Archive/File: people/e/eichmann.adolf/transcripts/Judgment/Judgment-009
Last-Modified: 1999/05/27

50. Indeed, there can be no escaping the conclusion that the
violation of international law through the mode of the
bringing of the accused into the territory of the country
pertains to the international level, namely the relations
between the two countries concerned only, and must find its
solution at such level.  The violation of the international
law of this kind constitutes an international tort to which
the usual rules of customary international law apply.  The
two important rules in this matter are (see Schwarzenberger,
Manual of International Law, 1960, I 162) -

     (a) "The commission of an international tort involves
     the duty to make reparations";
     
     (b) "By consent or acquiescence, an international claim
     in tort may be waived and, in this way, the breach of
     any international obligation be healed."

Through the joint decision of the Governments of Argentina
and Israel of 3 August 1960 "to view as settled the incident
which was caused through the action of citizens of Israel
that has violated the basic rights of the State of
Argentina," the country whose sovereignty was violated has
waived its claims, including the claim for the return of the
Accused, and any violation of international law which might
have been linked with the incident in question has been
"cured."  Therefore, according to the principles of
international law, no doubt can be cast on the jurisdiction
of Israel to bring the Accused to trial after 3 August 1960.
After that date, no cause remains on the score of a
violation of international law which could have been adduced
by him in support of any contention against his trial in
Israel.

We have said above that, in our view, so far as this case is
concerned, it is immaterial how this controversy is to be
determined, and we might add that even the slight doubt as
to the import of English judicial precedent which was raised
by O'Higgins has no practical relevance to this case.  The
Accused was brought to trial after the "violation of
international law," upon which the learned Counsel bases his
pleadings, had been made the subject of negotiations between
the two countries concerned, and had been settled by their
mutual consent.  Therefore, Counsel had not in effect any
foundation in international law for his contention, even if
the premise be true that the Accused was abducted by agents
of the State of Israel.  Insofar as Argentina's sovereignty
had been impaired, "the incident has been settled," and
thereupon the episode of the kidnapping of the Accused
descended from the level of international law to the level
of municipal law (in the sense of the distinction between
the two as made by Morgenstern, Dickinson and O'Higgins).
Following upon the settlement of the incident between the
two countries prior to the bringing of the Accused to trial,
the judgment may be based without hesitation on the whole
chain of British, Palestinian and American continuous
judicial precedents, beginning from Ex parte Scott to
Frisbie v. Collins et seq.  If the violation of Argentina's
sovereignty is excluded from consideration, then the
abduction of the Accused is not different from any unlawful
abduction, whether it constituted a contravention of
Argentine law or Israeli law or both.  Thus, after the
enactment of the Federal Kidnaping Act, the United States
Supreme Court ruled unanimously in Frisbie v. Collins (1952)
342 U.S. 512 (96 L. Ed. 541), p. 545):

     "This Court has never departed from the rule announced
     in Ker v. Illinois, 119 US 436, 444, that the power of
     a court to try a person for crime is not impaired by
     the fact that he had been brought within the court's
     jurisdiction by reason of a `forcible abduction.'  No
     persuasive reasons are now presented to justify
     overruling this line of cases.  They rest on the sound
     basis that due process of law is satisfied when one
     present in court is convicted of crime after having
     been fairly apprised of the charges against him and
     after a fair trial in accordance with constitutional
     procedural safeguards.  There is nothing in the
     Constitution that requires a court to permit a guilty
     person rightfully convicted to escape justice because
     he was brought to trial against his will.
     
     "Despite our prior decisions, the Court of Appeals,
     relying on the Federal Kidnaping Act, held that
     respondent was entitled to the writ if he could prove
     the facts he alleged.  The Court thought that to hold
     otherwise after the passage of the Kidnaping Act `would
     in practical effect lend encouragement to the
     commission of criminal acts by those sworn to enforce
     the law.'  In considering whether the law of our prior
     cases has been changed by the Federal Kidnaping Act, we
     assume, without intimating that it is so, that the
     Michigan officers would have violated it if the facts
     are as alleged.
     
     "This Act prescribes in some detail the severe
     sanctions Congress wanted it to have.  Persons who have
     violated it can be imprisoned for a term of years or
     for life; under some circumstances violators can be
     given the death sentence.  We think the Act cannot
     fairly be construed so as to add to the list of
     sanctions detailed, a sanction barring a state from
     prosecuting persons wrongfully brought to it by its
     officers.  It may be that Congress could add such a
     sanction.  We cannot."

On the solid ground of municipal law, the Accused can have
no argument against the jurisdiction of the Court, while his
contention based on the "violation of international law" is
untenable because such ground did not exist, at all events,
at the time when he was put on trial.

51. The fact that the Accused had no immunity, following
upon Argentina's assent to view the incident as settled, may
also be deduced from United States ex rel. Donnelly v.
Mulligan, (1935) 76 F (2d) 511.  The appellant was
extradited from France to the United States and, before the
thirty day period of immunity prescribed in the extradition
treaty between the two countries, had elapsed, the appellant
was arrested anew for extradition to Canada.  In their first
decision (74 F (2d) 220), the Court of Appeals decided to
release, pursuant to the ruling in U.S. v. Rauscher.
Subsequent to that decision, the President of the French
Republic issued an order authorizing the United States to
surrender the appellant to Canada.  When the case came to be
reheard, the Court of Appeals decided that the new order of
France had deprived the appellant of his immunity under the
above-mentioned extradition treaty.  Stating its reasons for
the judgment, the Court said inter alia (p. 512):

     "The appellant cannot complain if France acted under
     the treaty, nor can he complain if it acted independent
     of the treaty as an act of international comity.  The
     French decree consents to his re-extradition; moreover,
     it may be regarded as a consent given independently of
     the treaty and as an act of international comity.  If
     under the treaty, it is conclusive upon the appellant.
     France had the right to give or withhold the asylum
     accorded him as it saw fit.  And it has withheld asylum
     for the purpose of re-extradition to Canada.  The
     appellant cannot question this action on the part of
     France."

page 513:

     "Extradition treaties are for the benefit of the
     contracting parties and are a means of providing for
     their social security and protection against criminal
     acts, and it is for this reason that rights of asylum
     and immunity belong to the state of refuge and not to
     the criminal."

If the immunity of that appellant which was assured by the
extradition treaty whereby France surrendered him to the
United States was taken away through France's assent and the
withdrawal of her protection of him, there is all the less
reason for the present Accused, who was never protected by
the principle of U.S. v. Rauscher, to claim personal
immunity (for this is what his contention against
jurisdiction really amounts to), by reason of the violation
of the sovereignty of a country that has waived all her
claims with reference to such violation and has not extended
any protection to the Accused.  See also statements made in
Ker v. Illinois (above) on the difference between the right
of a sovereign country to offer an offender asylum within
its territory and the demand of the offender for the grant
of such asylum.  In the words of the summing up in U.S. v.
Mulligan, "the rights of asylum and immunity belong to the
land of the asylum and not to the offender."

The above-mentioned precedent, which is also cited by Hyde
(ibid.) p. 1035 and Oppenheim (Lauterpacht) (ibid.) p. 702,
conforms to the principles of current international law.
See Moore, Extradition (1891) Vol. 1, p. 251:

     "... The immunity of the extradited person...rests upon
     a contract between the two governments... His immunity
     is within the control of the surrendering government,
     and he could not be permitted to set it up, if that
     government should waive it."

page 279

     "The character of a fugitive from justice cannot confer
     upon him any immunities."

See also Harvard Research in International Law, Draft
Convention on Extradition, 29 AJIL (Suppl.) 1935, p. 213
(our emphasis):

     "Part V: Limitations upon the Requesting State
     
     Article 23.  Trial, Punishment and Surrender of
     Extradited Person.
     
     (1) A State to which a person has been extradited shall
     not, without the consent of the State which extradited
     such person:
     
     (a) Prosecute or punish such person for any act
     committed prior to his extradition, other than that for
     which he was extradited;
     
     (b) Surrender such person to another State for
     prosecution or punishment..."

Also section 24 of the Extradition Law 5714-1954:

     "Persons extradited to Israel"
     
     "Where a person is extradited to Israel by a foreign
     country, such person shall not be held in custody or
     prosecuted for any other offence he committed prior to
     his extradition, nor be extradited to another country
     for an offence committed prior to his extradition,
     unless such foreign country had given its consent in
     writing to such action, or if such person failed to
     leave Israel within sixty days after having been
     enabled, upon his extradition, so to do, or if he left
     Israel upon his extradition and returned thereto of his
     own free will."

Kelsen was right, therefore, when he stated in his General
Theory of Law and State (1949) p. 237, that:
"Extradition treaties establish duties and rights of the
contracting States only."
and so was Schwarzenberger when he said in 3 Current Legal
Problems (1950) p. 272:

     "It would be...a travesty of the real situation to
     imagine that States intended an extradition treaty to
     be the Magna Carta of the criminal profession, or to be
     based on any principles of international law which
     prisoners are `entitled to invoke in their own right'."

The words "entitled to invoke in their own right" are
directed against the views of Lauterpacht, in 64 Law
Quarterly Review (1948) p. 100.  There is no doubt that
Schwarzenberger represents the dominant view and the rule of
law in force on this issue.  It is also acknowledged on the
continent of Europe, including Germany: see Dahm (ibid.),
pp. 279-280, and is in actual usage and application in the
judicial decisions of most countries (see ibid., note 26).

52. On the subject of the want of immunity of a fugitive
offender in his own right, as distinct from an immunity
ensuing from a contractual commitment between sovereign
countries, we find some interesting observations in Chandler
v. United States (1949) 171 F. 2d 921, where it is said (p.
935):

     "Nor was Chandler's arrest in Germany a violation of
     any `right of asylum' conferred by international law.
     In the absence of treaty a State may, without violating
     any recognized international obligation, decline to
     surrender to a demanding State a fugitive offender
     against the laws of the latter... Particularly as
     regards fugitive political offenders - including,
     presumably, persons charged with treason... - it has
     long been the general practice of States to give
     asylum.  But the right is that of the State voluntarily
     to offer asylum, not that of the fugitive to insist
     upon it.  An asylum State might, for reasons of policy,
     surrender a fugitive political offender - for example,
     a State might choose to turn over to a wartime ally a
     traitor who had given aid and comfort to their common
     enemy - in such a case we think that the accused would
     have no immunity from prosecution in the courts of the
     demanding State, and we know of no authority indicating
     the contrary... One can appreciate the considerations
     which ordinarily would make a State reluctant to give
     affirmative assistance to a sister State in the
     apprehension and prosecution of a fugitive charged with
     a political offence.  But these considerations are
     inapplicable to the wronged State, which naturally
     would have no qualm or scruple against bringing a
     fugitive traitor to trial if it could lay hands on him
     without breaking faith with the asylum State."

It is hardly necessary to state, with reference to the
above, that the Accused is not at all a "political"
criminal; the reverse is the case: The crimes which are
attributed to the Accused have been condemned by all nations
as "abhorrent crimes" whose perpetrators do not deserve any
asylum, "political" or other.  We have already referred
above to Article 7 of the International Convention for the
Prevention and Punishment of Genocide which lays down the
principle that the "extermination of a people and other acts
set out...will not be deemed political crimes for the
purpose of extradition."  Moreover, the United Nations
Assembly enjoined in repeated Resolutions (Resolutions of 12-
13.2.46 and 31.10.47) all states, whether or not Member
States of the United Nations, to arrest the war criminals
and the perpetrators of crimes against humanity wherever
they may hide, and to surrender them, even without resort to
extradition, with a view to their expeditious prosecution.
(See History of War Crimes Commission, pp. 411-414.)  There
is considerable foundation for the view that the grant by
any country of asylum to a person accused of a major crime
of this type and the prevention of his prosecution,
constitute an abuse of the sovereignty of the country,
contrary to its obligation under international law (see
Oppenheim-Lauterpacht, ibid., Vol. 2, p. 588).  See also the
Resolution passed in Mexico City in March 1945 by the "Inter-
American Conference on the problem of War and Peace," also
the article by H. Silving, "In Re Eichmann: A Dilemma of Law
and Morality," in 55 AJIL (1961) 307, p. 324.

In the Note addressed on 8 June 1960 by Argentina to Israel,
which was published by the Security Council in Security
Council Official Records, Suppl. for April, May and June
1960, p. 24, document S/4334, the Argentinian nation
expressed:

     "its most emphatic condemnation of the mass crimes
     committed by the agents of Hitlerism, crimes which cost
     the lives of millions of innocent beings belonging to
     the Jewish People and many other peoples of Europe,"
     
and proceeded to say:

     "The fact that one of the aforesaid agents, precisely
     the one who is accused of having conceived and directed
     the cold_blooded execution of a vast plan of
     extermination, should have entered and settled in
     Argentine territory under a false name and false
     documents, in obviously irregular circumstances in no
     way covered by the conditions for territorial asylum or
     refuge, does not justify the gratuitous assertion that
     many Nazis live in Argentina."

The question as to whether or not other Nazis reside in
Argentina has no relevance to this case, and if we cite from
the above-mentioned Note, it is only to show that the
position taken by the Government of Argentina is that
Argentina has not given asylum or refuge to the Accused who
entered her territory and settled therein "under a false
name and false documents," in "obviously irregular"
circumstances which do not in any way tally with "conditions
for territorial asylum or refuge."  That position conforms
to the principles of international law and the Resolution of
the Inter-American Conference referred to above.  The
Accused is not a "political" criminal, and Argentina has
given him no right of "refuge" in her territory, and all
that has been said in our precedents on the subject of the
want of the right of refuge of a "political criminal"
applies to the Accused a fortiori.

See also Criminal Appeal 2/41 Youssef Sa'id Abou Durrah v.
Attorney General (PLR Vol. 8, p. 43) in which the appellant
was extradited by Transjordan to Palestine under the
Extradition Agreement of 1934 between the two governments,
was charged with murder and sentenced to death by the Court
of Criminal Assizes in Jerusalem.  Counsel for appellant
pleaded (a) that the extradition was effected contrary to
the provisions of the Extradition Agreement; (b) that the
offence was "political" (and therefore not "extraditable").
The Supreme Court decided (pp. 44-45):

     "It is argued, in the first place, that the extradition
     proceedings were improper and that therefore the Assize
     Court had no jurisdiction to try the man... If the
     Government concerned is satisfied that the provisions
     of Articles 4, 5 and 6 have been carried out, that, we
     think, must be the end of the matter, except that
     possibly the Courts of this country are not entitled to
     try the man for an offence different from that on which
     his extradition was obtained.
     
     "Finally, it is said that this is a political offence.
     Under the law of this country, murder is murder pure
     and simple, whatever the motives may be which inspired
     it.  We know of nothing in the criminal law of this
     country or of England that creates a special offence
     called political murder.  In any case, even supposing
     it were a political murder, nothing prevents the man,
     if he is within the jurisdiction of this country, from
     being tried for it."

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