6.

Attorney General of Israel vs Eichmann

Facts:

 Adolf Eichmann was a German Nazi officer who played a central role in the planning and implementation of the
persecution (6 million Jewish individuals died) of Jews in Germany, Poland, Hungary and several other countries
before and during WWII. At the end of the war, he escaped to Argentina where he lived and worked under an
alias. Years later, he was kidnapped by Israeli agents and was brought to Israel for trial for war-crime charges.
o 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.(unsuccessful)
 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 address.
 Argentina complained to the Security Council about this clear violation of Argentine sovereignty. The Security
Council issued a Resolution, recognizing 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. (Argentina did not ask for the return of Eichmann) The Argentine and Israeli Governments resolved
communiqué “to regard as closed the incident which arose out of the action by citizens of Israel, which infringed
the fundamental rights of the State of Argentina.”
 Eichmann was tried for his crimes in Israel in the District Court of Jerusalem and was convicted of various
violations of the Nazis and Nazi Collaborators (Punishment) Law 5710-1950 (the Law), receiving a death sentence
as a result.

Issue: 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?

Held: 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
universal character of the crimes in question, which are grave offenses against the law of nations itself and, in the
absence of an international court, 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 recognized 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 3 August 1960 “cured” the international tort
committed by Israel when it entered Argentinian territory to abduct the Accused.

Having examined the command structure in place at the SS (Schutzstaffel, german for “protective echelon” initially served
as Nazi Party leader Adolf Hitler's (1889-1945) personal bodyguards, and later became one of the most powerful and
feared organizations in all of Nazi Germany) and the scope of the Accused’s authority, the Court concluded that the latter
acted in accordance with general directives from his superiors but 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 afore-mentioned Law but may be taken into
account as a factor at sentencing

The Accused was convicted on all fifteen counts and sentenced to death.

REKT