U.S. Court Judgments Cited by Prosecution to Justify Eichmann Trial
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U.S. Court Judgments Cited by Prosecution to Justify Eichmann Trial

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Judgments by United States courts, including one issued by the U.S. Supreme Court, were cited today in court at the trial of Adolf Eichmann by Attorney General Gideon Hausner in his rebuttal of the contention of Eichmann’s lawyer that Israel has no right to try the Gestapo colonel for his role in annihilating 6,000,000 Jews during the Nazi regime.

Hammering away through the second day of the trial at the arguments advanced yesterday by Dr. Robert Servatius, chief defense counsel of the Nazi war criminal who questioned the legality of the trial on Israeli soil, Attorney General Hausner indicated that he planned a day and a half of rebuttal in his effort to settle that issue once and for all.

It was obvious today that the court would not rule before Monday on the crucial question of its competence to try Eichmann. This became evident when Zvi Tahor and Yehuda Shimoni, the El Al personnel alleged to have transported Eichmann from Buenos Aires, where he was seized last May, appeared in court as witnesses called by Dr. Servatius, for interrogation. The two men were told they would not be required until Monday.

Dr. Servatius, in his opening statement yesterday, challenged Israel’s right to try Eichmann before the defendant could enter a plea to the 15-count indictment read by Justice Moshe Landau. The West German attorney contended that Eichmann had been brought to Israel illegally, that Israel did not exist when the crimes were committed, that the law under which Eichmann had been indicted was ex post facto in that it was enacted after the period when the Nazi crimes were committed, and that the crimes were not committed on Israeli territory.

Resuming his battle of legal citations, the chief prosecutor asserted this morning that Israel’s law for the punishment of Nazis and Nazi collaborators was compatible with the law of nations in giving the fullest possible expression for the execution of Justice. Denying the defense argument that the law was retroactive, he cited many international legal authorities to support the contention that wanton killing of non-combatants as well as murder were not shielded by the ex post facto nature of a law against such killings.

He added that even if it ware admitted for the sake of argument that the law was retroactive, the fact remained that this was an Israel law and the court was therefore bound by it and could not and need not inquire into the defense contention to the contrary.


The Attorney General attacked the defense contention that the Israeli law was not in the same category as the London agreement of 1945 signed by the United States, France, the Soviet Union and Britain which was the basis for the Nuremberg trials of the major Nazi leaders. He rejected the defense argument that the London statute was exceptional, arguing that the 1945 agreement merely reestablished the principles accepted by all civilized nations against murder, tyranny and rapine–even if “under orders of the Fuehrer,” a noun for which he used German for the first time in his presentation, referring to Hitler.

The Attorney General quoted the Universal Human Rights Declaration to show that all-signatories–“humanity itself”–had pledged them selves to punish individuals on the principle of personal responsibility for national and international crimes.

He emphasized that Israel was not the only country to enact an anti-war crimes law, listing about ten such countries in which such laws are all retroactive. He argued that in any case, it was not the business of the court to enter into the merits of the law and he cited a British precedent that “a modern judge never listens to the argument that a law is invalid because it is immoral or goes beyond the limits of Parliamentary authority.” Mr. Hausner noted that since the law was enacted in 1954, many persons, including Jews, had been sentenced under it in Israel.

The Attorney General quoted extensively from judgments of federal district courts and the Supreme Court of the United States to make two points, that it was irrelevant from the substantive point of view how a defendant is brought before the jurisdiction of a court and whether he is brought by private persons or officials.

Rebutting the defense argument that Eichmann was brought to Israel illegally, the Attorney General cited cases from 1886 to 1958, including the famous seizure of American financier Samuel Insull aboard a Greek vessel in the Bosphorus, his detention in a Turkish jail and his subsequent transfer on an American ship to the United States for trial in a Chicago court.


He said that the court trying Eichmann had no authority to inquire into the alleged abduction, its only interest being that the defendant was within its jurisdiction. He noted, nevertheless, that Israel had concluded an agreement with Argentina under which both governments agreed to regard the Eichmann capture as a closed issue. He submitted the agreement as evidence that there was no international dispute on this point.

The Attorney General pointed out that even if this agreement had not been reached in a desire of both countries to comply with the spirit of a United Nations Security Council hearing on the seizure, the Jerusalem court had every right to try Eichmann since the manner of his appearance before the court was not relevant. He submitted for the record a copy of the agreement reached at Buenos Aires by Dr. Shabtai Rosenne, the legal advisor to the Israel Foreign Ministry, with Argentina.

Other cases cited by the Attorney General in rebutting the issue of the nature of Eichmann’s transport to Israel were those of several Americans who collaborated with the Nazis and who were seized by the United States army in Germany and charged before American courts. The highest legal authorities, he said, had found in all cases that the matter of how they were brought before courts for trial was irrelevant.

He concluded this phase of his rebuttal with a formal request to the court to declare its competence without calling as witnesses two El Al personnel. He said their testimony would be irrelevant both to the substance of the case against Eichmann and to the question of the court’s competence.


Dealing with the issue of Israel’s non-existence at the time of the Nazi genocide, and the question of extra-territorialism, the Attorney General said that in an age of jets and rockets, “we cannot stick to the principles of territorial competence only.” He cited the case of Lord Haw Haw, the British fascist William Joyce, whose broadcasts from Nazi Germany were ruled as incriminating him even though it was only his voice which reached Britain via radio.

The Attorney General also dealt with two non-legal phases of the defense presentation. These were Dr. Servatius’ statement that Israel was receiving reparations from West Germany and that Eichmann was only a cog in the Nazi machinery. He said that the reparations were being paid not to pardon, or atone or to make Israel forget. “For such crimes there is no pardon, there can be no forgetting,” he told the court. “It is possible to hope-only that the sons will be different from the fathers. The sons will not be called to judgment for the actions of their fathers.”

He charged that Eichmann “planned, organized and implemented the extermination of the Jews.” He also said that the Jewish people had a long memory which remembers what was probably “the first attempt at genocide,” that of Haman, the Persian Prime Minister 2,000 years ago. He said the Jewish people would never forget the man who almost succeeded in such a genocidal attempt against the Jewish people.

Attacking the defense contention that Israel could not try Eichmann because the state did not exist when the Nazis were torturing and killing Jews, the Attorney General read various court decisions, including the findings of international conferences and tribunals dealing with war and postwar crimes to prove his argument. He also asserted that “a State of Israel in Foundation” existed not only in Palestine but wherever Jews were awaiting deliverance from their persecutors.

He quoted from the testimony of Israel’s first President, Dr. Chaim Weizmann, before the Peel Royal Palestine Commission before World War II when Dr. Weizmann argued that a Jewish State was needed for the 6,000,000 European Jews suffering persecution. The Attorney General added: “Those six millions are no more.”

He also submitted in evidence the proceedings of the Human Rights Commission of the United Nations General Assembly on a draft covenant on civil and political rights which recognizes post facto laws when applicable to “acts which are criminal according to the general principles of law recognized by the community of nations regardless of when committed.”


The Attorney General disclosed that Eichmann was seized two days after he could, under Argentine law, have come out in the open and declared his identity without fear of prosecution. Under Argentine law, 15 years is the period of prosecution. World War II ended May 9, 1945 and Eichmann was caught May 11 “–two days after expiration of the 15-year limitation.”

He ridiculed widespread suggestions that Eichmann should be tried by an international tribunal. He said the International Court of Justice at The Hague handles international disputes and the war crimes tribunals of Nuranberg and Tokyo were no longer in existence. “Should Israel have requested the United Nations to establish a special court to try Eichmann?” he asked. “Does anyone consider this a practical suggestion in view of the cold war?”

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