PART V PART VI STATE RESPONSIBILITY THE INDIVIDUAL IN INTERNATIONAL LAW A—NATURE AND KINDS OF STATE RESPONSIBILITY A—IN GENERAL with Contractual VII.—For Wrongs Unconnected I.—Position of Individuals in International Law. Obligations Human Rights and Freedoms Organs and Officials [SSC also PART I: IV; and PART VIII: B, VII.) j.—Acts and Omissions of State law—In general—Position of— of—For wrongs uncon- The individual in international responsibility—Nature and kinds genocide, and crimes against State of State officials— Responsibility for war crimes, nected with contractual obligations—Acts humanity—Effect upon individual of irregular apprehension— Abduction_Reparation_Nature of. Whether individual direct beneficiary of International law—Right occurred and of national State to (Attorney-General of Israel v. Eichmann). of State in which apprehension See p. 5 waive claim arising therefrom—Relevance of extradition proce dure—Human rights and freedoms—European Conventior for Protection of—Right to freedom and personal security—Applica tion of Convention by courts of State not a party. ATTORNEY-GENERAL OF THE GOVERNMENT OF ISRAEL V. ADOLF EICHMANN.’ Israel, District Court of Jerusalem. December 12, 1961. (Landau J., President; Halevi and Raveh JJ.) Supreme Court (sitting as a Court of Criminal Appeal). May 29, 1962. (Olshan J., President; Agranat J., Deputy President; Silberg, Sussman and Witkon JJ.) SuMMARY.-—On May II, 1960, Adolf Eichrnann was abducted from Buenos Aires, Argentina, where he had been living since 1950 under the assumed name of Ricardo Kiement. After signing a letter purporting to consent to trial in Israel, he was removed to Israel by members of the Israel Secret Service. On May 23, the Prime Minister of Israel announced that Eichmann had been found and would be put on trial for his part in the “Final Solution “. The Government of Argentina protested that the capture was a violation of Argentine territorial sovereignty, for which it alleged that the State of Israel The report printed below comprises a summary of the case and the full English Court of texts of the judgments of the District Court of Jerusalem and the Supreme Israel. The summary has been prepared by Miss A. Munkmam. The English texts of the full judgments are translations prepared in the Ministry of Justice of Israel anrl revised by Mr. P. Elman, of that Ministry. The references to the original law reports in 1-lebrew arc given at pp. 276 and 342, below. 5 6 TilE INDIVIDUAL IN INTERNATIONAL LAW EICHMANN CASE: SUMMARY 7 was responsible by reason of its express approval of the action, and between the two countries will be advanced, resolve to regard as closed asked for Eichmann’s return and the punishment of those responsible the incident which arose out of the action taken by citizens of Israel, which infringed the for the violation of Argentine law. In a Note of June 3, the Govern fundamental rights of the State of Argentina.” ment of Israel attributed the capture to a “volunteer group” and The pre-trial investigation lasted almost a year. The trial of expressed its regret if it had “violated Argentine law and interfered Eichmann by the District Court of Jerusalem began on April xi, with matters within the sovereignty of Argentina “. Similar expres 1961, and continued until August 14. Eichmann was charged with sions of regret, and references also motives the to the lofty and offences under the Nazi and Nazi Collaborators (Punishment) Law, historical and ethical factors involved, were made in a personal 5710/1950, Section i (a) of which provides: lettt:r from Mr. Ben Gurion, the Israel Prime Minister, to Mr. “A person who has Frondizi, President of Argentina. committed one of the following offences— The dispute, however, failed to be resolved through normal “i. done, during the period of the Nazi régime, in an enemy country, an act constituting diplomatic channels, and Argentina presented a complaint to the a crime against the Jewish people; “2. done, during the period of the Security Council of the United Nations Nazi régime, in an enemy requesting an urgent meeting country, an act constituting a crime against humanity; to consider the violation of its sovereign rights.1 At the meeting of “3. done, during the period of the Second World War, in an the Security Council held on June 22, 1960, the Argentine representa enemy country, an act constituting a war crime; tive emphasized that Argentina had protested against a violation is liable to the death penalty.” of its sovereignty by the unlawful exercise of foreign authority Section i (b) defines within its territory—to which it was irrelevant that Eichmann had these offences as follows: been living there under an assumed name and in breach of its “‘Crime against the Jewish people’ means any of the following national laws—rather than against a violation of the general rules acts, committed with intent to destroy the Jewish people in whole or in part: governing territorial asylum or political refugees. He submitted a draft resolution (subsequently approved—with minor amendments— (i) killing Jews; “(ii) causing serious by eight votes to nil, with two abstentions) which, while disclaiming bodily or mental harm to Jews; “(iii) placing Jews in living conditions calculated to bring about any condonation of the crimes of which Eichmann was accused, their physical destruction; declared that “acts such as that under consideration, which affect (iv) imposing measures intended to prevent births among Jews. the sovereignty of a Member State and therefore cause international friction, may, if repeated, endanger international peace and security”, “‘Crime against humanity’ means any of the following acts: and requested the Government of Israel “to make appropriate murder, extermination, enslavement, starvation or deportation and reparation in accordance with the Charter of the United Nations and other inhumane acts committed against any civilian population, and the rules of international law “. The Argentine representative persecution on national, racial, religious or political grounds. declined to specify what form of reparation would be” appropriate “, “‘War crime’ means any of the following acts: murder, ill- and it appeared to be the view of most representatives that the treatment or deportation to forced labour or for any other purpose, of resolution itself and the expressions of regret by the Government of civilian population of or in occupied territory; murder or ill-treatment Israel constituted, in the special circumstances, “appropriate of prisoners of war or persons on the seas; killing of hostages; plunder of public or private property; wanton destruction of cities, towns reparation “. In the resolution as finally adopted, the hope was or villages; and devastation not expressed that “the traditionally friendly relations between Argen justified by military necessity.” Section (a) provides: tina and Israel will be advanced “. (The full text of the resolution 3 appears in paragraph 40 of the judgment of the District Court.2) “A person who, during the period of the Nazi régime, in an enemy The dispute was finally closed by a joint communiqué issued on country, was a member of, or held any post or exercised any function in, August 3, 1960, by the Argentine and Israel Governments : an enemy organization, is liable to imprisonment for a term not exceeding seven years.” “The Governments of Argentina and Israel, animated by a desire to Section give effect to the resolution of the Security Council of June 23, 1960, 3 (b) defines “enemy organization” as in far as the hope was so expressed that the traditionally friendiy relations “a body of persons which, under Article 9 of the Charter of the International Military Tribunal annexed to the Four-Power Security Council, Agree Official Records, T5th year, Supplement, April, May and June ment of August 8, 1945, on the trial of the major war criminals, has xg6o, p. 27. been declared, See p. 58, below. by a judgment of that Tribunal, to be a criminal See p. 59, below. organization.” - 8 THE INDIVIDUAL IN INTERNATIONAL LAW EICHMANN CASE: SUMMARY 9 Section 8 excludes the defence of “ superior orders “—otherwise such as sudden mass arrests and torture in camps like Dachau and’ available under Section i (b) of the Israel Criminal Code Ordinance, Buchenwald; the organization of the mass persecution of 20,000 1936, where an act is done “ in obedience to the order of a competent Jews from Germany and Austria on the night of November 9—b, authority which he [the accused] is bound by law to obey, unless the 1938 (the “Crystal Night”); the organization of the social and order is manifestly unlawful “. Section ii, however, permits the plea economic boycott of Jews and their designation as a sub-human to be taken into account in determining punishment (though subject racial group; and the application of the “Nuremberg Laws “. to a minimum of 10 years’ imprisonment for offences under Section i). The fourth Count detailed the devising by the accused, as head of the Department for Jewish Affairs of the Gestapo in Berlin, of The indictment contained 15 Counts. Counts i to related to 4 measures to prevent childbearing among Jews crimes against the Jewish people. The first Count alleged that in Germany and occupied territories, including orders for compulsory Eichmann caused the killing of millions of Jews in his capacity as abortion in Theresienstadt concentration camp head of the Gestapo Department and the ghetto of Kovno, and (numbered successively IV D4, devising measures IV B4, IV A4) in for the sterilization of the offspring of mixed Berlin responsible for the physical extermination marriages. of the Jews—the “final solution of the Jewish problem “—the Counts to related duties of which were to locate, deport and exterminate the Jews of 5 7 to crimes against humanity. The fifth Count alleged the murder, Germany and of other Axis countries and occupied areas, in exter extermination, enslavement, starvation and deportation of civilian mination camps (including Auschwitz, Chelmno, Belzec, Sobibor, Jewish populations in Germany, the Axis countries and the occupied Treblinka, and Majdanek).