Dr. Servatius: To this I answer: If according to the common law approach, in case of doubt the domestic law is preferable to international law, then the development of modern law requires an examination of this principle. It is essential that preference should be given to international law over domestic law, if we aspire to world-wide order in international law. The Constitution of the Federal republic of Germany aims at that from a legal point of view. This is a basic principle demanding implementation everywhere.

The Attorney General produced an abundance of decisions designed to prove the competence of the Court according to customary procedure of international law. These precedents relate to a large extent to the conditions prevailing between the various states of the United states of America. These are cases in which an accused, because of an act committed in his state, was brought before the only court competent to try him. These are cases in which the accused was brought before a court in his own country. An examination of the transfer from another state to the state where he was to be tried is always rejected, since according to the law of his country the accused does not have a constitutional right to ask for such an examination.

The case of Lascelles versus Georgia in 1893, a judgment which has been referred to here, rejects in clear terms the argument that international law applies to internal relations between member states of the United States.

Presiding Judge: Mr. Hausner, did you cite this judgment?

Attorney General: I do not remember citing it. I quoted many cases stating the opposite.

Presiding Judge: We here do not remember Mr. Hausner quoting this particular judgment amongst the many judgments he cited.

Attorney General: But if Defence Counsel so wishes, I am prepared to produce it within a minute or two.

Presiding Judge: Do you know the case?

Attorney General: Yes, I know it.

Judge Halevi: What is the exact name of the case?

Dr. Servatius: This is the case of Lascelles versus Georgia of 1893, 148 U.S. Supreme Court Report 687.

Presiding Judge: What does that judgment say?

Dr. Servatius: It states that international law does not apply, it is stressed that the Constitution of the United States and its laws are to apply to the accused, and that the application of international law is not supported by authoritative legal opinion. I have here the original English text (reading):

"There are decisions in the state courts, and in some of the lower federal courts, which have applied to the rule laid down in U.S. versus Rauscher, supra, to interstate rendition of fugitives under the constitution and laws of the United States; but in our opinion they do not rest upon sound principle, and are not supported by the weight of judicial authority." (on page 690)

Attorney General: I think there is a misunderstanding here. The court decided that it had jurisdiction.

Judge Halevi: Jurisdiction to go into the matter or into the legality of bringing the person to trial, but not jurisdiction to examine the question of kidnapping.

Attorney General: Yes, that is it.

Presiding Judge: This is what Dr. Servatius said, and this is at least what he intended. Thus, seeing that the Court was not competent to examine the matter from the point of view of international law, it was competent to examine it from the point of view of domestic law.

Dr. Servatius: In the case of Pettibone versus Nicholls, Judge McKenna remained in the minority. In his minority opinion, a single opinion, he said it would not be right to send the kidnapped man to the state whence he had been kidnapped so that he should stand trial there, but this judge, too, was not relying on international law but on the Constitution.

Presiding Judge: Does not the Constitution of the United States refer, in any way, to international law?

Dr. Servatius: I do not know all the details of that Constitution. I now turn to the cases which are truly international. Not one of them is a precedent supporting the competence of the Court. When we come to examine these cases, one must take note of the following points. There are some cases where nothing is said of kidnapping because of the assistance afforded by the very State from which the man was kidnapped. For example, this was so in Ex parte Elliot of the year 1949, which was quoted by the Prosecution. An English deserter was arrested by English officers with the cooperation of the Belgian police. This was so in the case of Insul of the year 1934, which was referred to here, in regard to the arrest of an American in Constantinople by the Turkish authorities. But all these cases deal with criminal acts over which the court had jurisdiction according to the principle of protection. This was so in the case of Chandler who was charged with the crime of treason against the State and also in the "Lotus" case. The Prosecution referred here to the Chandler case.

The Prosecution emphasized piracy, slave trading and so forth which the arm of law could reach over the entire world, in terms of the principle of universality. Those committing such crimes are the enemies of mankind and it is the obligation of every individual state to see to it that they will not be able to cause more harm. The Prosecution believes that in the trial of Eichmann, too, these principles must be applied. To this I answer that no danger to mankind is envisaged from the Accused. When Hitler's regime came to an end, he became a peace-loving citizen. It was his bad luck that he was obliged to accept the authority of an inhuman government. He succeeded in overcoming the ideas of that government. He freed himself from the oath through which his obligation of allegiance had been abused.

And now I will express myself on the matter of the Accused's declaration which he made in Argentina concerning his coming to Israel of his own free will. There would be no room to continue examining the question of jurisdiction of the Court if in truth and of his own free will, the Accused accepted for himself the authority of this Court. In the opinion of the Attorney General the declaration is irrelevant, but possibly the Court will attach some importance to it and therefore I will express my stand on it.

Prima facie, one can assume that this declaration was made under duress. Therefore the onus of proving that this was not so rests on the Prosecution. In the United Nations Security Council not one of the States having the right to vote expressed the view that this declaration was given voluntarily. If the view had been accepted that the declaration had been made willingly, there would not have been much discussion on Argentina's complaint; it is hard to believe that the matter would even have reached the agenda.

A further word on the subject on the question of the Security Council's consent to the trial of the Accused. In the preamble to the resolution of 23 June 1960 quoted here, the Security Council expressed the opinion that the Accused should be brought to trial. But the object of kidnapping was to bring the Accused before a court in Israel, and the Security Council did not give its assent to that.

In this resolution there is another limitation. It is said there that the Accused should be brought before an appropriate court. This was mentioned in order to exclude an Israel Court by way of exception.

Judge Halevi: It does not say "appropriate court"; it says "shall be brought to appropriate justice."

Dr. Servatius: The text is not before me. I assume this is correct, but these words have been taken out of their context. It says here "to appropriate justice, to fitting justice." Similarly the Prosecution referred to the fact that there was no question here of a conflict with international law and accordingly concluded that there was nothing to prevent the trial of the Accused. On recommendation of the Security Council of the United Nations, the incident and the conflict were liquidated by means of the final declaration of 3 August 1960 by Argentina and Israel. But in the text of this declaration there is no withdrawal of the charge that a breach had been committed by the kidnapping, a breach of international law. This breach of the law still remains in effect, and the Accused can rely on it. There is no dispute between the Federal Republic of Germany and the State of Israel, but intervention is still possible and the dispute can emerge at any particular stage of the proceedings.

Presiding Judge: Are you arguing that the joint declaration between Argentina and Israel does not imply that Argentina has agreed to the fact that the Accused will remain in Israel's hands?

Dr. Servatius: I understand the position to be that the difficulties caused by the incident have been cleared up by diplomatic contacts between the two countries without going on to consider the international legal aspect of the matter. On the question of possible conflict in the future with the Federal Republic of Germany I would add this: The Accused has a claim to protection by his country. In case of lack of action by on the part of his Government he can still claim such intervention in an administrative Court and he will, in fact, do so.

Judge Halevi: Is he a German citizen?

Dr. Servatius: Yes, certainly. He is a German citizen.

Judge Halevi: Not an Austrian citizen?

Dr. Servatius: No, he is not an Austrian citizen. When his father acquired Austrian citizenship, he was already an adult, or, at any rate, above the requisite age.

It appears, therefore, that the grounds for a dispute have not yet been finally removed. The pivotal point of all the questions regarding the Court's jurisdiction is and remains the question whether the kidnapping of the Accused had been carried out by agents of the security service of the State.

Attorney General: I must correct Defence Counsel. This is not correct. I am sorry to interrupt him. The Prime Minister announced in the Knesset that the security services of the state had unearthed his hiding place. No more than that.

Dr. Servatius: These things are known to me only from the discussion in the United Nations Security Council. For this reason the official declaration may be different, but that was the original concept. If subsequently in the United Nations Security Council it was pointed out that the kidnappers were volunteers, there is no contradiction. Even volunteers are able to take upon themselves a political mission. This matter can be cleared up by the witnesses. Accordingly I ask the Court to permit the hearing of witnesses.

Presiding Judge: It is still not clear to me why you attach such importance to this distinction - whether he was kidnapped on orders of the government or as a result of private initiative.

Dr. Servatius: If the state itself gives orders to perform an act which is contrary to international law, it cannot rely on it. This is my personal view.

Presiding Judge: And if we suppose that he was kidnapped on private initiative, would you say that an Israel court would have jurisdiction or not?

Dr. Servatius: Possibly the Court would then adopt a different attitude.

Presiding Judge: But I want to know what your view is.

Dr. Servatius: In my view, the position is the same in both cases, but if the state itself gave the order, then the legal aspect would be much simpler. With this I should like to conclude my remarks.

Presiding Judge: The decision of the Court on the preliminary objections of the Defence Counsel will be given next Monday, at 9 o'clock in the morning. The hearing is adjourned until then.

[ Previous | Index | Next ]

Home ·  Site Map ·  What's New? ·  Search Nizkor