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Eichmann vs.

Attorney-General of Israel, SC of Israel (1962)


Facts:
Prior to the outbreak of World War II, the Appellant was a member of the Austrian SS
and later volunteered for a position with the Head Office of the Security Service (SD)
in Berlin. When the SD merged with the State Secret Police (Gestapo) to form the
Head Office for Reich Security (RSHA), the Accused occupied the role of Special
Officer of Zionist Affairs He was transferred to Vienna in 1938 to administer the
Central Office for the Emigration of Austrian Jews. His success was such that
approximately 150,000 Austrian Jews were forced to emigrate and he was appointed
head of the new Reich Central Office for Jewish Emigration in October 1939.
From the outbreak of the War to mid-1941, the Accused devised and carried out the
mass deportation of Jewish persons from his role as the Special Referent for
Emigration and Evacuation within the RSHA and explored the possibility of setting
up a slave Jewish state in Madagascar.
In early 1942, the Accused was appointed the Referant of the RSHA in matters
connected to the Final Solution. In implementing the Final Solution, the Accused
received information as to the number of persons to be expelled, organized the
transfer of money from evacuated Jews for the disposal of the SS, and oversaw the
handling of the transport of Jews, not only in the Reich but also in other countries. In
particular, he headed the Eichmann Special Operations Unit in Hungary and did his
utmost to carry out the Final Solution. These "Transport Jews" were taken to
concentration camps and those who were unfit for hard labour were exterminated
immediately.
In autumn 1942, a cover up effort was begun as bodies in mass graves were burned
in an effort to hide the slaughter. The concentration camps were evacuated the
Accused in particular was responsible for all administrative matters connected with
the Terezin Ghetto and the camp at Bergen-Belsen.
Issues:

Is the Law of 1950 contrary to the principle of non-retroactivity of criminal law


or to the principle of territorial sovereignty?

Does the Law of 1950 conflict with the principle of territorial sovereignty?

Can the Appellant rely on the Act of State doctrine to excuse his criminal
responsibility?

Ruling:

There is no rule of general customary international law, which prohibits the


enactment of retroactive penal legislation. Further, the argument that to punish an
individual for conduct which was not yet criminal at the time of its commission
would be unethical loses its force in face of the odious crimes committed by the
Appellant. The Appellants contention that the Law of 1950 is therefore contrary to
the principle of non-retroactivity and cannot therefore apply to the Appellant is
rejected.
Furthermore, there is no rule of general customary international law that the
principle of territorial sovereignty prohibits the enactment of a criminal law
applicable to extra-territorial crimes committed by a foreign national. The
Appellants second ground of appeal must also be rejected.
These findings are reinforced by positive international law: the crimes for which the
Appellant was convicted were international crimes under international law entailing
individual criminal responsibility at the time that they were committed and their
universal character is such that each State is vested with the power to try and
punish anyone who assisted in their commission.
Finally, the Appellant contends that his crimes were Acts of the State, the
responsibility for which rests with the State alone and another State has no right to
punish the person who committed the act, save with the consent of the state whose
mission he carried out. This ground of appeal was rejected by the Supreme Court as
there is no basis for applying the doctrine to acts prohibited by international law,
particularly in cases of such heinous international crimes. This was affirmed by the
International Military Tribunal at Nuremberg.