The Problems of the Eichmann Trial – Prof. M. MUSHKA T

pg 6 – Ever since Eichmann was apprehended and brought to Israel, doubts have been expressed from different sources as to his trial in Israel. These doubts can be summed up in the following manner:

(a) By enforcing an Israel law against war criminals, it is not possible to avoid infringing upon sanctified principles of justice, accepted by all, which forbid the condemnation of persons in accordance to laws which did not exist at the time when the crime was committed. Obviously, the Nazi crimes were committed at a time when the State of Israel and its laws did not yet exist.

(b) The Israel law punishing crimes against the Jewish people does not consider the fact that these cnm~s infringe upon the principles of international law, i.e. that they are crimes against humanity, and not specifically against Jews, and the application of Israel law cannot therefore be free from feelings of vengeance, particularly since the accused was brought to Israel by illegal means.

( c) Israel should be satisfied in interrogating the accused, and should then hand him over for judgment to an international or a German court, for, the State of Israel being a Jewish state, its atmosphere is not 6 conducive to a just and open trial in the given case.

By the ruling of the Security Council regarding this dispute the right of Israel to try and punish Eichmann was confirmed. Since there is no State in the world apart from Israel which has decided to bring Eichmann to trial, there is no room to question its jurisdiction; moreover as there is no qualified international court existing, such opposition could only be construed as an effort to impede the bringing of the accused to bar.

The application of the Israel law to Eichmann prevents in this case the paralysis of international law concerning the procecution of war criminals. Not only does it not infringe upon the legal principles accepted by all, but on the contrary, it helps to respect them and carry them out.

It is true that the State of Israel is a new political body, having no traits in common with the political body existing on its territory before its creation, it is also true that all its laws are an integral part of a new judicial system, related to the emerging of the State of Israel as a new sovereign unit. But it cannot be denied that in certain domains, the State of Israel is the heir of rights which were related to the mandatory territory and to the sovereign power, whose obligation was to further here the building of the “National Home” . The State of Israel is the continuation of the “National Home”, whose construction began under the Mandate; it is thr:: fruit of the efforts and of the struggle to carry out the Mandate’s provisions and to transform it into a sovereign Jewish State. The activity of the Nazis was directed against the interests of the “Home” as a nucleus of a Jewish State-by way of concentrating considerable numbers of Jews-and as a territory governed by one of the main allies in the war against the Axis: Great Britain.

pg 7 According to the principle of the individual responsibility of war criminals and to the principle of universality regarding their being brought to trial, trials of war criminals were held at the end of the Second World War, not only in the courts of states against whom or against whose citizens war crimes had been committed, but also in the courts of states which decided to try these criminals as an expression of their solidarity in bringing them to justice, this being their contribution in reinforcing peace.

pg 7 – It is also known that the territorial principle, i.e. the trying of criminals on the territory of the state where the crimes were committed, came into existence also because of the fact that it is easier to carry out the investigation on this territory, by taking down testimonies and collecting other material. Now, the greatest concentration of persons who survived extermination and who can testify as to the methods by which the “final solution” was carried out, is to be found in Israel. Here are also located the archives of the “Yad W ashern” Remembrance Authority which are one of the basic archives of its kind, containing documents directly concerned with the functioning of the Nazi apparatus headed by Eichmann.

pg 8 – The judicial bodies of Israel have not only the right but also the duty to try him in accordance with the law concerning these crimes, a law which is also in exact accord with international law, binding on all countries. There is no doubt that they will use their authority and will fulfill their obligation not only in the name of the Jewish people and of the sovereign State of that people, but also in the name of other nations, of the family of nations, of human conscience and justice.

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