Legal Issues of the Adolf Eichmann Trial

This is a case proposing from Attorney general of Israel to Adolf Eichmann. Eichmann was a German Nazi and a SS-Obersturmbannführer equivalent to Lieutenant Colonel. Adolf Eichmann was brought to trial in The District Court of Jerusalem in 1961 under the Nazi and Nazis collaborators Law 5710-1951 (Israeli Law) on charges of unsurpassed gravity, charges of 15 crimes along with charges of crimes against the Jewish People, crimes against humanity, and war crimes.  The period of the crimes ascribed to him, and their historical background is that of the Hitler regime in Germany and in Europe, and the counts of the indictment encompass the catastrophe which befell the Jewish People during that period.

This case raises some legal issues which will be identified and summarized now but will be later used to during the main course of this legal document and full discussion and analysis will be illustrated.

First of all it raises the issue of crimes against humanity. The initial legal formulation of crimes against humanity promulgated at the Nuremburg Tribunals focused on ‘atrocities and offences, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population’ [1] The most recent formulation, Article 7 [2] of the adds to this list enforced prostitution, forced pregnancy, enforced sterilization, other comparably severe forms of sexual violence of comparable gravity, thus Eichmann’s enforced disappearance of Jewish people and 430 0000 done intentionally by causing great suffering or serious injury to the people of Israel where such acts were knowingly committed as part of a widespread or systematic attack directed against the civilian population, are all crimes against humanity.

The second legal issue is the issues of war crimes and genocide which were committed by Eichmann during the Second World War. Genocide under the UN convention on prevention and punishment of genocide of 1948 defines genocide as a specific form of crime under international law which applies in both war and peace. It stipulated that genocide means killing members of the group, causing grievous bodily or mental harm to members of the group or any of the following acts committed with the intent to destroy in whole or in part, a national, ethnical or religious group.

War crimes means “violations of the laws or customs of war”; including “murder, the ill-treatment or deportation of civilian residents of an occupied territory to slave labor camps”, “the murder or ill-treatment of prisoners of war”, the killing of hostages, “the wanton destruction of cities, towns and villages, and any devastation not justified by military, or civilian necessity”. The modern concept of war crime was further developed under the auspices of the Nuremberg Trials based on the definition in the London Charter that was published on August 8, 1945.

However by relating this fact of this case to the following issues illustrated above or other words by qualifying the fact of this case it can be seen that Eichmann is liable for these crimes labeled against him because the actions of Eichmann has in it elements of the issues illustrated above and that is a violates international law. It has in it elements of war crimes, genocide and crimes against humanity which all of these crimes are generally not accepted globally by any nation of this world. A little glance through the fact of this case show the actions of Eichmann are unlawful and punishable under international law. Eichmann at first made an offer through Joel Brand to trade captive European Jews to the Western Allies in exchange for trucks and other goods. When there was no positive response to this offer, Eichmann started deporting Jews, sending 430,000 Hungarians to their deaths in the gas chambers. Eichmann ordered Jewish extermination to be halted and evidence of the Final Solution to be destroyed. He was appalled by Himmler’s turnabout, and continued his work in Hungary against official orders. He was also working to avoid being called up in the last ditch German military effort, since a year before he had been commissioned as a Reserve Untersturmführer in the Waffen-SS and was now being ordered to active combat duty and more than six million murders were attributed to his name at the end of world war II. At this point in time it can be argued that Eichmann’s action contains elements of genocide, war crimes, and crimes against humanity and most especially against the Jewish people and this is a violation of international law.

The first point of discussion or argument of this case would be base on the principle of state jurisdiction mainly focusing on universality principle to illustrate and determine Israel’s jurisdiction over this case. Under this principle each and every state has jurisdiction to try particular offences. The basis for this is that the crimes are regarded as particularly offensive to the international community as a whole. For instance war crimes which such crimes clearly belong to the sphere of the universal jurisdiction. However, The Charter of the Nuremberg and Tokyo Tribunals, the Statutes of the International Criminal Tribunals for the former Yugoslavia and Rwanda and the Rome Statute of the International Criminal Court all confirm that courts can exercise jurisdiction over grave crimes under international law regardless of the official capacity of the accused at the time of the crime or later, be it a head of state, head or member of government, member of parliament or other elected or governmental capacity. The fact that no one is above the law was confirmed when the British House of Lords ruled in Pinochet case had no right to immunity from prosecution as a former head of state. Thus the actions of Eichmann’s being no different from war crimes, it means that Israel is justified in the trial of Eichmann before their court due to universal jurisdiction. Eichmann who was convicted and brought to trial in Israel under the Israeli law of 1951 for war crimes and crimes against the Jewish people and crimes against humanity was clearly justified and lawful because international law was in need of legislatives and judicial organs of every state to give effect to its criminal interdictions in bringing criminals of war to trial. However Article 49 of the Geneva Red Cross convention 1949 also made provision supporting universal jurisdiction over grave breaches and criminal offences like war crimes and crimes against humanity. Although the fact that the crimes were committed prior to the establishment of Israel did not prevent the correct applications of its powers pursuant to universal jurisdiction under international law instead Israel municipal law merely reflected the reiterated offences existing under international law. However, the territorial principle has also quite definitely a purpose in the area of practice and procedure. Already in 1928, Donnedieu de Vabres had asked 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. 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. 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 Defense 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.”

The second basis of the argument in this case is on the basis principle of rendition. This principle was adopted and illustrated under the international Law commission which adopted a draft criminal code of crimes against peace and security of mankind in 1991. Article 6 provides that a state in whose territory an individual alleged to have committed a crime against the peace and security of mankind is present shall try or extradite him. At his point in time Israel could argue that they were entitle extradite Eichmann by means of bilateral extradition treaty. But although the abduction and removal of Eichmann wasn’t done in by following due process but Israel could also argue that they are not in violation of Argentina’s sovereignty because the abduction of Eichmann was carried out by a group of volunteers (Mossad) whom were not supported by the government of Israel or not emanation of Israel state. The abduction would have been wrong and unjust or even a violation of sovereignty of Argentina if it was done by an emanation of state of Israel or the government of Israel itself. in Foster, A and others v. British Gas plc [3] states that  a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the state, for providing a public service under the control of the state and has for that purpose special powers beyond that which result from the normal rules applicable in relations between individuals is an emanation of the state but on the other hand a state is not liable for actions or crimes committed by a group or private individuals not an emanation of that state so therefore by relating this illustration to the case at hand it can be argued that Israel is not in violation of Argentina’s sovereignty because mossad the group of volunteers are not under the control of the state or owned by the state.

Another basis of the argument in this case is on the basis of Crime against the Jewish people which he committed, An offence under section 1(a) of this law, in that during the period from August 1941 to May 1945 in the territories and areas on this convention, he together with others subjected millions of Jews to the living condition which were likely to bring about their physical destruction in order to implement the plan which was known as the “Final solution of the Jewish Question “with intent to exterminate the Jewish people. The accused together with others carries out these acts by adopting methods; sudden mass arrests of innocent Jews, without judicial process and only because of their being Jews and their torture in concentration camps, such as those at Dachau and Buchanwald. And the organization of mass persecution by means of arrests, cruel beatings, the infliction of serious injury, of approximately 2,000 Jews of Germany and Austria on the night between the 9th and 10th November 1938; Putting into practice the laws know as “the Nuremberg law” for the purpose of depriving millions of Jews in all those countries specified in the first court of their human rights. Also the accused carried out these acts with the intention of destroying the Jewish people. Furthermore, The Crime against the Jewish people defined on the pattern of the genocide crime defined in the convention for the prevention and punishment of genocide which was adopted by the United Nations Assembly on 9 December 1948. The crime against humanity and the war crime are defined on the pattern of crimes of identical designations defined in the charter of the international Military Tribunal (which is the statute of the Nuremberg Court) annexed to the Four power Agreement of 8 August 1945 on the subject of the trial of the principal war criminals (the London Agreement), and also in law No10 of the control council of Germany of 20 December 1945.

Also the abduction of Eichmann can also be justified on the basis of necessity.