later resolutions relating ' to the obligation of States to extradite war criminals. The Problems of the As is known, none of the States where Department IVB4 of the Gestapo carried out its activities and Eichmann Trial where the victims of the "final so­ lution" were imprisoned, cremated or annihilated by other means, has By Prof. M. MUSHKA T demanded the extradition of Eich­ mann. HUNDREDS of memoirs and so- conducive to a just and open trial The Minister of Justice of West ciological, psychological, politi­ in the given case. Germany stated explicitly that his cal, historical, legal and other stu­ We shall examine here these ar­ government will not ask for Eich­ dies have already been written on guments, which are certainly serious mann's extradition; the countries the Nazi era, the roots of the cri­ enough, and which have been re­ which would have been most jus­ minal policies of Nazism, and the cently put forward also in the N ew tified in making such a demand­ means by which they were carried York Times Magazine of 22 January Poland, Yugoslavia, France, Czecho­ out, including the "final solution." 1961, by a person highly specialized slovakia, Hungary, Holland, Bel­ Hundreds of domestic and interna­ in the field, Mr. Telford Taylor, gium and others-approved Israel's tional trials have already been con­ who was assistant to the American decision to bring the accused before ducted against the culprits. The Chief Prosecutor before the Nurem­ an Israel court, and their competent whole truth concerning this tragic berg International Tribunal and institutions helped the investigation era has nevertheless not been Prosecutor before the American Mi­ in Israel by collecting relevant in­ brought to light as yet, and many litary Tribunals in Germany. formation. As to the proposal to re­ uncertain aspects still remain to be In the 17th century, a principle, turn Eichmann to Argentina, it had clarified and explained by studies, acknowledged today by all states, no strong formal basis, since we trials, and political debates. This is was formulated by Grotius, one of have no suitable extradition agree­ why the Eichmann trial is awaited the fathers of international law, ment with this country, and for other with great interest, for it is hoped namely that criminals should be reasons too. From the theoretical that this trial will further clarify tried or should be .extradited so that point of view, there was no possi­ and throw new light on the circum­ others may bring them to justice. bility of discussing such a proposal, stances in which the criminal Nazi As to the obligation of all states because Eichmann never resided in policies were shaped and carried to bring war criminals to justice, if that country legally, and the asylum out, particularly with regard to the they do not extradite them to other that he found there de facto (hid­ "Jewish Question". states for trial and punishment, this ing under an assumed name) was Ever since Eichmann was appre­ rule is not merely customary today; in total contradiction with the prin­ hended and brought to Israel, doubts it is also explicitly formulated in a ciples of international law and to have been expressed from different large number of treaties dating from the explicit obligations of Argentina sources as to his trial in Israel. These before the First World War, from and her laws. The diplomatic con­ doubts can be summed up in the the period between the two World flict between Israel and Argentina following manner: Wars; and the period from the be­ about the capture of Ricardo Cle­ (a) By enforcing an Israel law ginning of the Second World War ment (Eichmann) ended with the against war criminals, it is not pos­ to the present day. common declaration of both gov­ sible to avoid infringing upon Some of these treaties are: ernments of August 3, 1960 stating sanctified principles of justice, ac­ (a) the Geneva Convention of that the acknowledgement of the cepted by all, which forbid the con­ 1864. infringement of the sovereignty of demnation of persons in accordance (b) The 4th Hague Conve~tion Argentina satisfies Argentina. By to laws which did not exist at the of 1907. the ruling of the Security Council time when the crime was commit­ (c) The Versailles Treaty of 1919. regarding this dispute the right of ted. Obviously, the Nazi crimes ( d) The Declaration of nine states Israel to try and punish Eichmann were committed at a time when the about the Nazi crimes, of January was confirmed. Since there is no State of Israel and its laws did not 13, 1942, known as the St. James State in the world apart from Israel yet exist. Declaration. which has decided to bring Eich­ (b) The Israel law punishing ( e) The Three Powers' Moscow mann to trial, there is no room to crimes against the Jewish people Declaration of October 30, 1945 on question its jurisdiction; moreover does not consider the fact that these the Nazi Atrocities. as there is no qualified international cnm~s infringe upon the principles (f) The London Agreement of 8 court existing, such opposition could of international law, i.e. that they August 1945, establishing the Inter­ only be construed as an effort to are crimes against humanity, and national Military Tribunal, before impede the bringing of the accused not specifically against Jews, and which the major Nazi war criminals to bar. the application of Israel law cannot were tried at Nuremberg. The application of the Israel law therefore be free from feelings of (g) Law no. 10 of the Allied Con­ to Eichmann prevents in this case vengeance, particularly since the ac­ trol Council for Germany, of 20 Oc­ the paralysis of international law cused was brought to Israel by il­ tober 1945, etc ... concerning the procecution of war legal means. These principles are also reflected criminals. Not only does it not in­ ( c) Israel should be satisfied in in a large number of UN resolu­ fringe upon the legal principles ac­ interrogating the accused, and should tions, particularly in the resolution cepted by all, but on the contrary, then hand him over for judgment of December 11, 1946, which con­ it helps to respect them and carry to an international or a German firmed the principles of the Nurem­ them out. court, for, the State of Israel being berg Charter and the judgment of It should also be emphasized that a Jewish state, its atmosphere is not the Nuremberg Tribunal, and in the application of the Israel law in

6 this case does not conflict with the the internal affairs of the states in succeeded in obtaining the cri­ principle according to which no question, and as they conform to minals for trial are competent to conviction has any validity if not international law, their enactment establish a court in order to punish founded on a law existing already and application cannot be challeng­ them; the American court confirm­ at the time when the crime was ed, and in fact, the Israel law for ed this rule in many cases, among committed. It is true that the State bringing Nazis to justice, as well as others; in the case of the trial of of Israel is a new political body, similar legislation of other new the Nazi jurists. In the trial of the having no traits in common with states were never questioned or heads of the Nazi concern Flick, it the political body existing on its ter­ criticized from a purely legal point of was determined that any state is ritory before its creation, it is also view. It is evident that the rights of competent to bring to trial any per­ true that all its laws are an integral Israel in this matter are not weaker son infringing upon the Rules of part of a new judicial system, re­ than those of other states, and the War and upon International Crimi­ lated to the emerging of the State responsibility for special crimmal nal Law in general. Justice Stone of Israel as a new sovereign unit. acts against members of the Jewish of the U.S. repeated this principle But it cannot be denied that in cer­ people should particularly be taken as reflected in the Case of Quirin tain domains, the State of Israel is into account. (1942) or even more precisely in the heir of rights which were related Furthermore, Eichmann is not the judgment of the Japanese war to the mandatory territory and to accused only of crimes under the criminal General Yamashita. the sovereign power, whose obliga­ law promulgated after the war, i.e. The practice of American courts tion was to further here the build­ the Law For Judging Nazis and in these cases and in other similar ing of the "National Home" . The their Collaborators-1950, but also ones clearly reflects the principles of State of Israel is the continuation of under paragraph 23 of the Criminal customary International Law, ac­ the "National Home", whose con­ Code ordinance 1936 and the com­ cepted by all, which today are also struction began under the Mandate; mon law prbciples. principles of conventional Interna­ it is thr:: fruit of the efforts and of As for the law for judging Nazis tional Law, by which any state is the struggle to carry out the Man­ and their Collaborators, 1950, it is competent to judge war criminals date's provisions and to transform founded on the statute of the Inter­ as such, without distinction of na­ it into a sovereign Jewish State. The national Military Tribunal. This tionality or the place where their activity of the Nazis was directed Statute, with all its new formal ad­ crimes were committed, just as any against the interests of the "Home" ditions and definitions, is after all state is competent to try pirates. as a nucleus of a Jewish State-by to a great extent a codification of According to the principle of the way of concentrating considerable customary rules whicn were con­ individual responsibility of war numbers of Jews-and as a terri­ firmed and transformed into writ­ criminals and to the principle of tory governed by one of the main ten law from the end of the last universality regarding their being allies in the war against the Axis: century, and found their expression brought to trial, trials of war crim­ Great Britain. in the Geneva and Hague Conven­ inals were held at the end of the A number of international docu­ tions, in the Versailles Treaty and Second World War, not only in ments, as for example the Repara­ in other international documents. It the courts of states against whom tions Agreement signed in 1952 in should also not be forgotten that or against whose citizens war crimes Luxemburg between Israel and Rules and customs of war, included had been committed, but also in the West Germany, contain explicit ob­ in the 4th Hague Convention of courts of states which decided to ligations for Israel and its residents 1907 are an integral "part of the try these criminals as an expression as well as for the territory of the English Common Law, which has of their solidarity in bringing them past mandate and its residents (re.­ remained in force in the State of to justice, this being their contribu­ settlement of refugees from Nazi Israel. This is why Eichmann's in­ tion in reinforcing peace. Germany in Israel, began during dictment is in fact founded not on­ It is also known that the terri­ the Mandate) . There are also docu­ ly upon the Criminal Code Orclin­ torial principle, i.e. the trying of ments in which Israel is explicitly ance of 1936, and the Law for criminals on the territory of the named as one of the "United Na­ Judging Nazis, 1950, but also on state where the crimes were com­ tions" of the anti-Nazi Alliance, as the Common Law, and this means mitted, came into existence also for example Law no. 54 of the Al­ that from the formal or the factual because of the fact that it is easier lied High Commission for Ger­ point of view, there is no ground to carry out the investigation on many, and this in view of the fact to the contention that the accusa­ this territory, by taking down testi­ that Israel became independent tion in this case is founded on a monies and collecting other materi­ after May 8, 1945, at which date retroactive legal basis. al. Now, the greatest concentration her territory was governed by one At the same time it should be of persons who survived extermina­ of the founding members of the emphasised that the jurisdiction of tion and who can testify as to the UN, Great Britain. Israel courts in this case is also link­ methods by which the "final solu­ Even states which are not mem­ ed with the principle of the personal tion" was carried out, is to be found bers of the "United Nations," both responsibility of war criminals, in Israel. Here are also located the former enemy and neutral states, which is independent of any terri­ archives of the "Yad W ashern" Re­ also have rights and obligations as torial considerations, and is a uni­ membrance Authority which are to putting war criminals on" trial; versal principle. However, the fact one of the basic archives of its kind, these were imposed on ' the two that the accused is to be tried in containing documents directly con­ Germanies and various Axis coun­ Israel is also in accord with many cerned with the functioning of the tries with which peace treaties have factors related to the principle of Nazi apparatus headed by Eich­ already been signed, and likewise territoriality, which enjoins trial at mann. several new states have pledged the place where the crime was com­ The allegation that the notion themselves in this context, by ex­ mitted. of "crimes against the Jewish plicit legislation, for moral, politi­ As to the punishment of war people" is not acceptable is also cal, legal, and other reasons. criminals, it has been accepted from founded on misapprehensiUl. Since such legislation pertains to times immemorial that states which The definition of such a crime is

7 in complete accord with that of the the criminal and by holding the ganization by the Nuremberg Tri­ crime of "genocide." This definition trial far from the victims of the bunal responsible for these crimes; includes the category "Jew", for ex­ crimes in question. No qualified he is accused of acts which are termination was directed against body in the world has tried to deny crimes against humanity and a spe­ the Jews from the biological point the competence of tribunals in Po­ cial form of this crime, which the of view. It does not contradict the land, France, the Soviet Union etc., Israel law designates as "crimes fact that the definition refers to an which brought to trial Nazi crim­ against the Jewish people". act unacceptable to humanity as a inals against their own peoples, and, The judicial bodies of Israel have whole from the moral point of in the same manner, it is not pos­ not only the right but also the duty view, as well as from that of the sible to deny such competence to to try him in accordance with the feeling and conception of justice in Israeli courts. law concerning these crimes, a law every civilised society; the defini­ In international law and in the which is also in exact accord with tion including the category "Jew" domestic law of many states, as well international law, binding on all is not contrary to the duty and the as in various agreements, including countries. There is no doubt that necessity of protecting the life and the Reparations Agreement signed they will use their authority and honour of man as such-every between Israel and West Germany will fulfill their obligation not only man, each member of the civilian in Luxemburg in 1952, it was de­ in the name of the Jewish people population; it is in accordance with clared that "unimaginable crimes and of the sovereign State of that the Nuremberg Charter and the le­ were committed by the Nazis against people, but also in the name of gislation of all the states which put the Jewish people ..." other nations, of the family of na­ on trial persons accused of crimes Eichmann headed a gestapo-body tions, of human conscience and against humanity, actually perpet­ which was declared a criminal or- justice. rated as crimes against their na­ tions, as for example the crimes against the Polish nation, conceived 1,000 JEWS SENT TO AUSCHWITZ FOR AN ATTACK also as a particular form of crimes ON WEHRMACHT SOLDIERS against humanity and genocide. The indictment against Eich­ mann includes, of course, crimes against humanity, comprising those which were directed against definite racial groups, as for example Poles and Gypsies, and naturally, against the Jewish people. As to the demand to bring Eich­ mann before an International Tri­ bunal, it seems also completely un­ realistic, since no such tribunal ex­ ists today, and there is no possibility of resurrecting or creating a new one in the near future. This demand is, incidentally, not supported by any state, and no state in the world accepts or could accept the allega­ tion that its legal institutions are not empowered to try persons ac­ cused of acts against its people be­ cause the atmosphere in their coun­ tries and the attitude of the popula­ tion toward the criminals is not free from hate. The discovery of atro­ cious crimes is generally accom­ panied in every country by an at­ mosphere which is far from being friendly or neutral towards the criminals. The effort to give a fair trial is not expressed by a neutral attitude, a sort of indifference of the population towards the criminals, but by separating the judicial body from the legislative and the execu­ tive, and by its reliance only on existing laws, i.e. concerning the rights of the accused. Just as the demand that a dele­ gate of the criminals be included in the judicial apparatus in order to ensure its fairness must seem ab­ surd-no less absurd, would it be to assert that a fair trial can only be ensured by judges who are not members of the nation wronged by

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