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
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.
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
an act constituting a crime against humanity
or an act constituting a
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).
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:
- Can Israel try Eichmann, although he was forcibly abducted from
- Can Israel try Eichmann for acts committed before May 8, 1945, under a
statute enacted in 1950?
- 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.
The legality of Eichmann's captureEichmann 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.
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.
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
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.
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.
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
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.
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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