CASE STUDY

The State of Israel v. Adolf Eichmann, Case no.

40/61,11December 1961

Introduction

May 23rd 1960 was the memorable day for the Jewish people, for

the fact that David Ben-Gurion Prime Minister of Israel

enunciated the capture of Adolf Eichmann and pronounce trial

against him. He was residing by a fake identity in Argentina and

was captured to Israel in spite of the acquaintance and

permission of the administration of Argentina. Adolf Eichmann was

known to have been the adviser of Hitler on the “Jewish problems”

and was in charge of homicide of the Jews of Hungary, Poland,

Austria, Czechoslovakia, and Germany. He was not formally charge

as accused person throughout the Nuremberg trial1 but was allude as

most accountable for Nazi series of killing the Jews. In Israel

under the Nazi and Nazi Collaborators (Punishment) Law 1950, Eichmann was

found guilty with “offense against the Jewish people” and “Crimes against

Humanity.” Eichmann court is considered to be noteworthy

precedents in the development of universal jurisdiction. Eichmann

trial established the crime of genocide against the Jewish people

clearly as a crime accepted in international law. In this trial

jurisprudential issue was raised as to whether legal principles

and measures may be negotiated in an attempt to put the deserved1 IMT 1946 (1947) 41 AJIL 172

criminal for conviction.2This paper will try to examine the

legitimacy of this trial considering Israeli legislation and

International law. It will also try to justify how this case

raised the issue pertaining to universal jurisdiction of crime of

genocide. In addition, it will talk about the pitfalls in the

concept of universal jurisdiction. In this respect, it is hope to

prove the relationship between Eichmann trial and the concept of

universal jurisdiction.

Cause of Action

Adolf Eichmann was found guilty under Nazi and Nazi Collaborators

(Punishment) law of August I, 1950. Under Sec.1 of this law, a person is

liable to death penalty if (…) any person who has “done, during

the period of the Nazi command, in a rival state, any act

amounting to crime against the Jewish people” or an “act

constituting a crime against humanity” or “an act constituting

war crime” (…)3. Sec.1 (b) of Nazi and Nazi Collaborators

(Punishment) law of August 1950 gives the definition of the above

three crimes. Under Sec 15(b) of this law, court may possibly

depart from applying rules of evidence if it is satisfied that it

2 Lippman,Matthew,“Genocide: The Trial of Adolf Eichmann and the Quest forGlobal Justice”,B.H.R.L.Rev.45(2002)

3 Nazis and Nazi Collaborators (Punishment) Law, 5710-1950

will bring forward the truth and fair trial.4 In Hoingmann case5.,

the court said that 1950 law is a retroactive and

extraterritorial with an aim to provide punishment to the

offender event though not within the criminal law of Israel but

in connection with the Nazi rule and its atrocities, as a result

the Nazi and Nazi Collaborators (Punishment) Law is retroactive

and extraterritorial in nature. Because of this fact, Eichmann

was abducted from Argentina for the trial under this Law.

Issues

The key issues in Eichmann case presented were:

(1)\ Did Israel has the jurisdiction to try Eichmann, even though

he was by force kidnapped from Argentina.

(2) Was Israel in violation with the principle of nulla poena

sine lege?

(3) What is Legality of Israel in trying Eichmann who was not

the National of Israel?

4 Ibid.5 Honigmann v. Attorney General, [1951] ILR. 542, 543 (District Court Tel Aviv1953).

Legitimacy under Israel Domestic law

There is no constitution of Israel together with a bill of

rights, basic Laws are taking into consideration for the

constitution of Israel.6At present, no judicial review is

applicable in Israel, but 1950 law is obligatory upon Israel

courts and is appropriate in trials presented in courts. However,

the question is that, did Eichmann case was properly held before

the eye of law? Does Israel have the jurisdiction to try Eichmann

case by violating Laws of foreign country? The law of Israel is

deriving from three sources: Ottoman legislation, which continued

until the period of Ottoman Empire, British legislation was

introduced in the mandate period, and Israeli law while

1948.7Merely the last two bases came into effect in the Eichmann

case. He was being put on trial under Nazi and Nazi Collaborators

(Punishment) Law 1950, some common rules were referred from the 1936

Penal code of Israel. The courts of law in Israel have the same

authority as the court of justice in England. In Afouneh v.

Attorney-General, 8 it was held in one of the case in English

courts that the courts have no say to go into the question about

the circumstances in which the convict could possibly was

brought, once he has been captivated in the lawful custody in the6 Gavison, Ruth, “Legislatures and the quest for a constitution: the caseof Israel Review of Constitutional Studies”,2006, Vol.11(2), p.30(56)

7 Acquaviva, Guido “Subjects of international law: a power-based analysis”VJTL, 2005, Vol.38(2), p.345(52)

8 Afouneh v. Attorney-General, [941-1942] Annual Digest and Reports of PILCases 327, 328,

country. The theory of male captus, bene detentus accepted by 20

states of the US also accepted in US Supreme Court in number of

cases.9 In Frisbee v. Collins10 , the Supreme Court of US held that the due

process of law is established when the convict is brought before the court and fair trial

is given to him in spite of the fact that he has been brought against his will and cannot

abscond justice on this ground. Since in Israel, the law was derived

from the English law system, thus it was highly credible in

Israel. Moreover, the court of Israel was following the principle

of male captus, bene detentus. Thus, submitting that under Nazi and Nazi

collaborators (Punishment) 1950 the district court of Jerusalem had the

jurisdiction to try the case of Eichmann.

Legitimacy in International law

Under the concept of International law the Independent state’s

territorial integrity is considered sacrosanct. State, performing

in such a manner that its dealings attributes to maintain

supremacy in another’s province without the authority of the

latter, it will amounts to be an international tort.11 In this

case Adolf Eichmann was also shifted forcefully from Argentina by

the mediators of Israel as a result it also amounted to

international tort. But if the case would have been that Eichmann

would have been kidnapped vehemently by secret persons acting in

9 Baade, Hans W, “ Eichmann Trial: Some Legal Aspects” 961 DLJ 400 (1961)

10[1952] 342 U.S. 519, 522

11 Nanda, Ved P. “Self-determination and secession under International law”DJIL and Policy, 2001, p.305 (22)

a good faith without the authority of Israeli government then it

would not have occupied international infringement on the first

place, it would only have been the infringement of domestic law

of Argentina. Dr. Amadeo representative of Argentina had the

opposite view, which was corrected by Mrs. Meir Foreign Minister

of Israel that this view is baseless in international law.12

Under customary International Law State committing international

tort is liable to make damages against whom the tort has been

committed.13 In international law, rules relating to providing

compensation are ambiguous. It is a well-known principle of every

state that the fugitive who has been forcefully kidnapped by the

officials of other states without the permission and knowledge of

the former state, the former state can command the latter state

to revert the abducted person and can initiate criminal or

disciplinary actions against the agents.14It means that until and

unless there was a valid reason Israel could not have made

Eichmann captive under its custody from Argentina. Moreover,

Argentina in the end of World War II had declared its compliance

to capitulate any fugitive of war crime seeking asylum in its

territory to surrender for trial before court. Thus, Argentina

was under obligation to extradite Eichmann to Israel because of

12 Birn, Ruth Bettina “Fifty years after a critical look at the Eichmanntrial.” Western Law Journal of International law13 Martindale-Hubbell International Law Digest Volume 127, Part 1995; Volume135, Part 2003

14 Hirsch, Big.M, “Bill Haywood's revenge the original intent of theexclusionary rule” St. TLR,2009, Vol.22 (1), p.35 (52)

the reason that Argentina in its principles had made it clear

that war criminals should be punished and its own legislation was

debarring trying Eichmann for the acts committed before May 1945.

Now the question is why Israel was selected.

The reason behind this was that Israel was the only state having

legislation to try crimes committed in World War II.15 Therefore,

the trial of Eichmann in Israel was in accordance with

Argentina’s constitution.16In spite of factual circumstances, the

government of Argentina thought that damages should be sorted out

by negotiating with Israel according to the terms of the Charter

of United Nation and international law. After a lot of

discussion, the Security Council came up with a decision that

Argentina should not prevent Israel to capitulate Eichmann back

to Argentina. Thus, it is submitted that Eichmann trial did not

violate the legality to try his case in Israel. In addition, at

the end Argentina itself rejected its claim of returning back of

Eichmann.

Did Israel Violated the principle of nulla poena sine lege

The principle Nulla poena sine lege does not the constrain sovereignty

it is a universal rule of integrity, although several states have

adopted this principle but there are number of exceptions to this

15 Baade, Hans W, “Eichmann Trial Some Legal Aspects” 961 DLJ. 400(1961),p.40716 Bassiouni, M. Cherif ; Hanna, Michael Wahid Ceding the high ground: theIraqi High Criminal Court statute and the trial of Saddam Hussein Case WRJL,2007, Vol.39(1-2), p.21(77) 

principle17. States having judge made law is necessarily

retroactive in nature.18 In addition, where the criminal law is

codified or where there is doubt in the previous judicial

decision are retroactive. After World War II, various states gave

its consent to retroactive effect of law dealing with war

criminals.19 The charges against Eichmann were Crime against

peace, War crime, Crime against humanity, which was defined in

1950 law derived from the Charter of International Military

Tribunal. Number of persons were executed under the latter Act

for the same offence as committed by Eichmann. The defense

council in Nuremberg trial20 pleaded that the Act applied was

retroactive in nature thus should not be applied but the court

rejected the plea and held that crimes against humanity are

liable to be punished even though committed before coming of the

Act. Moreover, Art.7(2) of the European Convention on Human Rights and

Fundamental, provide that the(…) prohibition of retroactive penal

legislation shall not discrimination the trial and sentence of

any person for any act committed at the time when it was

executed, was illegal according to the universal doctrine of law

17  Dana, Shahram, “Beyond retroactivity to realizing justice, a theory onthe principle of legality in international criminal law sentencing” JCLC,2009, Vol.99 (4), p.857 (71)18  Machteld.B,“Genocide, Crimes against Humanity, War Crimes: Nullum CrimenSine Lege and the subject matter jurisdiction of international criminalcourt”, Intersentia nv, 2002 part 3, p21719  Guénaël Mettraux, “Perspectives on the Nuremberg Trial” (Oxford UniversityPress), 2008, p28620 Nuremberg IMT 1946 (1947) 41 AJIL 172

recognized by "civilized country" (…)21. Further, the regional

court in instant case held that in absence of International court

of justice, it is valid for each state to prosecute crime against

humanity, and international law does not restrict or prohibit

legality of the state to try such cases. On contrary

International law gives the authority that crime against

international law is universal.22It is, thus submitted that

Israel did not violate the principle of Nulla poena sine lege.

Legality of Israel in trying Eichmann who is not the National of

Israel

In Lotus case23, it was held that (…) it does not, however, follow that

international law forbids a State from exercising jurisdiction in its own territory, in

respect of any case which relates to acts which have taken place abroad, and in which it

cannot rely on some liberal regulation of international law (…)24. Based on

nationality criminal jurisdiction is not different from public

international law. Criminal jurisdiction is also based on the

Laissez-faire rule of international law i.e. (…) the rule that pirates

may and shall be punished wherever detained; or treaty-based rules for the trial of

counterfeiting; white and black slave traffic; traffic in narcotic drugs, and in

21 http://www.echr.coe.int/Documents/Convention_ENG.pdf22 Antonio Cassese, “The Oxford Companion to International Criminal Justice”,(Oxford University Press), 1 Jan 2009 p.456 23 France v. Turkey PCIJ Judgment No. 97 September 1927

24 http://www.worldcourts.com/pcij/eng/decisions/1927.09.07_lotus.htm

pornographic literature, etc. (…)25. In Eichmann case, the crime was not

executed in Israel and was not executed by the Israeli national.

However, under laissez-faire rule of public international law

Israel was legally correct to try the case. In addition, Art.6 of

the Convention on the Prevention and Punishment of Crime of genocide 1948 also

made it clear that mass killing of people will amount to genocide

and the accused will have to face trial by the tribunal of the

state or by international tribunal having authority to try the

offence. The genocide convention was also adopted by Israel in

1950 providing that any person committing crime outside the

territory of Israel is also held liable under this act.Art.1 of

the convention of genocide further strengthens the legality of

Israel to try Eichmann case even if the act is committed

earlier.

Effect of Eichmann Trial on the concept of Universal Jurisdiction

for crimes of genocide in International law

An idea of universal jurisdiction started back in 1625 in the

writings of Grotius and in United States v Smith26. The principle of

universal jurisdiction is founded on the notion that specific

crimes such as crime against humanity, war crimes, genocide, and

torture are crime against the entire international community. The

idea of universal jurisdiction gained momentum after World War II

by the formation of International Military Tribunal (IMT)27. Eichmann

25 Baade, Hans W, Eichmann Trial Some Legal Aspects 961 DLJ. 400 (1961),p41726 United States v. Smith, 18 US (5 Weat.) 153 at 161–2 (1820)27 Under the London Agreement of 8 August 1945, (Article 1) provided for theauthority of the court

trial is consider being a vital step in the formation of

international human rights and resolves the Jurisprudential issue

in trying the criminal case.28This judgment affirmed universal

jurisdiction over genocide and has a prominent effect influencing

20th century. It was the first worldwide description, which

created genocide of Jews evident to the whole world and brought

justice to 6million Jews massacred in Nazi criminal acts.

Eichmann trial made an interesting observation that the

jurisdiction in criminal trial is not limited to territory of the

country.29In Eichmann case, individual criminal responsibility

was further; strengthen after Nuremberg trial. It led the beginning

of the notion of Universal Jurisdiction permitting state to try

the convict in criminal offence irrespective of its nationality

and site of crime. It explained the notion that certain criminal

offences are so grave in nature that states are bound to bring

the proceedings against the executor irrespective of its

nationality or location. The Geneva Convention of 1949 also made

universal jurisdiction an accepted principle. Eichmann case

brought into limelight that sovereignty could be restricted for

egregious criminal offence. After Eichmann trial, the issue of

universal jurisdiction was determined and its sound effects can

for crimes having no exact geographical location and (Article 4) for theauthority of national courtsover other war criminals28 Lippman, Matthew, “Genocide: The Trial of Adolf Eichmann and the Quest forGlobal Justice”,8 B.H.R.L.Rev.45(2002)29 Luc .R, Jan .W, Cedric .R , “International Prosecutors” (Oxford UniversityPress), 31 May 2012,p.82

be viewed in 1985, in the Demanjuk case30. The foundation of the ad-

hoc tribunal for former Yugoslavia (ICTY) and Rwanda (ICTR) in 1993 and 1994

further cites the development of this principle. In addition, the

special court for Republic of Sierra Leone and Extraordinary Chambers

in the Courts for Cambodia also extended the principle of universal

jurisdiction. In 1999, Pinochet case31 and more recently in 2001 in

Butare Foure case32, principle of universal jurisdiction was taken

from Eichmann case and it was held that universal jurisdiction

principle can be applied to try cases of grave criminal nature.

Thus, international law permits states to allow cases

irrespective of nationality sometimes also called permissive

universal jurisdiction, which is now part of customary law33. In

Gaspard Ruhumuriza case the judgment given by the court was that,

rule of aut dedere aut judicare shall be applicable to prosecute the

fugitive committing crime of egregious criminal nature and state

shall not hide such person irrespective of its jurisdiction,

instead it should apply universal jurisdiction over such person

alleged to have committed serious criminal offence, and to

extradite such criminal to a state or to an international

criminal court who is competent and primed to do so34. The

Eichmann was the first trial in which United Nation granted

affirmation of universal jurisdiction. It gave birth to the30 Demanjuk v. Petrovsky, US Court of Appeal, 6th Cir. 31.10.1985, ILR 79,546.31 R v Bow Street Metropolitan Stipendiary Magistrate, Ex Parte PinochetUgarte 24 March 1999, [1999] 2 WLR 827 (HL)32. Butare Four Case J Int Criminal Justice (2003) 1 (2): 428-43633 Ralph Henham, Mark Findlay, “ Exploring the Boundaries of InternationalCriminal Justice”(Ashgate Publishing), Ltd., 28 Feb 2013,p15134 www.amnesty.org/fr/library/asset/IOR53/004/.../ior530042011en.pdf

modern concept of universal jurisdiction. Eichmann trial led to

the foundation of three types of jurisdiction (…) passive

personality jurisdiction, protective jurisdiction and universal

jurisdiction (…).35 However, there is lot of skepticism about

Eichmann case being mere trial for political purpose36 and other

considers it as a constricted view regarding universal

jurisdiction. Number of country showed resentment toward the

capture of Eichmann, Washington newspaper in 1960 posted that the

extradition of Eichmann reflected anarchy and were against the

trial37; New York Times in the same year posted that law must

give shelter to most depraved criminals also.In spite of lot of

media attention it attracted vast criticism and debate. A well

know critique Hannah Arendt argued that Israel court committed

legal prejudice against Eichmann in achieving justice for

Holocaust victims and survivors.38 The critics also pointed that

there was infringement of international law by abducting

Eichmann.39 Art 2(3)(e) and Art 6(1) of ICTR is unclear and

creates confusion regarding one who aids the crime and one who35  Mitsue Inazumi, “Universal Jurisdiction in Modern International Law:Expansion of National jurisdiction for procecuting serious crimes underinternational law” 2004

36 Leebaw, “Judging State-Sponsored Violence, Imagining Political Change”(Cambridge University Press),P150

37 Drumbl, Mark A. “From Nuremberg to The Hague: The Future of InternationalCriminal Justice”. MLR, 2005, Vol.103 (6), p.1295 (34)38 See Hannah Arendt Eichmann in Jerusalem Penguin UK, 7 Dec 200639 J. L. Holzgrefe, Robert O. Keohane, “Humanitarian Intervention: Ethical,Legal and Political Dilemmas” (Cambridge University Press), 13 Feb 2003 –P.200

abets the crime committing genocide. The confusion was later

settle in the Landmark judgment in Prosecutor v. Akayesu40 but was

ruling is rejected in Prosecutor v Karemara41.However, in recent years

there have been number of cases utilizing the principle of

universal jurisdiction such as national courts of Africa, North

America, Europe, and Latin America. This increase in the number of cases

accounts for growing importance to prosecute the accused

committing crime against humanity. Universal jurisdiction is a

mechanism of providing justice to victims of international

offences. It restrains the freedom of exemption from punishment.

Increase in practice of this principle is a testimony stating

that principal of universal jurisdiction is not just a legal

presumption. In order to make sure universal jurisdiction is

successfully applied two things are to be taken into

consideration, which includes political will and international

assistance. The expansion of the concept of universal

jurisdiction can be seen in the recent proceedings against Hissene

Habre42 the former ruler of Senegal (country in West Africa) and

extradition of Alberto Fujimori former Peruvian president. Recently

the case against former secretary of defense Donald Rumsfeld43 the

U.S. official was held accountable for committing torture, crime

against humanity, and war crime under universal jurisdiction

principle. The principle of universal jurisdiction facilitate40 Case No. ICTR-96-4T, 485(2,September)41 Case No. ICTR-98-44-T,7(18 .May,2006)42 (Belgium v. Senegal)ICJ (November 3, 2009). BJIL, Vol. 38, No. 37-40,2011.

43 Hamdi v. Rumsfeld, 542 U.S. 507 (2004)

that certain offences are so grave in nature that the person

responsible for committing such crime should not get away from

justice by invoking the principle of immunity or seeking

protection under international border. Each Nation is concerned

in bringing the genocide criminal to trail; no state is concerned

in giving shelter to the fugitive. No state is bound to handover

the criminal to some different legal authority for trial or

punishment. However, the states having no power to try non-

citizen, the extradition principle will be difficult to use

because of length and complexity. The only solution to this

problem is to authorize other state to try the proceedings

against the convict.

THE Rise and fall

However, the question arises, that how far this principle is been

utilized to put the criminals behind the bar? There has been

number of instances in which the so-called offender is roaming

freely without any fear of being caught. In September 2012 the Ex

president of Bolivian Gonzalo Sanchez de Lozda was officially

charged by the court of Bolivia for instructing his armed forces

to restrain demonstration in opposition government on the issue

of Energy and Globalization. The facts shows that, his forces

exterminated 67 natives and leaving behind 400 Aymara community

wounded, which resulted into the “Gas War”44 due to this reason he

ran away to United States. Even though Extradition treaty exists

44 http://www.guardian.co.uk/commentisfree/2012/sep/09/america-refusal-extradite-bolivia

between US-Bolivia, the US indicated, unwillingness to hand over

the accused on the ground that civilian leader is not liable to

be held guilty for crimes committed by the armed forces. It is

unfortunate that these political ideologies are denying justice

to the victims. In February 2012, former president of Yemen Ali

Abdhulla Saleh, after committing crime against humanity ran away

to US because of the fact that US has restricted the use of

universal jurisdiction. The Human Rights activist are planning to

prosecute him in foreign court under the principle of universal

jurisdiction .The US has always maneuver international law

according to its own conditions and is not interested on other

states using the principle of universal jurisdiction to take

legal action its own nationals. In 2011, the case of Hissene

Habre, ex- dictator of Chad explains the loopholes relating to

the principle of universal jurisdiction, he is charged in

committing crime against humanity such as ethnic cleansing. Since

2000, attempts have been made to put this criminal behind the

bars but no progress seems on way, making justice in conflict. In

July 2009, a proceedings were brought by Tibetan rights group,

against seven Chinese leaders killing 203 Tibetans and 1000

wounded was heard by the Spanish court under the principle of

universal jurisdiction, but due to the pressure from countries

such as United States, Israel, China the Spanish court has now

made a decision to drop its inquire into the matter. However, the

fact can’t not be denied that in 2011 and 2010 number of cases

and reports were presented under the principle of universal

jurisdiction.

In July 2011, a report was presented bringing the officials of

Bush administration into list of Human Rights Watch (HRW) who was

charged of committing torture. In 2002, Germany made a proposed

legislation into law by the Code of Crimes against International

Law (CCAIL), codifying the rule of universal jurisdiction into

domestic law. In 2010, HRW in Argentina asked federal courts to

open an inquiry into crimes committed during the Spanish civil

war using the principle of universal jurisdiction. Israeli jurist

and Politian Gideon Hausner presented his view that the aim of

international law is not just to give punishments for past

events, but it should rather put a check on crime happening

against humanity. Thus, Eichmann case had made a vast impact on

public consciousness and led to the beginning of worldwide legal

doctrine of justice. “The world has not forgotten the trial after so many years,”

said by the United Nation spokesperson Ramu Damodaran. In the

Eichmann trial, the court in Israel set a vital modern principle

in the development of universal jurisdiction, the rule that each

nation has an interest in bringing the offender committing grave

crimes to put to trial, no matter where the crime was executed,

and irrespective of the nationality of the offender. The trial

was noteworthy in presenting that the Holocaust was inimitable

and was not just a one more paradigm of anti-Semitism throughout

world history. The vastness of the evidence confirmed the

Holocaust was an extraordinary transgression .According to

Deborah Lipstadt the trial's place was also the key factor45. The

consequence of the Holocaust event was first presented in the

Eichmann trial held in Israel. This trial challenged the existing

outlook of passivity in the face of the German administration.

Conclusion

Eichmann trial was a trial, which allowed people and the nation

to memorize a very excruciating past. The trail of Eichmann and

deliverance of justice holds a significant place in the world

history. The Eichmann trial was the important moment of change in

the holocaust history. It gave a voice, a face to the millions of

people who were victimized under Nazi rule .The world observed

and heard to the victims, and eyewitness of the revulsion of

Holocaust. The atrociousness of the crime linked with one man was

proved. It was the first ever trial in the history of mankind

which talked in length about the concept of jurisdiction. It led

the principle that crime of grave nature can be tried45http://www.nytimes.com/2011/04/10/books/review/book-review-the-eichmann- trial-by-deborah-e-lipstadt.html?pagewanted=all&_r=0

irrespective of nationality. Though the trial amounted to number

of criticism but it stick to the principle of universal

jurisdiction and held that certain crime are so horrendous that

the culprit should not get away from the punishment. It gave the

birth to the modern concept of universal jurisdiction principle.

Thus, Eichmann trial held 50 yr ago played an essential role in

influencing the world or the truth of genocide.

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Internet Sources

http://www.echr.coe.int/Documents/Convention_ENG.pdf

http://www.worldcourts.com/pcij/eng/decisions/1927.09.07_lotus.htm

http://www.guardian.co.uk/commentisfree/2012/sep/09/america-refusal-extradite-bolivia

http://www.nytimes.com/2011/04/10/books/review/book-review-the-eichmann-trial-by-deborah-e-lipstadt.html?pagewanted=all&_r=0