

No prescription runs for section one offenses, and the Court may deviate from the rules of evidence if it is satisfied that this will promote the ascertainment of truth and the just trial of the case under section 15(a).

Legal Issues

The Nazis and Nazi Collaborators (Punishment) Law is highly unusual; it is retroactive and extraterritorial in effect. Add to that the fact that Eichmann was forcibly abducted from Argentina to be tried under this unusual, retroactive, and extraterritorial law, and you have, in a nutshell, the main legal issues presented. They are:
  1. Can Israel try Eichmann, although he was forcibly abducted from Argentina?
  2. Can Israel try Eichmann for acts committed before May 8, 1945, under a statute enacted in 1950?
  3. Can Israel try Eichmann, who is not a national of Israel, for offenses alleged to have been committed outside Israel against persons who were not nationals of Israel at the time of the commission of these offenses?

The Legality Of The Eichmann Trial Under International Law

Let us now take up the three questions listed above and try to analyze them according to international law.
  1. The legality of Eichmann's capture

    Eichmann was apparently apprehended in Argentina, where he was living under a disguise, by special agents of the Israeli authorities. The Israeli government subsequently subscribed to conflicting versions as to the official role of the government in this capture, stating at one time that government agents participated in his pursuit and capture from the very beginning and stressing later that Eichmann was captured by volunteers, members of a private group, and was then flown to Israel where he was officially surrendered to the authorities. There was no extradition treaty between Argentina and Israel at the time of the abduction. In the absence of such treaty the two governments could have nevertheless negotiated Eichmann's surrender to Israel for trial.

    Argentina lodged an official complaint with the United States Security Council stating the forcible abduction of Adolf Eichmann was a clear ciolation of International law and an invasion of its sovereignty. However, after Israel made its appologythe matter was declared closed in a joint communique issued by the two nations on August 3,1960. Since all concerned nations waived their right to Eichmann to avoid embarrassing situation, Israel appeared free to pursue with regard to him a conduct of its own choice.

    In conclusion, it is submitted that even if Eichmann were, in fact,forcibly abducted by agents of the Government of Israel acting on the territory of Argentina without the latter's consent, this would no longer vitiate the legality of Eichmann's trial by Israel. The claim to have Eichmann returned was Argentina's alone to make or to renounce. By settling for a public apology, Argentina has validly renounced any claim for the return of Eichmann. The at least rather strong possibility that an international tort was committed by the abduction of Eichmann from Argentina will, therefore, no longer affect the legality of the trial of Eichmann by an Israeli court.

  2. Can Israel Try Eichmann for Acts Committed Before I945 under a Statute Enacted in 1950?

    The Israeli Nazi and Nazi Collaborators (Punishment) Law, 1950 was enacted five years after the end of the Second World War. However, the Supreme Court held that the prosecution of Adolf Eichmann under this law did not violate the prohibition of retroactive criminal law (principle of legality). The Supreme Court stated that the fundamental prohibition of retroactive criminal legislation was not then part of international law.

    In addition, it noted that the national law did not violate any ethical prohibition of retroactive criminal punishment since anyone should have known that such acts as deporting or transferring civilians to death camps, stealing their property and then killing them was morally wrong.

    However, more importantly, it also placed the judgment on the more solid legal foundation that the conduct had long been Recognised as criminal under International criminal law when committed. It declared that the crime of Adolf Eichmann had been convicted must be deemed today as having always borne the stamp of international crimes, banned by the law of nations and entailing individual criminal responsibility.

    The prohibition of retroactive criminal legislation (principle of legality), recognized in the 1948 UDHR as a Fundamental Right, has since been guaranteed in international and regional human rights instruments and is now firmly part of customary international law.

    However, in line with the Supreme Court judgment ,under conventional and customary international law, this principle of legality does not prohibit states from enacting legislation including crimes under international law in their penal codes that applies retrospectively to conduct that was recognised as criminal under international law committed.

  3. Can Israel Try Eichmann, Who Is Not a National of Israel, For Offences Alleged To Have Been Committed Outside Israel Against Persons Who Were Not Nationals of Israel at the Time of theCommission of These Offences?

    Every country applies only its own penal law, and every country punishes-subject to exceptions dictated by diplomatic or sovereign immunity-alloffences committed on its own territory.
    In this case, theoffences charged are not alleged to have been committed in Israel, nor by a national of Israel, nor against nationals of Israel, nor against the State of Israel. But there is a permissive, possibly even directive, rule of public international law covering the offences alleged to have been committed by Adolf Eichmann.

    The question, briefly, is this: does international law permit a state to punish an alien for an offence committed abroad which is punishable both under the law of the place of commission and under the law of the place of prosecution, provided the punishment imposed does not exceed the penalty incurred in the place of commission? The answer can only be in the affirmative.

    All states are interested in bringing alleged criminals to justice no state is interested in harbouring fugitives from justice. On the other hand, no state is obliged, in the absence of treaty, to extradite persons who are alleged to have committed offences abroad; the machinery of extradition is rather cumbersome, to say the least , even where states are willing, in the absence of treaty, to effect extradition, formal obstacles such as the lack of diplomatic relations may well prevent or delay the delivery of the person accused.

    While extradition remains cumbersome and of limited applicability, the answer to the dilemma, at least as between states which have little or no formal pre-admission procedures for aliens, is criminal law enforcement by proxy.

    Many states have adopted this principle, and at least where there are genuine obstacles to extradition, its compatibility with international law seems recognised by the weight of authority. In the instant case, the obstacles are real, for while there are official relations between the Federal Republic of Germany and Israel, there are no diplomatic relations , and there is no extradition treaty.

    Therefore, since Adolf Eichmann cannot readily be extradited by Israel to the Federal Republic of Germany-and since Germany, along with Poland and the SovietUnion, by approving of Eichmann's trial by Israel, have, in effect, waived extradition-Eichmann can be tried by proxy in Israel.

Court's Holding

On last day of testimony, Adolf Eichmann admitted that while he was guilty of arranging the transport of millions of Jews to their deaths, he did not feel guilty of the consequences.

Although Eichmann followed the common plea of Nazi perpetrators that he was only following the orders of others, his judges concluded that Eichmann had been a key perpetrator in the genocide of European Jewry. On December 12, 1961, he was found guilty of several of the charges asserted in the original indictment, and on December 15 sentenced to death.

On June 1, 1962, Eichmann was executed by hanging. His body was cremated and the ashes were spread at sea, beyond Israel's territorial waters. The execution of Adolf Eichmann remains the only time that Israel has enacted a death sentence.

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