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THE EICHMANN CASE

36 Intl. L. Rep. 5 (Israel, Dist. Ct. Jerusalem 1961)


FACTS:
Adolf Eichmann was a high ranking officer who played vital role in the planning and
implementation of the persecution of Jews in Germany, Poland, Hungary and several
other countries before and during World War II. At the end of the war, he escaped to
Argentina where he lived and work under an alias until May, 1960 when he was
kidnapped by Israeli agents. Argentina complained to the UN Security Council about this
clear violation of Argentine sovereignty. The Security Council, while making it clear that it
did not condone Eichmanns crimes, declared that: Acts such as that under
consideration i.e. the kidnapping of Eichmann, which affect sovereignty of a member
state and therefore cause international friction, may, if repeated, endanger international
peace and security. The Security Council requested the Government of Israel to make
appropriate reparation in accordance with the Charter of the United Nations and the rules
of international law. Argentina did not demand the return of Eichmann, and in August
1960, the Argentine and Israeli governments resolved in a joint communiqu to regard
as closed the incident which arose out of the actions taken by Citizens of Israel, which
infringed the fundamental rights of the State of Argentina. Eichmann was then tried in
Israel under Israels Nazi Collaborators Law. He was found guilty and the conviction was
subsequently upheld by the Supreme Court of Israel. On May 31, 1962, Eichmann went to
the gallows, the only person ever formally executed by the State of Israel.
ISSUE:
Whether or not the State of Israel has jurisdiction to punish crimes committed beyond its
borders.
HELD:
On the question of the jurisdiction of a state to punish persons who are not its nationals
for acts committed beyond its borders, there is as yet no intentional accord. It follows
that in the absence of general agreement as to the existence of such a rule of
international law, there is, again, no escape from the conclusion that it cannot be
deemed to be embodied in Israel municipal law, and therefore on that ground, too,
contention fails. The rules of the law of nations are not derived solely from international
treaties and crystallized international usage. In the absence of a supreme legislative
authority and international codes the process of its evolution resembles that of the
common law; its rules are established from case to case, by analogy with the rules
embodied on treaties and international custom, on the basis of general principles of law
recognized by civilized nations, and in the light of the vital international needs that impel
an immediate solution.
It is argued by the counsel that Article 6 of the Genocide Convention provides that a
person accused of this crime shall be tried by a court of competent jurisdiction of the
state in which it was committed. Article 6 imposes upon the parties contractual obligation
with future effect, obligations which bind them to prosecute crimes of genocide which
will be committed within their territories in the future. The obligation, however, has
nothing to do with the universal power vested in every state to prosecute for crimes of
this type committed in the past, a power which is based on customary international law.
The State of Israel was entitled, pursuant to the principle of universal jurisdiction and
acting in the capacity of guardian of international law and agent for its enforcement, to
try the appellant.