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people/e/eichmann.adolf/transcripts/Sessions/Defence-Submission-01-05
Last-Modified: 1999/06/09

(c)However, in order to avoid the misunderstanding as if the
territorial principle amounted only to a widespread
principle of international law, we may quote - instead of
other authorities - only the view of one of the most
important scholars of international law, the Frenchman
Donnedieu de Vabres:

     "S'il est un principle de droit penal international qui
     soit au-dessus des discussions, consacre qu'il est par
     une tradition venerable et par des avantages certains,
     c'est celui du principe de la primaute de la loi
     territoriale."[106]

The "Draft Convention on Jurisdiction with Respect to
Crime", dated 1935, is also in conformity with the
precedence of the territorial principle in respect of all
other possible bases of jurisdiction over foreigners - by
proposing in art. 3 - also by way of systematic legal
arrangement - the territorial principle as point of
departure and basic rule in the question of national
jurisdiction over foreigners.[107]

However, the territorial principle has also quite definitely
a purpose in the area of practice and procedure.[108]
Already in 1928, Donnedieu de Vabres had asked[109] to
regulate international criminal law so as to warrant as
completely as possible the elucidation of truth, the
punishment of the guilty and the acquittal of the innocent.
These claims are best met by the territorial principle; for
only in proceedings respecting this principle is it possible
to compel, in case of need, the appearance of witnesses by
applying compulsory measures of the State. Outside the
territorial principle, there are no such means of compulsion
aimed at the elucidation of truth and the realization of
justice. No state has the legal means to cause foreign
witnesses outside its territory to appear in one of its
tribunals and to give evidence. The present State Attorney
of the Land Hessen, Fritz Bauer, reports in a book[110]
written by him already before the end of the War, when he
was an emigre in Sweden, what happened during the so-called
Leipzig trials of war criminals in 1921; it is of interest
in this connection:

     "It was also most difficult to get hold of the
     witnesses, as most of them were living in the
     territories of the Allied Powers and many of them
     refused to enter German territory or to give evidence
     in Leipzig, notwithstanding the safeguards given by the
     German government."

This objection in the area of practice and procedure exists
to a far greater extent in respect of the trial of Eichmann
in Israel; for according to a statement made in the
Parliament of Israel by the Minister of Justice of Israel,
Rosen, witnesses prepared to give evidence in the imminent
trial in favour of the Accused Eichmann could not expect to
be granted immunity.[111]  If in the Leipzig trials the
majority of foreign witnesses did not appear despite the
grant of immunity by the German Government, it is to be
expected that in the Eichmann trial no witness for the
Defence will come forward at all in order to give evidence,
the more so as many of the persons capable of doing so are
exposed to prosecution and punishment, in view of the
exceedingly wide scope of Sec. 3 (a) of the "Nazis and Nazi
Collaborators (Punishment) Law" which provides for up to
seven years imprisonment for the mere membership in an
"enemy organization."

It remains an open question how this fact is to be
reconciled with the unquestionable effort of the authorities
in charge of law enforcement in Israel to give Eichmann a
"fair trial." Of course there is a reply to that question -
although not in conformity with the meaning of "fair trial"
- if Pearlman's[112] view is adopted that Israel meets -
better than any country where Eichmann has committed the
acts imputed to him - the conditions for thoroughly taking
evidence, because in Israel more relevant documents are to
be found than elsewhere in the world, and nowhere in the
world are there more witnesses available than in Israel.
This view of Pearlman's is perfectly correct - with the
important reservation, however, that it holds good only with
respect to the witnesses for the Prosecution.

1. The active personality principle

The active personality principle relates to the nationality
of the offender and, under certain circumstances, it enables
the punishment of the offender by a tribunal of his home
State for offences committed by him abroad.

Israel cannot rely, in Eichmann's case, upon the principle
of international law either; for the Accused is a German
citizen, and not an Israeli citizen.

3. The passive personality principle.

According to this principle, a state is entitled to claim
jurisdiction over a foreigner - and again subject to certain
restrictive conditions - if one of its nationals has been
injured by an act of this foreigner which has been committed
abroad.

This principle, too, does not empower the State of Israel to
prosecute and try the Accused Eichmann. For during the
period in which the crimes imputed to the Accused were
committed, the State of Israel did not yet exist at all, so
that on that legal ground alone it is not possible that by
the offences of the Accused nationals of the State of Israel
were injured.

At this stage the claim has to be discussed that Israel is
entitled to rely upon the passive personality principle at
least in respect of the prosecution of "offences against the
Jewish People." It is asserted that the legal point of
relation to the passive personality principle is to be found
in the Declaration of Independence of 14 May 1948, as well
as in art. 3 of the Draft Constitution of the State of
Israel, where Israel is called the "National Home of the
Jewish People."

In this connection, the meaning of the idea in
constitutional law need not be discussed. Moreover, no doubt
can arise as to the historical and political contents of
this idea, as defining the goal of the State. However, it
must be emphasized that the idea of the "National Home of
the Jewish People" has no meaning whatsoever in
international law.

For it is not in conformity with international law actually
in force that a state is entitled to create a point of
relation determined only by racial tests in order to apply
the passive personality principle. From the point of view of
international law, Israel is precisely not the
representative of all the Jews, whatever their nationality,
but only the representative of nationals of the State of
Israel. Certainly, there can be no doubt that belonging to
the Jewish race alone does not create legal relations
between a Polish citizen of Jewish origin and the State of
Israel. But the existence of such a relationship is a
condition precedent for the vindication of criminal
jurisdiction by the State of Israel in respect of an injury
inflicted upon this Polish Jew.

The recognition of the right of the State of Israel to
prosecute offences against the "Jewish People" - and
therefore against any person belonging to the Jewish race
whatever his nationality - by reason of the determination of
Israel's goal as "National Home of the Jewish People" - will
bring about the obvious and cogent result that an Israeli
statute would have to be classified as unobjectionable and
admissible in international law, if, e.g., thereunder the
killing of an American citizen belonging to the Jewish race,
carried out in the U.S.A., would be punishable and an
Israeli tribunal would be granted jurisdiction in that
respect. It seems that this untenable but logical result
shows quite clearly that belonging to a certain race cannot
amount to a point of relation for the jurisdiction of a
state over a foreigner according to the passive personality
principle.

However, contrary to the legal position which has just been
described, the view has been put forward that it was the
Federal Republic of Germany which attributed a meaning in
international law to the claim of the State of Israel in its
capacity as "National Home of the Jewish People"; for in the
Agreement dated 10 September 1952 between the Federal
Republic of Germany and the State of Israel (the so-called
Reparations Agreement),[113] Israel was recognized as the
representative of the "Jewish People," as meaning the total
number of all persons belonging to the Jewish race. In this
sense, it is stated, e.g. by Green[114]:

     "Israel is entitled to represent Jews who have no
     nationality or who were victims of Nazi oppression - a
     claim that has been recognized by the Federal Republic
     of Germany (Agreement between Israel and the German
     Federal Republic, 10 September 1952)."

This view cannot be approved; for it is obviously incorrect
already in view of the terms of the Agreement itself. The
preamble of the Agreement states, in no uncertain terms, the
reason in law for the German payment of reparation to
Israel:

     "AND WHEREAS the State of Israel has assumed the heavy
     burden of resettling so great a number of uprooted and
     destitute Jewish refugees from Germany and from
     territories formerly under German rule and has on this
     basis advanced a claim against the Federal Republic of
     Germany for global recompense for the cost of the
     integration of those refugees
     
     NOW THEREFORE the Federal Republic of Germany and the
     State of Israel have agreed as follows:"[115]

The preamble of the agreement supports, therefore, in no
uncertain terms, the assertion that Germany as well as
Israel did not consider the German payments as a global
recompense for the injury caused by National-Socialist rule
to the Jews wheresoever in the world, and that therefore
they are not a global recompense of damage caused to
individuals, which the State of Israel is entitled to claim.
The German payments to Israel are rather characterized in no
uncertain terms as a compensation for the financial burden
caused directly to the State of Israel as such ("...global
recompense for the cost of integration...").

Prof. Franz Boehm of Frankfurt - who had conducted, in his
capacity as representative of the German Federal Republic,
the negotiations with the State of Israel preceding the
Agreement of 10 September 1952 - is certainly an unbiased
witness for the truth of this legal construction.

Boehm states "that the State (that is to say, Israel) does
not represent the Jewish People, but only its own citizens,
that therefore a recompense we shall grant this State will
not benefit directly the Jewish People as a whole, but
precisely only this State itself."[116]

Boehm states further on in this context:

"As to the State of Israel in particular, the Chancellor of
the Federation has already given expression to his readiness
to start negotiations as to the compensation for damage
caused to the State of Israel by the absorption of so many
homeless Jewish refugees by that State and, before its
establishment, by the Government of the Mandatory territory
of Palestine."[117]

     "...The mandatory territory of Palestine and later on
     the State of Israel have received, since the beginning
     of the Third Reich up to the end of the year 1951,
     approximately 500,000 refugees who had become homeless
     by reason of the National-Socialist persecution of
     Jews. The reception and the absorption of these masses
     of refugees has caused - and still causes - the State
     of Israel considerable expenses. The Israeli Government
     has claimed the amount of these expenses as
     compensation for damages caused to the State."[118]

     "The German payment to Israel has therefore no
     connection with individual reparation. The Israeli
     Government has never claimed to represent the interests
     of injured Jewish individuals, even not the interests
     of its own citizens. Israel claims compensation for
     damage caused to the State itself by the absorption of
     refugees. It is the claim of a State and nothing
     else."[119]

Nothing needs to be added to these unequivocal statements of
Boehm's.

To sum up, the conclusion has to be that Israel is not
entitled to claim jurisdiction over the Accused Eichmann on
the strength of the passive personality principle.

4. The protective principle

According to this principle, the protection of legal
interests in criminal law extends to all interests within
the territory of the state concerned, irrespective of the
fact by whom and where these interests have been injuriously
affected. (Closely examined, it appears that the passive
personality principle which has just been discussed, is only
a sub-species of the protective principle).

Israel cannot rely on this principle either in order to
justify its claim for criminal jurisdiction over Eichmann;
for in view of the establishment of the State of Israel
which took place only in 1948, "interests within its
territory" could not have been injuriously affected by
offences of the Accused completed in 1945.

5. The universality principle

(a) The last principle which might be called upon in Israel
- subject, of course, to the objection based upon the Acts-
of-State-Doctrine - in order to justify its claim for
criminal jurisdiction over the Accused, is therefore only
the universality principle. According to that principle, a
claim for jurisdiction of the State which has seized the
offender will come into existence, irrespective of the place
where the offence has been committed, the nationality of the
offender and the subject of his offence.[120]  However, this
principle applies subject to considerable reservations. In
the first place, its very validity is contested.[121]
However, insofar as the principle is recognized, it is
unanimously agreed that the application is limited to
specific offences. Only such crimes as are equally dangerous
to all States having regard to the mode of their
perpetration or the international character of their
commission justify a claim for jurisdiction on the strength
of the universality principle.[122]. The universality
principle without restrictions (that is to say, irrespective
of the fact whether the offence is punishable according to
the law of the place of its commission, and disregarding the
precedence of a claim for extradition) is applied by
municipal laws only in respect of specific offences; that is
to say, not generally. The cases where such application is
recognized - counterfeiting, slave trade, white-slave trade,
trade of children, trade of dangerous drugs or obscene
publications, causing damage to submarine cables - are based
upon international agreements[123] or, at least, upon
established practice.[124]  Recognition of the universality
principle limited as aforesaid to certain specific offences
has been voiced, i.e., by Oppenheim-Lauterpacht,[125]
Travers,[126] Janaczek,[127] Kelsen[128] and Woetzel.[129]

(b) However recently a certain tendency can be ascertained
to widen the universality principle and to extend it, beyond
the scope of the aforesaid legally protected interests, also
to war-crimes and crimes against humanity.[130]  These
tendencies have been encouraged by the four Geneva
Conventions of 12 August 1949. By these Conventions, the
States, parties to the Conventions, undertake to make
punishable serious violations of the agreements and to
persecute them regardless of the place of their commission
and of the nationality of the offender.[131]  Extradition to
one of the other parties to the conventions, it is true, is
permitted, but there is no obligation to extradite. At any
rate, in respect of the scope of application of the Geneva
Convention, the universality principle has thereby been
recognized. On the one hand, therefore, the Geneva
Conventions are evidence of the tendency to widen the scope
of the universality principle, but on the other hand, they
are also evidence of the fact that before the signature of
the conventions, the universality principle had not applied
to the subject matter dealt with therein; otherwise the
signature of the conventions would not have been
necessary.[132]

(c) The London Charter of the International Military
Tribunal, dated 8 August 1945. and the Judgment of the
International Military Tribunal, dated 30 August 1946

The London Charter and the Judgment of the International
Military Tribunal in the trial of Nuremberg deserve a
thorough discussion in connection with the Eichmann case for
the following reasons:

Art. 6 of the London Charter provided for punishment of war
crimes and crimes against humanity, without any restriction
as to the time and place of the commission of the offence.

If the London Charter is regarded as a codification of
customary international law then in force or as a genuine
source of international law, one has to expect the argument
that the validity of a universality principle, the
application of which is not restricted to certain specified
offences, could be based upon these sources of law so that
Israel could probably claim jurisdiction over Eichmann.

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