|COURT||Supreme Court of Israel|
|JUDGES/CORAM||Yitzhak Olshan, Shimon Agranat, Moshe Zilberg, Yoel Zussman and Alfred Witkon|
|DATE OF JUDGEMENT||29.05.1962|
The crimes perpetrated by the Nazis during Hitler’s reign against Jewish citizens were some of the worst recorded in history. Although accurate figures may never be known, it is estimated that some 6 million Jewish individuals died – men, women, and children from all over Europe. They were deported from their homes in large freight trains in appalling conditions. Whilst some starved or froze to death, others were taken away to concentration camps. At these camps, the fit were forced to perform manual labour and the weak were shot to death or later, gassed to death in thousands.
The Accused, Adolf Eichmann, was an Austrian by birth who volunteered to work for the Security Service (SD) in Berlin. He rose through the ranks and eventually occupied the position of Head of Section (Referent) for Jewish Affairs, charged with all matters related to the implementation of the Final Solution to the Jewish Question.
In this capacity, he oversaw the transport and deportation of Jewish persons, set up and personally ran operation centres in Hungary in order to implement the Final Solution there. He organised the transfer of money from evacuated Jews to the State and was responsible for the administration of the camps at Terezin and Bergen-Belsen. Later, he was captured by Israeli Security Forces in Argentina and handed over to the District Court of Jerusalem to stand trial for war crimes, crimes against humanity and crimes against the Jewish people. The Court convicted him for all 15 counts and sentenced to him to death. He was unsuccessful in contesting the jurisdiction of the Court or defending his actions by relying on superior orders.
The facts of the case are as follows: Prior to the outbreak of World War II, the Accused was a member of the Austrian SS. Later, he volunteered for a position with the Head Office of the Security Service (SD) in Berlin. When the merger of SD with the State Secret Police (Gestapo) to form the Head Office for Reich Security (RSHA), the Accused occupied the role of Special Officer of Zionist Affairs. He was transferred to Vienna in 1938 to administer the Central Office for the Emigration of Austrian Jews. Such was his success that approximately 150,000 Austrian Jews were forced to emigrate. Consequently, he was appointed the head of the new Reich Central Office for Jewish Emigration in October 1939.
From the outbreak of the War to mid-1941, the Accused devised and carried out the mass deportation of Jewish persons from his role as the Special Referent for Emigration and Evacuation within the RSHA. He laboriously explored the possibility of setting up a slave Jewish state in Madagascar. In early 1942, the Accused was appointed as the Referent of the RSHA in matters connected to the Final Solution. For implementing the Final Solution, the Accused received information as to the number of persons to be expelled and organised the transfer of money from evacuated Jews for the disposal of the SS. Furthermore, he oversaw the handling of the transport of Jews, not only in the Reich but also in other countries.
In particular, he headed the Eichmann Special Operations Unit in Hungary and did his utmost to carry out the Final Solution. These “Transport Jews” were taken to concentration camps and those who were unfit for hard labour were exterminated immediately. In autumn 1942, a cover up effort was begun as bodies in mass graves were burned in an effort to hide the slaughter. The concentration camps were evacuated and the Accused was heavily responsible for all administrative matters connected with the Terezin Ghetto and the camp at Bergen-Belsen.
The main issues in the case were:
- Does the District Court of Jerusalem have jurisdiction to try the case in light of the fact that Eichmann is a foreign national and crimes were committed on foreign territory?
- In the affirmative, is jurisdiction negated by the abduction of the Accused from a foreign country?
- Is obeying superior orders a defence excluding criminal responsibility?
Summary of court decision and judgement
The Court’s jurisdiction is founded upon it by the Nazis and Nazi Collaborators (Punishment) Law 5710-1950. This law does not violate the principles of international law. Israel’s “right to punish” is founded on two elements. First, the crimes in question were of a universal character. These crimes were grave offences against the law of nations itself. In the absence of an international court, the offences being of such a nature, grant jurisdiction to any domestic court. Second, the specific character of the crimes, which was the extermination of the Jewish people, provides the necessary linking point between the Accused and the newly-founded State of Israel,a State established and recognised as the State of the Jews. The crimes committed by the Accused concern the vital interests of the State, thus it has a right to punish the Accused pursuant to the protective principle.
This jurisdiction is not negated by the manner in which the Accused was brought before the Court. It is an established rule of law that a person standing trial for an offence against the laws of a State may not oppose his being tried by reason of the illegality of his arrest or the means by which he was brought to the jurisdiction of the court. This rule applies equally in cases where the accused is relying on violations of international, rather than domestic, law. Such a violation of international law constitutes an international tort, which may be “cured” by waiver. In the present instance, the joint decision of the Governments of Argentina and Israel of 3rd August 1960 “cured” the international tort committed by Israel when it entered Argentinian territory to abduct the Accused.
The Court examined the command structure in place at the SS and the scope of the Accused’s authority. It concluded that the although the latter acted in accordance with general directives from his superiors, he retained wide powers of discretion. Under Section 8 of the Punishment Law, the defence of superior orders (contained in Section 19(b) of the Criminal Code Ordinance of 1936) is not available in case of offences enumerated by the aforementioned Law but may be taken into account as a factor at sentencing. The Accused was convicted on all fifteen counts and sentenced to death.
–END OF CASE COMMENT–