PART V PART VI STATE RESPONSIBILITY THE INDIVIDUAL IN A—NATURE AND KINDS OF STATE INTERNATIONAL LAW RESPONSIBILITY A—IN GENERAL VII.—For Wrongs Unconnected with Contractual Obligations I.—Position of Individuals in International Law. Human Rights and Freedoms j.—Acts and Omissions of State Organs and Officials [SSC also PART I: IV; and PART VIII: B, VII.)

State responsibility—Nature and kinds of—For wrongs uncon- The individual in international law—In general—Position of— nected with contractual obligations—Acts of State officials— Responsibility for war crimes, genocide, and crimes against Abduction_Reparation_Nature of. humanity—Effect upon individual of irregular apprehension— Whether individual direct beneficiary of International law—Right v. Eichmann). See p. 5 (Attorney-General of Israel of State in which apprehension occurred and of national State to waive claim arising therefrom—Relevance of extradition proce dure—Human rights and freedoms—European Conventior for Protection of—Right to freedom and personal security—Applica tion of Convention by courts of State not a party.

ATTORNEY-GENERAL OF THE GOVERNMENT OF ISRAEL V. ADOLF EICHMANN.’

Israel, District Court of Jerusalem. December 12, 1961. (Landau J., President; Halevi and Raveh JJ.) Supreme Court (sitting as a Court of Criminal Appeal). May 29, 1962. (Olshan J., President; Agranat J., Deputy President; Silberg, Sussman and Witkon JJ.) SuMMARY.-—On May II, 1960, Adolf Eichrnann was abducted from Buenos Aires, Argentina, where he had been living since 1950 under the assumed name of Ricardo Kiement. After signing a letter purporting to consent to trial in Israel, he was removed to Israel by members of the Israel Secret Service. On May 23, the Prime Minister of Israel announced that Eichmann had been found and would be put on trial for his part in the “Final Solution “. The Government of Argentina protested that the capture was a violation of Argentine territorial sovereignty, for which it alleged that the State of Israel

The report printed below comprises a summary of the case and the full English texts of the judgments of the District Court of Jerusalem and the Supreme Court of Israel. The summary has been prepared by Miss A. Munkmam. The English texts of the full judgments are translations prepared in the Ministry of Justice of Israel anrl revised by Mr. P. Elman, of that Ministry. The references to the original law reports in 1-lebrew arc given at pp. 276 and 342, below.

5 EICHMANN CASE: SUMMARY 7 6 TilE INDIVIDUAL IN INTERNATIONAL LAW be resolve to regard as closed of the action, and between the two countries will advanced, was responsible by reason of its express approval the incident which arose out of the action taken by citizens of Israel, asked for Eichmann’s return and the punishment of those responsible which infringed the fundamental rights of the State of Argentina.” for the violation of Argentine law. In a Note of June 3, the Govern almost a year. The trial of ment of Israel attributed the capture to a “volunteer group” and The pre-trial investigation lasted on April xi, expressed its regret if it had “violated Argentine law and interfered Eichmann by the District Court of Jerusalem began August 14. Eichmann was charged with with matters within the sovereignty of Argentina “. Similar expres 1961, and continued until and Nazi (Punishment) Law, sions of regret, and references also to the lofty motives and the offences under the Nazi Collaborators i of historical and ethical factors involved, were made in a personal 5710/1950, Section (a) which provides: lettt:r from Mr. Ben Gurion, the Israel Prime Minister, to Mr. “A person who has committed one of the following offences— Frondizi, President of Argentina. “i. done, during the period of the Nazi régime, in an enemy The dispute, however, failed to be resolved through normal country, an act constituting a crime against the Jewish people; diplomatic channels, and Argentina presented a complaint to the “2. done, during the period of the Nazi régime, in an enemy Security Council of the United Nations requesting an urgent meeting country, an act constituting a crime against humanity; the of the Second World War, in an to consider the violation of its sovereign rights.1 At the meeting of “3. done, during period enemy country, an act constituting a war crime; the Security Council held on June 22, 1960, the Argentine representa tive emphasized that Argentina had protested against a violation is liable to the death penalty.” of its sovereignty by the unlawful exercise of foreign authority Section i (b) defines these offences as follows: had within its territory—to which it was irrelevant that Eichmann against the Jewish people’ means any of the following its “‘Crime been living there under an assumed name and in breach of acts, committed with intent to destroy the Jewish people in whole national laws—rather than against a violation of the general rules or in part: governing territorial asylum or political refugees. He submitted a (i) killing Jews; draft resolution (subsequently approved—with minor amendments— “(ii) causing serious bodily or mental harm to Jews; by eight votes to nil, with two abstentions) which, while disclaiming “(iii) placing Jews in living conditions calculated to bring about any condonation of the crimes of which Eichmann was accused, their physical destruction; (iv) to prevent births among Jews. declared that “acts such as that under consideration, which affect imposing measures intended the sovereignty of a Member State and therefore cause international of the following acts: may, if repeated, endanger international peace and security”, “‘Crime against humanity’ means any friction, starvation or deportation and the Government of Israel “to make appropriate murder, extermination, enslavement, and requested against any civilian population, and with the Charter of the United Nations and other inhumane acts committed reparation in accordance persecution on national, racial, religious or political grounds. “. The Argentine representative the rules of international law “‘War crime’ means any of the following acts: murder, ill- declined to specify what form of reparation would be” appropriate “, to forced labour or for any other purpose, of the treatment or deportation and it appeared to be the view of most representatives that civilian population of or in occupied territory; murder or ill-treatment resolution itself and the expressions of regret by the Government of of prisoners of war or persons on the seas; killing of hostages; plunder Israel constituted, in the special circumstances, “appropriate of public or private property; wanton destruction of cities, towns adopted, the hope was not by military necessity.” reparation “. In the resolution as finally or villages; and devastation justified relations between Argen expressed that “the traditionally friendly Section 3 (a) provides: “. (The full text of the resolution tina and Israel will be advanced person who, during the period of the Nazi régime, in an enemy of the District Court.2) “A appears in paragraph 40 of the judgment was of, or held any post or exercised any function issued on country, a member The dispute was finally closed by a joint communiqué in, an enemy organization, is liable to imprisonment for a term not : August 3, 1960, by the Argentine and Israel Governments exceeding seven years.” by a desire to “The Governments of Argentina and Israel, animated Section 3 (b) defines “enemy organization” as of the Security Council of June 23, 1960, give effect to the resolution of persons which, under Article of the Charter of the was expressed that the traditionally friendiy relations “a body 9 in so far as the hope International Military Tribunal annexed to the Four-Power Agree 1945, war criminals, has Official Records, T5th year, Supplement, April, May and June ment of August 8, on the trial of the major Security Council, judgment of that Tribunal, to be a criminal xg6o, p. 27. been declared, by a See p. 58, below. organization.” - See p. 59, below. EICHMANN CASE: SUMMARY 9 8 THE INDIVIDUAL IN INTERNATIONAL LAW such as sudden mass arrests and torture in camps like Dachau and’ of “ superior orders “—otherwise Section 8 excludes the defence of the mass persecution of 20,000 Criminal Code Ordinance, Buchenwald; the organization available under Section i (b) of the Israel on the night of November 9—b, order of a competent Jews from Germany and Austria 1936, where an act is done “ in obedience to the the social and unless the 1938 (the “Crystal Night”); the organization of authority which he [the accused] is bound by law to obey, as a sub-human the plea economic boycott of Jews and their designation is manifestly unlawful “. Section ii, however, permits order racial group; and the application of the “Nuremberg Laws “. to be taken into account in determining punishment (though subject The fourth Count detailed the devising by the accused, as head to a minimum of 10 years’ imprisonment for offences under Section i). of the Department for Jewish Affairs of the Gestapo in Berlin, of The indictment contained 15 Counts. Counts i to 4 related to measures to prevent childbearing among Jews in Germany and crimes against the Jewish people. The first Count alleged that occupied territories, including orders for compulsory abortion in Eichmann caused the killing of millions of Jews in his capacity as Theresienstadt concentration camp and the ghetto of Kovno, and head of the Gestapo Department (numbered successively IV D4, devising measures for the sterilization of the offspring of mixed IV B4, IV A4) in Berlin responsible for the physical extermination marriages. of the Jews—the “final solution of the Jewish problem “—the Counts 5 to 7 related to crimes against humanity. The fifth duties of which were to locate, deport and exterminate the Jews of Count alleged the murder, extermination, enslavement, starvation Germany and of other Axis countries and occupied areas, in exter and deportation of civilian Jewish populations in Germany, the Axis mination camps (including Auschwitz, Chelmno, Belzec, Sobibor, countries and the occupied areas during the period from 1939 to 1945. Treblinka, and Majdanek). In this capacity he gave instructions to The sixth Count alleged persecution of Jews on national, racial, local Gestapo commanders in Germany, to central authorities religious and political grounds. The seventh Count alleged the directed by him in Berlin, Vienna and Prague, to advisers specially spoliation of the property of Jews in Germany and in Axis and appointed from his department to deal with Jewish affairs in the occupied and de facto controlled territories, by inhumane measures offices of the Security Police and S.D. in occupied areas, and in the involving compulsion, theft, terrorism and torture—including the offices of German diplomatic representatives in the other Axis establishment, organization and operation of Central Authorities for countries (in co-operation with the special department of the the Emigration of Jews in Vienna (from the date of the entry of the German Foreign Ministry dealing with the Jewish problem). In Nazis into Austria in March 1938), in Prague (from the invasion of Poland he committed acts of uprooting, expelling and exterminating Czechoslovakia in March 1939) and in Berlin (from 1939). Through the population in co-operation with the Einsatzgruppen, operating these authorities the property of Jews in those countries was trans in the wake of the invading German army; he deported thousands ferred to German control, compulsory payments were levied on those of Jews from Germany, Austria and Czechoslovakia to ghettos in deported, and the property of those murdered was stolen. Riga, Kovno and Minsk, to be later exterminated. He caused the Count 8 alleged war crimes: causing the ill-treatment, deporta deaths of hundreds of thousands of Jews in forced labour camps tion and murder of Jewish inhabitants of States occupied by Germany through labour, torture and starvation in Germany and occupied and other Axis States. conditions. In countries, or in ghettos under cruel and inhumane Counts 9 to 12 alleged crimes against humanity in Eichmann’s Group” in 1944, as head of the “Eichmann Special Action capacity as officer in charge of the” evacuation “of civilians: deport Budapest, he caused the killing of half a million Hungarian Jews ing more than half a million Polish civilians during the period from by their deportation to Auschwitz. 1940 to 1942; deporting more than 14,000 Slovenes in 1941; deport In the second Count it was alleged that during the period from ing tens of thousands of gypsies to extermination camps in German- living 1939 to 1945, Eichmann placed many millions of Jews in occupied regions in Eastern Europe, deporting ioo children of the conditions calculated to bring about their physical destruction—in village of Lidice, in Czechoslovakia, to Poland and their murder forced labour camps, ghettos, transit camps, and transportation there. under cruel and inhumane conditions. Counts 13 to 15 alleged membership of a hostile organization: The third Count included causing serious physical and mental the Schutzstaffeln der N.S.D.A .P. (S.S.), the Sicherheitsdienst des harm to millions of Jews by enslavement, starvation, deportation Reichfiihrers S.S. (S.D.), the Geheime Staatspolizei (Gestapo)—all and persecution and by detention in ghettos, transit camps and declared criminal organizations by the International Military concentration camps in conditions designed to cause their degrada Tribunal at Nuremberg. of rights as human beings, and to suppress tiwl, deprivation their For the most part the facts alleged were not disputed. However, them and cause them inhumane sufferings and torture—by means LAW EICHMANN CASE: SUMMARY II io THE INDIVIDUAL IN INTERNATIONAL the definition given by the International Military Tribunal. The of the Court was challenged on a number of grounds: the jurisdiction Court quoted. from the Advisory Opinion of the International Court Nazi Collaborators (Punishment) Law could not, that the Nazi and the Genocide Convention1 that “the principles under law, apply to a citizen of a foreign State, of Justice on by a rule of international lying the Convention are principles which are recognized by civilized ex post facto penal legislation prescribing as that it constituted nations as binding on States, even without any conventional before the State of Israel came into existence; offences acts done and that the Convention was intended to be “universal territorial sovereignty restricts the right to obligation” that the principle of “ was committed, in scope [21 There was therefore no doubt that genocide as recog punish an offence to the State in which the offence question were, nized as a crime under international law, ex tunc, and therefore which the offender belongs; that the acts in or to contended jurisdiction over it was universal. Although Article 6 expressly time of their commission, Acts of State. It was also at the exercise it, assigned jurisdiction either to the State on whose territory the crime if the Court did have jurisdiction it should not that even without was committed or to an international tribunal, it did not exclude Eichmann had been brought within the jurisdiction since from universal jurisdiction. The Convention had two aspects: the confirma and in violation of international law (his abduction his consent apply tion of certain principles as established rules of customary interna that if the Court did assume jurisdiction it should Argentina); was tional law; and the determination of conventional obligations period of prescription (15 years); that Eichmann the Argentine the between the parties for the future. Article 6 established a compulsory who acted under superior orders; and that a minor official minimum, which did not affect the existing jurisdiction of States and feeling affinity with the victims of the Judges, being Jews under customary international law. he was charged, were psychologically incapable crimes with which The International Military Tribunal had stated that crimes fair trial. (This last objection was rejected in of giving him a against humanity and war crimes (as defined in Article 6 of the 6, April 17, 1961.) Decision No. 3, Session Charter of the I.M.T.) were “the expression of international law Court rejected all these arguments (in paragraphs The District existing at the time of its [the Tribunal’s] creation “, while the of its judgment—pp. 20—79 and 253—272, 4 to 53 and 216 to 243 United States Military Tribunal at Nuremberg in the Justice Trial4 follows: below), and held as the I.M.T. Charter must be deemed declaratory of the international law to municipal statutory law.— said that The relationship of principles of international law in view of its recognition as such by international law universally recognized are incor The principles of the General Assembly of the United Nations. The penal jurisdiction of Israel; and it is a principle of statutory porated into the law of States over “foreign offenders” was not limited by any prohibi-. there is a presumption that a statute is not interpretation that tion of retroactivity: the International Military Tribunal had with international law. But in case of such a intended to conflict stated that “the maxim nullum crimen sine lege is not a limitation is absolutely binding on the courts: “The conflict, the statute of sovereignty, but is in general a principle of justice In respect effect to the law of the Knesset, and we cannot Court has to give of these crimes, generally recognized as violations of the basic that this law conflicts with the principles of entertain the contention principles of humanity and the rules of law, the plea of retroactivity international law.” International Military Tribunal and by international law.—The Court went on to had been rejected by the Criminal jurisdiction in courts. Nazi Collaborators (Punishment) Law municipal affirm that the Nazi and Israel also could assume jurisdiction on the basis of the protective of international law defining the criminal conformed to the principles and passive personality principles. There existed the necessary “links” crimes were both universal in character jurisdiction of States: the State of Israel and the crimes defined in the Law; a exterminate the Jewish people, so that between the and specifically intended to the postulated an intention to under both the universality and “crime against Jewish people” Israel might assume jurisdiction in part; and the connection protective principles. The crimes exterminate the Jewish people in whole or the passive personality and the State of Israel constituted an on crimes defined by international between the Jewish lX’01)1e and defined in the Law were patterned integral part of the law of nations, proclaimed by the Declaration of the Jewish people “ followed the agreements: the “ crime against Convention for the Preven the Establishment of the State of Israel in 1948, the United Nations definition of the crime of genocide in the Genocide adopted by the General Assembly Resolution of November 29, 1947, calling for the tion and Punishment of the Crime of December 1948 “ crimes [1 the Convention on Genocide: Reports, 1951, i; Inter United Nations General Assembly on 9, Reservations to I.C.f. p. the definitions of national Law Reports, x8 (195x), p. 364, at p. 370.] humanity” and “war crimes” followed [2 against Military Tribunal Ibid., at p. 370.] Charter of the International In re Goering and Others: Annual Digest, 13 (1946), p. 203, at p. 207.] those crimes in the of [ No. 10; the offence of “membership [4 In re Altstötter and Others (Justice Trial): ibid., i (x9), p. 278.] arrd in Control Council Law [6 Council Law No. to and Loc. cit., at p. 208.] an enemy organization” followed Control EICHMANN CASE: SUMMARY 13 12 THE INDIVIDUAL IN INTERNATIONAL LAW establishment of a Jewish State in Palestine, and its subsequent a State to give him protection against its will by concealing his recognition. The plan of extermination included those Jews living identity. at that time in Palestine, and was one of the causes of the establish Prescription under Argentine law.—The jurisdiction of the Israel ment of the State; half of its citizens were recent immigrants from courts derived from the violation of Israel law, to which Argentine Europe and had lost relatives in the massacre there. It was irrelevant law (under which the period of prescription had lapsed shortly that the State of Israel did not exist at the date of the commission before the abduction) had no application. of the crimes in question: the protective principle confers jurisdic The Court examined Eichmann’s career from 1932, when he tion in respect of interests existing at the date of the enactment of joined the Austrian S.S., underwent training in Germany and the law—in this instance the defence of the Jewish people by the volunteered for service in 1934 with the Berlin Head Office of the punishment of those responsible for the massacre. A new State may Security Service (S.D.) where he was engaged in intelligence work try crimes committed even outside its territory before its establish first in the freemasonry and later in the Jewish sections. After the ment where, in spite of a change of sovereignty over territory, there annexation of Austria in March 1938, he was sent to Vienna to exists a continuity of law: the Nazi and Nazi Collaborators administer the Centre for the Emigration of Austrian Jews—which (Punishment) Law may be regarded as filling a gap in the laws of dealt with forced emigration and dispossession of property—and Mandatory Palestine, protecting interests existing then, since the later to Prague and Berlin to establish and administer similar centres. Mandate itself constituted international recognition of the Jewish From the outbreak of war he was given the additional people. A still broader principle was applicable to genocide: the tasks of organizing transport from the Reich to Poland, for the Nisco Plan, right of the injured group to punish offenders derived directly from the deportation of Jews from the annexed eastern territories—in connection the crime committed against them, and only its want of sovereignty with plans for the resettlement of these areas with people denied it the power to punish; if the injured group or people there of German origin, deportation of Jews from Stettin to Poland, expulsion after achieves political sovereignty in any territory, it may exercise of Jews from the Saar Palatinat and Baden to unoccupied France, such sovereignty for the enforcement of its natural right to punish and the devising of the abortive Madagascar Plan. In March 1941 he the offender who injured it. And, in any event, no specific rule of was appointed head of Department IV B4 of the Gestapo, international law had been shown denying the power of Israel to in charge of “Jewish affairs and Evacuations “. In June 1941 he was informed of order try the crime in question. the for extermination, the “final solution “, and was Act of State.—The Court relied on the repudiation of this defence thenceforward respon sible for giving instructions for its the International Military Tribunal, by the United States Military execution—through local Gestapo by commanders in Germany, advisers from his Tribunal in the Justice Trial,th] and in the formulation of the Nurem department attached to local S.D., and German diplomatic representatives in occupied berg Principles by the International Law Commission (Principle and Axis territories—and for transportation, under inhumane conditions, No. the General Assembly Resolution of 1946 on the crime of 3), to extermination camps. In regard to the Eastern occupied and the Genocide Convention (Article 4). territories, genocide, the Court found that he was connected Abduction.—Relying on numerous decisions of courts of England, with the Einsatzgruppen carrying out massacres there, and later with the introduction of Israel and the United States of America, the Court said that it was gas and the use of Zykion B at Auschwitz. There however, established rule of law that a person being tried for an offence was, no an administrative connection between his laws of a State may not oppose his trial by reason of the department and the exterm against the ination camps, but his department did his arrest or of the means whereby he was brought control Theresienstadt and illegality of Jewish detainees in Bergen-Belsen, jurisdiction of that State, whether the illegality was under and he gave orders for the within the termination of pregnancies in Theresienstadt. The or international law. A violation of sovereignty constituted Court rejected municipal his contention that he was merely a “small cog” in the extermina international tort, giving rise to a duty to make reparation which an tion machine, finding that he was the head of the department of the waived by the State injured, and the accused could not might be RSHA (Reichssicherheitshauptamt) engaged in carrying out the State had waived—as Argentina had done. claim rights which the “final solution” in accordance with general directives but having from asylum given by a sovereign There is no immunity derived wide discretionary powers in planning; that the execution of the person has been extradited for a State, except in the case where a programme gave him personal satisfaction; and that the defence of tried (the principle specific offence not the one for which he is being superior orders was only available where the orders were not event the accused could not compel of specialty); and in any “manifestly unlawful “, which the order for extermination mani festly was. ( In re AUstotier and Others: Annual Digest, 54 (1947), p. 278.] CAS1: SUMMA1 15 LAW EICHMANN THE INDIVIDUAL IN INTERNATIONAL 14 law, it is.the duty of the court to give preference to and against the Jewish international Eichmann was therefore found guilty of crimes to apply the municipal statute; where the statute is equivocal it must respect of his participation people (Counts I to 4 of the indictment) in be construed in accordance with the rule of public international law. comprehensive nature of the in the “final solution “. In view of the in law.—The principle nullum with knowledge of Retroactive legislation international whoever collaborated in the extermination lege, in so far as it prohibits penal crime, to the extermina crimen sine lege, nulla poena sine plan, and in its furtherance, was an accomplice not yet become a rule of the of the extent of legislation with retroactive effect, has of all its victims from 1941 to 1945, irrespective by many States in tion privy to the plan customary international law: though embodied his participation. Eichmann was from June 1941 and criminal codes, it is not universally accepted therefore an accomplice in their constitutions and played a central part in it, and was a rule of statutory interpretation, and hence it is not were based only on his except as all its aspects; even if his responsibility Israel by virtue of international law. However, with all its elements. embodied in the law of personal participation, he had been concerned there was no moral justification for preventing the application of Centres and in the deportations before His part in the Emigration that the Israel legislation. was treated as a crime against humanity; before June 1941 in whole or Criminal jurisdiction over acts committed in a foreign country by the required intent—to destroy the Jewish people date against human foreign nationals—The majority of the Judges of the Permanent part—was lacking. He was also convicted of crimes that in Centres, deporta Court of International Justice in the Lotus case111 recognized ity (Counts to for his activities in the Emigration that the 5 ) of property of those there is no rule of customary international law to the effect tions and the “final solution “. The plunder to an act committed in a a crime against humanity enactment of a criminal law applicable Jews forced to emigrate or deported was conflicts with the principle of linked with other acts of foreign country by a foreign national when committed by means of terror or no such rule is deemed incorporated it was a result of those acts, territorial sovereignty. Therefore violence as defined in the Law, or when And if such a rule existed, its violation would be process, as was the plunder in the law of Israel. so that it was part of a comprehensive deemed a violation of the rights of the State to which the accused Emigration of those who were deported by the Centres for Jewish belonged—not of his own rights, unless rights were vested in him by and exterminated. the of West Germany had refused to of war crimes (Count 8) for the treaty—and Government Eichmann was further found guilty to try him. murder, in which he took part claim the right acts of persecution, deportation and Nazi (Punishment) Law of occupied territories; and of Conformity of the Nazi and Collaborators during the war, of the populations of international law.—The crimes defined in this law to 12) for the deportation of with principles crimes against humanity (Counts 9 been international crimes, entailing in 1941, of gypsies, and must be deemed to have always Polish civilians from 1940 to 1942, of Slovenes law is and guilty of member individual criminal responsibility: customary international of ioo children from Lidice in Czechoslovakia, Law and develops by analogy and by 15) for membership of the analogous to the Common ship of enemy organizations (Counts 13 to by civilized nations; for membership before reference to general principles of law recognized S.S., S.D. and Gestapo from May 194o—not of crimes recognized by applies a period of prescription these crimes share the characteristics that date, as Section 13 (b) of the Law law (acts which damage vital international so far as he was both a member and customary international (20 years) to these offences—in interests, impair the foundations and security of the international in crimes in that capacity. He was sentenced personally participated community, violate universal moral values and humanitarian to death. of criminal law of civilized Court against both conviction principles underlying the systems Eichmann appealed to the Supreme of universal jurisdiction over “crimes lack of jurisdiction under interna nations), and the principle and sentence, on the grounds of (including genocide and war crimes) similarly incapacity of the Judges of the District against humanity” tional law, the psychological in from a common vital interest in their suppression. The trial, and the error of the District Court derives Court to give him a fair in State prosecuting them acts as agent of the international community, a part greater than that of a minor official finding that he played reasons for administering international law. The limitation on the exercise of The Supreme Court gave the following the acts alleged. universal jurisdiction—that the extradition of the offender must rejecting his appeal. be offered to the State in which the offence was committed— of international law to municipal law.—According first The relationship English law, cannot apply here, as the Government of West Germany had refused Israel, which is identical on this point with to the law of law are received to demand Eichmann’s extradition. This limitation is not designed following rules apply: principles of international trial the that law only after they to prevent a violation of territorial sovereignty, but to ensure into the municipal law and become part of recognition; where a conflict acquired general international Series A. No, ro, p. Annual DigesI, 4 (1927—1928), P• ‘53.1 ba.ve statute and a rule of {‘ P.C.I.J., ; exists between the provsions of a municipal SUMMARY i6 THE INDIVIDUAL IN INTERNATIONAL LAW EICHMANN CASE: is not an absolute con in the forum conveniens—which in this case is Israel, where the Act of Siate.—The Act of State doctrine to prohibited by majority of the witnesses reside and the bulk of the relevant docu cept, nor is there any basis for its application acts humanity, which are ments are gathered. Nor has there been any protest by any other the law of nations, especially crimes against order or ratify and therefore State in whose territory the offences were committed; and the fact outside the jurisdiction of a State to it is also excluded as a defence in that the crimes took place in and their effects extended to numerous involve personal responsibility; Article of the Charter of the countries drains the principle of territoriality of all content and respect of the crimes defined in 7 of the Nuremberg justifies the assumption of jurisdiction by Israel. No rule of interna International Military Tribunal (Principle No. 3 Commission) and in tional law or State practice requires an offer to extradite the offender principles formulated by the International Law It was no defence that at the to his national State. The contractual obligation of Article 6 of the Article 4 of the Genocide Convention. decrees of the Nazi Genocide Convention does not affect the universal power vested in date of the acts committed the anti-Jewish “ Final Solution” was never every State to prosecute offences committed in the past. The Court régime had the force of law: the in West German expressed agreement with the District Court in upholding its embodied in a law, and the dominant tendency also and jurisdiction on the basis of the protective and passive personality jurisprudence has been to invalidate ab initio discriminatory “norms” of Hitler’s principles. destructive decrees of the Nazi régime and Abduction.—The Supreme Court reiterated the conclusions of the own creation. Moreover, such decrees were not laws in the contempla these crimes or District Court, which were as follows: that, in the absence of tion of international law and could not validate extradition in accordance with an extradition agreement, the Court absolve their author from personal responsibility. of the order to carry will not investigate the circumstances in which the accused was Superior orders.—Within the framework independently, and even detained and brought within the jurisdiction; if such abduction is out the “Final Solution” Eichmann acted on him; therefore this defence could a violation of international law, the right violated is that of the exceeded the duties imposed of superior orders the Nazi and State aggrieved, not of the offender, and finds its solution on the not apply. In excluding the defence violated no rule of interna international level; the violation may be condoned and the claim Nazi Collaborators (Punishment) Law been agreed to by all States even waived, explicitly or by acquiescence; only the principle of specialty tional law. No such rule had ever sense, hence its exclusion gives a fugitive offender any right of immunity, and this does not in regard to war crimes in the narrowest Military Tribunal was no apply to Eichmann as he was not extradited under any extradition from the Charter of the International The defence, even when admitted, treaty; the Governments of Argentina and Israel had settled their departure from customary law. imminent danger to his life, and dispute before the indictment was presented; the rights of asylum required that the accused show of a desire to save his own life and and immunity belong to the country of asylum, not to the offender, that he carried out the tasks out of doing so—as stated in the and Argentina gave no asylum as it did not initially consent, and by because he saw no other possibility been shown by Eichmann. waiving its claim for Eichmann’s return finally refused, to grant him Einsatzgrujben Tria1111, this had not the Judges of the District Court to asylum. The Court rejected the argument that this applied only to The psychological incapacity of this contention, the Court adopted the a fugitive from justice fleeing the territory of a State already in try Eichmann.—Rejecting Court that “the judge, when existence and with jurisdiction to try him. Eichmann was a fugitive reply of the Judges of the District law, does not cease to be a human from justice from the point of view of the law of nations, since his dispensing justice in a court of human passions. Yet he is enjoined crimes were of a universal character, and jurisdiction to try him being, with human emotions and and passions, for were it not therefore automatically vested in the State of Israel on its establish by the law to overcome these emotions a criminal case which evoked ment as a sovereign State. The Court refused requests to examine so, no judge would ever be fit to try treason or murder or any whether the Government of Israel was a party to the abduction, as deep feelings and revulsion, such as true that the memory of the Holocaust even if this were established it could not benefit Eichrnann; it also other serious crime. It is very of his being, but once this case has refused to call the Ministers of Justice of Argentina and Israel to shakes every Jew to the depths is our duty to subdue even these emotions be examined as to the terms of the joint communiqué, on the been brought before us it ground that its terms were clear and unequivocal. Eichmann could as we sit in judgment . . not rely on Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms as vesting in him a right to freedom and personal security, as Israel was not a party to [1 In re Ohlendorf and Others (Einsatzgruppen Trial), decided by the United States i 656, at 667.] that Convention; and his abduction was no ground for denying the Military Tribunal at Nuremberg: Annual Digest, (x8), p. p. c&iipetence of the Court to try him once he was within the jurisdiction. DISTRICT COURT JUDGMENT 19 i8 THE INDiViDUAL iN INTERNATIONAL LAW has ways of its own, laid down by law and immutable, whatever JUDGMENT OF THE DISTRICT COURT the subject-matter of the trial. Were it not so, the course of law it must be adhered to December 12, 1961 and of procedure would be impaired, whereas punctiliously since it is in itself of great social and educational this Court on i. Adolf Eichrnann has seen arraigned before significance, and the trial would otherwise resemble a rudderless people, charges of unsurpassed gravity—crimes against the Jewish ship tossed about on the waves. crimes against humanity, and war crimes. The period of the crimes The purpose of every criminal trial is to investigate the truth of ascribed to him, and their historical background, is that of the the prosecutor’s charges against the accused who is on trial, and,, if Hitler régime in Germany and in Europe, and the Counts of the the accused is convicted, to mete out due punishment to him. Jewish indictment encompass the catastrophe which befell the Whatever requires clarification to achieve these ends must be which people during that period—a story of bloodshed and suffering examined at the trial, and whatever is foreign to it must be excluded will be remembered to the end of time. This is not the first occasion from the proceedings. Not only is any pretension to overstep these It that the catastrophe has been discussed in court proceedings. limits forbidden to the Court—it would be bound to end in complete was dealt with extensively by the International Military Tribunal failure. The Court does not possess the facilities required for investi at Nuremberg during the Trial of the Major War Criminals,t1 and also gating general questions of the kind referred’ to above. For example, at several of the trials which followed. This time, however, it has to describe the historical background of the catastrophe, a great occupied the central place in the proceedings, and it is this fact which mass of documents and evidence has been submitted to us, collected distinguishes the present trial from those which preceded it. Hence most painstakingly and certainly out of a genuine desire to delineate the also the trend to widen its range, noticed before and during as complete a picture as possible. Even so, all this material is but give, trial. The desire was felt—readily understandable in itself—to a tiny fraction of the extant sources on this subject. According to trial, a comprehensive and exhaustive “ passive for it within the limits of this our legal system, the Court is by its very nature ‘, historical account of the events of the catastrophe, and, in so doing, does not itself initiate the bringing of proof before it, as is the to emphasize also the signal feats of heroism of the Ghetto-fighters, custom with a commission of enquiry. In consequence, its ability to of those who mutinied in the camps, and of the Jewish partisans. describe general events is inevitably limited, As for questions of Others again sought to regard this trial as a forum to clarify questions principle which are outside the realm of law, no one has made us of great import, some of which arose from the catastrophe, while judges of them and therefore our opinion on them carries no greater others, of long standing, have now re-emerged more acutely because weight than that of any person who has devoted study and thought of the unprecedented sufferings which were visited upon the Jewish to these questions. people and the world as a whole in the middle of the twentieth These prefatory remarks do not mean that we disregard the century. How could this happen in the full light of day, and why was great educational value implicit in the very holding of this trial; it just the German people from whom this great evil sprang? Could both for those who live in Zion and for those beyond the confines of the Nazis have carried out their evil designs without the help given this State. To the extent that this result has been achieved in the them by other peoples in whose midst the Jews dwelt? Would it course of the proceedings, it is to be welcomed. Thus, the evidence have been possible to avert the catastrophe, at least in part, if the given at this trial by survivors of the catastrophe, who poured out Allies had displayed a greater will to assist the persecuted Jews? their hearts as they stood in the witness box, will certainly provide Did the Jewish people in the lands of freedom do all in their power to valuable material for the research worker and the historian, but as rally to the rescue of their brethren and to sound the alarm for help? far as this Court is concerned all these things are merely a by-product What are the psychological and social causes of the group-hatred of the trial. this ancient disease be cured, which is known as anti-semitism? Can 3. Before passing to the case itself, we desire to express our and by what means? What is the lesson which the Jews and other appreciation to counsel for both parties, who laboured in the nations, as well as every man in his relationship to others, must preparation of this case. The Attorney-General, Mr. Gideon Hausner, learn from all this? Other questions arise also, of various kinds, and his assistants, Dr. Y. Robinson, Mr. Y. Bar-or, Mr. G. Bach and which cannot even be fully enumerated. Mr. Z. Terlo, who helped him in the conduct of the trial, carried an the Court was 2. In this maze of insistent questions, the path of enormous burden on their shoulders to attain complete mastery of and remains clear. It must not allow itself to be enticed to stray the mass of legal and factual material prepared for them by the into provinces which are outside its sphere. The judicial process police investigators who toiled in a manner also deserving of praise. The Attorney-General himself emerged honourably from the dilemma [1 In re Goering and Others: Annual Digest, 13, (5946), p. 203.] JIJI)(xMiil’.Ji 21 LAW I)II1

of . in this Court, raises the preliminary question of the validity In England . . . the law of nations . . . is . . adopted in its international law in Israel and whether, in the event of conflict, it full extent by the common law, and it is held to be a part of the law is to be preferred to the law of the land. The law in force in Israel of the land . . . without which it must cease to be a part of the civilized resembles that in force in England in this regard. See Oppenheirn, world.’ International Law, vol. I (8th ed. by Lauterpacht, içj55), § 21a, at “The same applies to other countries, such as the United States of p. 39: America, France, Belgium and Switzerland, where the usages of inter national law have been recognized as part of the national law. . .“ Britain, the following points must be noted: “ (i) As regards Great (a) all such rules of customary International Law as are either universally With respect to statutory law, Justice Agranat said in High recognised or have at any rate received the assent of this country are Court Case No. 279/5 i (6 Piske Din 945, 966121): per se part of the law of the land. To that extent there is still valid in B. It is a well—known maxim that a municipal statute should——except England the common law doctrine, to which Blackstone gave expression where its contents require a different interpretation—be interpreted in in a striking passage, that the Law of Nations is part of the law of the accordance with the rules of public international law.” land.” And in Criminal Appeal No. 5/51 (5 Piske Din 1061131) Mr. Justice On the other hand, however (p. 41): Sussman said (p. 1065): (c) English statutory law is absolutely binding upon English courts, “It is a well-known rule that in interpreting a statute the Court even if in conflict with International Law, although in doubtful cases will as far as possible try to avoid a conffict between the municipei law there is a presumption that an Act of Parliament did not intend to and the obligations incumbent on the State by virtue of international overrule International Law. The fact that International Law is part of law. But this is only one of the canons of interpretation. That is to say, the law of the land and is binding directly on courts and individuals where we are dealing not with the Common Law but with a written does not mean that English law recognises in all circumstances the statute which expresses the will of the legislator, then the Court must supremacy of International Law.’” carry out the will of the legislator without considering if there exists a contradiction between the statute and international law. . . . Further A.C. 156 164) :12] See also Croft v. Dunphy [‘9331 (p. more, the Courts here derive their jurisdiction from municipal law and “Legislation of the Imperial Parliament, even in contravention of not from international law.” international law, is binding upon generally acknowledged principles of Our jurisdiction to try this case is based on the Nazi and Nazi the Courts of this country, for in these Courts and must be enforced by Collaborators (Punishment) Law, an enacted Law the provisions of of the Imperial Parliament cannot be challenged as ultra the legislation Court has to give effect to a law of the vires (Mortensen v. Peters).” which are unequivocal. The Knesset, and we cannot entertain the contention that this Law 70 C.L.R. 6o :[31 Also Polites v. Commonwealth of Australia (ig) conflicts with the principles of international law. For this reason “The Commonwealth Parliament can legislate on these matters in alone counsel’s first submission must be rejected. breach of international law, taking the risk of international complications. ii. We have, however, also considered the sources of international This is recognized as being the position in Great l3ritain. . . . The position law, including the numerous authorities cited by learned defence

. . . held that is the same in the United States of America. It must be counsel in his basic written brief upon which he based his oral Commonwealth Parliament legislation otherwise within the power of the pleadings, and by the learned Attorney-General in his comprehensive because it conflicts with a rule of international does not become invalid oral pleadings, and have failed to find any foundation for the conten though every effort should be made to construe Commonwealth law, Israel law is in conflict with the principles of international statutes so as to avoid breaches of international law and of international tion that Law comity.” law. On the contrary, we have reached the conclusion that the in question conforms to the best traditions of the law of nations. It is of importance not to confuse, as many do, the question of the supremacy municipal of International Law and of the direct operation of its roles within the [1 Stampfer v. Attorney-General: International Law Reports, 23 (1956), p. 284, former while fully affirming the latter. sphere. It is possible to deny the at p. 292.] [2 Annual Digest, 6 (1931-1932), p. 557.] [2 Amsterdam and Others v. Minister ofFinance: ibid., ig (5952), p. 229, at p. 233.) [3 • •.[3 Ibid., 12 (1943—45), p. soS, at p. 211.] Steinberg v. Attorney-General: ibid., r8 (‘95’), p. so.] DISTRICT COURT JUDGMENT 27 26 THE INDIVIDUAL IN iNTERNATIONAL LAW as defined by international law, that law has of view of international law, the power of the “With regard to crimes From the point of trying or punishing them. The recognition of them as con “ right to no means State of Israel to enact the Law in question or Israel’s are left on a dual stituting crimes, and the trial and punishment of the criminals, punish” is based, with respect to the offences in question, But whereas according to inter question and to the municipal law of each country. foundation: the universal character of the crimes in the criminal jurisdiction of municipal law is ordinarily Jewish national law their specific character as intended to exterminate the restricted to crimes committed on its terra firma or territorial waters people. In what follows we shall deal with each of these two aspects or its own ships, and to crimes by its own nationals wherever committed, separately. it is also recognized as extending to piracy committed on the high seas crimes under a person guilty of such piracy has 12. The abhorrent crimes defined in this Law are not by any national on any ship, because of any State. He is no longer a Israel law alone. These crimes, which struck at the whole of mankind placed himself beyond the protection against but hoslis humani generis and as such he is justiciable by any and shocked the conscience of nations, are grave offences national, far State anywhere: Grotius (1583—1645), ‘De Jure Belli ac Pacis’, vol. 2, the law of nations itself (delicta juris gentium). Therefore, so of cap. 20, 40.” from international law negating or limiting the jurisdiction § law is, in the 14. As early as 1625 Hugo Grotius, in his classic “De Jure Belli countries with respect to such crimes, international legisla had the basic question of the “right to punish” absence of an International Court, in need of the judicial and ac Pacis,” posed law—the very question which learned defence tive organs of every country to give effect to its criminal interdictions under international crimes before us. In Book Two, cap. 20, “De Poenis” and to bring the criminals to trial. The jurisdiction to try counsel raised he says, inter alia: under international law is universal. (On Punishment), of the forum 13. This universal authority, namely the authority “Qui punit, Ut recte puniat, jus habere debet ad puniendum, quod jus is deprehensionis (the court of the country in which the accused ex delicto nocentis nascitur.” the Corpus Juris actually held in custody), was already mentioned in In order that he who punishes may rightly punish, he must possess and the towns of (“ Civilis (see C. 3, 15, ubi de criminibus agi oportet) the right to punish, a right deriving from the criminal’s crime.”) the Middle Ages followed the practice northern Italy had already in In Grotius’s view, the object of punishment may be the good of criminals (banniti, vagabundi, of trying specific types of dangerous the criminal, the good of the victim, or the good of the community. be within their area of jurisdiction, assassini) who happened to According to natural justice, the victim may himself seek his amends in which the crimes in question were without regard to the place from the criminal who has offended against him, and it is also Vabres, Les Principes Modernes du committed (see Donnedieu de permissible for every pcron of integrity to inflict punishment upon 136). Maritime nations have also Droit Penal International, 1928, p. the criminal; but such rights have been limited by organized the principle of universal jurisdiction since time immemorial acted on society and conveyed to the courts of law. The learned author here crime is known in English law, piracy in dealing with pirates, whose adds the important words (the emphasis is ours): See Blackstone, Commentaries on the Laws of England, jure gentium. qui par regibus jus obtinent, jus “Of Offences against the Law of Nations “: Sciendum quoque est reges, et Book IV, Chap. 5, in Se aut subditos suos animadverted on habere poenas poscendi non tantum ob injurias “The principal offences against the law of nations, secl et ob eas quae ipsos peculiariter non tangunt, sed in are of three kinds... 3. commissas, as such by the municipal laws of England, quibusvis personis jus naturae aut gentium immaniter violantibus.” (At 68). Piracy.” p. It must also be known that kings and they who have rights equal or robbery and depredation upon the (“ “Lastly, the crime of piracy, to those of kings may demand that punishment be imposed not only for the universal law of society; a pirate being, high seas, is an offence against wrongs committed against them or their subjects but also for all such Inst. I 13), hostis humani generis. As, according to Sir Edward Coke ( wrongs as do not specifically touch them, but violate in extreme form he has renounced all the benefits of society and government, therefore, declaring the law of nature or the law of nations, in relation to any persons.”) and has reduced himself afresh to the savage state of nature, by all mankind, all mankind must declare war against him: And he goes on to explain: war against to community has a right, by the rule of self-defence, societati per poenas consulendi, quae initio Ut so that every in a “Nam libertas liumanae that punishment upon him which every individual would penes singulos fuerat, civitatibus ac judiciis institutis penes inflict invasion of diximus state of nature have been otherwise entitled to do, for any summas potestates resedit, non proprie qua aliis imperant, sed qua nemini his person or personal property.” (At p. 71.) parent. Nam subjectio aliis id jus abstulit.” Gentium [i] A.C. 586h1 (per Viscount by imposing See also In re Piracy Jure (“ For the liberty to serve the welfare of human society Sankey L.C.): penalties which, as we said, had originally belonged to individuals, has V since the constitution of states and courts resided in those with the [1 Annual Digest, 7 (1933—1934), p. 213, atIp. 225.] LAW DISTRICT COURT 29 28 THE INDIVIDUAL IN INTERNATIONAL JUDGMENT but because they his supporting reference to the supreme authority, not because they dominate others, Dissenting Opinion of Justice Moore taken this right are subject to no one. For subjection to government has in the Lotus case), upholds a clear exception with respect to” offences away from others.”) under the law of nations “. See also ibid., paragraph ii (a) (p. 33): of the It is therefore the moral duty of every sovereign State, ‘I’lic commission of particular acts, regardless of the character of kings “, to enforce the actors, may be “kings and any who have rights equal to those of so detrimental to the welfare of the international of the crime society that its international law may either clothe a with the the natural right to punish, possessed by the victims State have “violated privilege of punishing the offender, or impose upon it the obligation to whoever they may be, against criminals whose acts endeavour to do so . . . In both situations, it is not unscientific to declare law of nature or the law of nations “. The father in extreme form the that he is guilty of conduct which the law of nations itself brands as the foundations for the future definition of international law thus laid internationally illegal. For it is by virtue of that law that such sovereign a “crime under the law of of the “crime against humanity” as acquires the right to punish and is also with the duty such crimes. burdened to prevent nations” and for universal jurisdiction in regard to or prosecute.” des Ge’ns (1758) Book I, 15. Vattel says, in his book Le Droit Glaser, in Infraction Internationaje (1957), defines each of the chap. 19, paragraphs 232—233, znter alici: crimes dealt with here, especially the “crime against humanity” de punir, Ia Nature ne donne aux hommes et aux Nations le droit and, the “crime of genocide” as “infraction interncttioncde” or “Car ne peut punir que que pour leur defense et leur sflreté; d’oü ii suit que l’on crime d’ordre international” (p. 69), and says (at p. 31): ceux par qui on a été lésé. “Les infractions internationales sont soumises, aussi longtemps qu’une chaque Etat “Mais cette raison même fait voir, que si la Justice de juridiction criminelle internationale n’existe pas, au régime de la dans son territoire, doit en général se borner a punir les crimes commis réftression ou de Ia cométence universelle. Dans ce régime, les auteurs de règle ces scélérats qui, par la qualité & la fréquence pareilles être il faut excepter de la les infractions peuvent poursuivis et punis en quelque pays que leurs crimes, violent toute sflreté publique, et se déclarent ce soit, donc sans égard au lieu oü l’infraction a été commise: Lbi te habituellede les incendi ennemis du Genre-humain. Les empoisonneurs, les assassins, invenero, ibi Ic judicabo.” peuvent tre exterminés partout oit on les saisit; car us aires de profession les fonde Cowles, in “Universality of Jurisdiction over War Crimes,” in outragent toutes les Nations, en foulant aux pieds attaquent et California Law Review (i), pp. 177 el seq., in the commune. C’est ainsi que les Pirates sont envoyés a 33 states following mens de leur sflreté terms the reasons for the rule of law as to the of par les premiers entre les mains de qui us tombent.” “universality la potence jurisdiction over war crimes” which was adopted and determined Elements of International Law, 5th English Wheaton states in his by the United Nations War Crimes Commission (see Law Reports of 104 (the emphasis is ours): ed. (1916), p. Trials of War Criminals, vol. I, p. 53[’]): . . . to judicial power of every independent state. . extends. “The law of nations, “The general doctrine recently expounded and called ‘universality of punishment of piracy and other offences against the the jurisdiction over war crimes ‘... which has the support of the United whomsoever and wheresoever committed.” by Nations War Crimes Commission. . . and according to which every indepen and Applied Hyde in his International Law (Chiefly as Interpreted dent State has, under International Law, jurisdiction to punish not only paragraph 241 (p. 804) by the United States), vol. i, 2nd ed. (iq), in pit ates but also war criminals in its custody, regardless of the nationality writes: of the victim or of the place where the offence was committed, particularly State of an alien where, for some reason, the criminal would otherwise go unpunished “In order to justify the criminal prosecution by a by him in a place on account of an act committed and consummated Instances of the extensive use made by the Allied Military established that there is a close of its territory. . ., it needs to be Tribunals of the principle of universality of jurisdiction over war outside prosecutor, and one and definite connection between that act and the crimes of all classes (including “crimes against humanity “) will be the exercise of jurisdiction. which is commonly acknowledged to excuse found in Vols. 1—15 of the Law Reports of Trials of War Criminals. requisite connection is deemed to There are few situations where the i6. We have said that the crimes dealt with in this case are not is, however, apparent when the act of the exist.. . . The connection crimes under Israel law alone, but are in essence offences against which the law of nations itself renders internationally individual is one society the law of nations. Indeed, the crimes in question are not the or regards as one which any member of the international illegal independent creation of the legislator who enacted the Law for the is free to oppose and thwart.” who (in keeping with punishment of Nazis and Nazi collaborators, but have been defined It must be added that the learned author, rigid on the question in that Law according to a precise pattern of international laws and Anglo-Saxon tradition) is generally meticulously to crimes committed [1 oLthe limits of criminal jurisdiction with respect In ye Klein and Others (Hadaniar Sanatorium Case) Annual Digest, 13 (1946), ibid., 805, and 253.] by foreigners abroad (see also his further remarks, p. p. LAW DISTRICT COURT JUDGMENT 31 30 THE INDIVIDUAL IN INTERNATIONAL nations. The Article 6 of the Charter of the Nuremberg Tribunal provides, conventions which define crimes under the law of the pattern of the inter alia: “crime against the Jewish people” is defined on Prevention and or any of them, are crimes coming within crime of genocide defined in the Convention for the “The following acts, adopted by the the jurisdiction of the Tribunal for which there shall be individual Punishment of the Crime of Genocide which was “ against responsibility: Nations Assembly on December 9, 1948. The crime United of crimes humanity” and “war crime” are defined on the pattern (c) Crimes against humanity: namely, murder, extermination, the International and other inhumane acts committed against of identical designation defined in the Charter of enslavement, deportation, Nuremberg Court) any civilian population, before or during the war, or persecutions Military Tribunal (which is the Statute of the on the on political, racial or religious grounds in execution of or in connexion to the Four-Power Agreement of August 8, 1945, annexed Agree with any crime within the jurisdiction of the Tribunal, whether or of the trial of the major war criminals (the London subject for Germany of not in violation of the domestic law of the country where perpetrated.” ment), and also in Law No. io of the Control Council of an enemy Article II of Control Council Law No. io provides: December 20, 1945. The offence of “membership in the Judgment of as a crime: organization” is defined by the pronouncement I. Each of the following acts is recognized Charter, declaring the the Nuremberg Tribunal, according to its (c) Crimes against Humanity. Atrocities and offenses, including organizations “, and is organizations in question to be “criminal but not limited to murder, extermination, enslavement, deportation, 10. For purposes of or other inhuman acts committed against also patterned on Control Council Law No. imprisonment, torture, rape parallel articles on political, racial or religious we shall set forth in what follows the any civilian population or persecution comparison whether or not in violation of the domestic laws of the country side by side. grounds, and clauses where perpetrated.” Section i (b) of the Israel Law provides: Section i (b) of the Israel Law provides: “In this section: any of the following acts: the Jewish people’ means any of the following “‘War crime’ means ‘Crime against or ill-treatment or deportation to forced labour or for any with intent to destroy the Jewish people in whole “murder, acts, committed other purpose, of the civilian population of or in occupied territory; in part: murder or ill-treatment of prisoners of war or persons on the seas; (I) kiffing Jews. plunder of public or private property; wanton or mental harm to Jews; killing of hostages; (2) causing serious bodily of cities, towns or villages; and devastation not justified conditions calculated to bring about their destruction (3) placing Jews in living by military necessity.” physical destruction; among Jews.” of the Nuremberg Tribunal provides: imposing’ measures intended to prevent births Article 6 of the Charter () to the present case.) of (Sub-sections (5) to () have no relevance (b) War crimes: namely, violations of the laws or customs shall include, but not be limited to, murder, Convention for the Prevention and Punishment war. Such violations Article 2 of the or deportation to slave labour or for any other purpose provides: ill-treatment of the Crime of Genocide of cilivian population of or in occupied territory, murder or ill-treat of the following “In the present Convention, genocide means any ment of prisoners of war or persons on the seas, killing of hostages, or in part, a national, acts committed with intent to destroy, in whole plunder of public or private property, wanton destruction of cities, ethnical, racial, or religious group, as such: towns or villages, or devastation not justified by military necessity.” members of the group; Article II of Control Council Law No. io provides: (a) Killing of the group; Causing serious bodily or mental harm to members (b) War Crimes. Atrocities or offenses against persons or property (b) of life calculated (c) Deliberately inflicting on the group conditions constituting violations of the laws or customs of war, including, but not its physical destruction in whole or in part; limited to, murder, ill-treatment or deportation to slave labour or to bring about within the group.” (d) Imposing measures intended to prevent births for any other purpose, of civilian population from occupied territory, of war or persons on the seas, Israel Law also provides: murder or ill-treatment of prisoners Section i (b) of the private property, wanton acts: killing of hostages, plunder of public or against humanity’ means any of the following towns or villages or devastation not justified by “‘Crime or deportation destruction of cities, “murder, extermination, enslavement, starvation military necessity.” acts committed against any civilian population, and other inhumane grounds.” Section (b) of the Israel Law provides: on national, racial, religious or political 3 and persecution In this section, ‘enemy[’1 organization’ means: Law. The in the official English translation of the 1 The word “imposing” is used The Hebrew original is more properly translated as “hostile “.1 “ devising “. [‘ Hebrew is perhaps better translated as ‘ISTRICT COURT JUDGMENT 33 32 THE INDIVIDUAL IN INTERNATTO’ L LAW “Affirms that genocide is a crime under international law which “(i) a body of persons which, under Article 9 of the Charter of the the civilized world condemns, and for the commission of which International Military Tribunal annexed to the Four-Power Agreement principals and accomplices—whether private individuals, public of August 8, 1945, on the trial of the major war criminals, has been officials or statesmen, and whether the crime is committed on religious declared, by a judgment of that Tribunal, to be a criminal organization.” racial, political or any other grounds—are punishable: “Invites the Member States to enact the necessary legislation Charter of the International Military Tribunal Article 9 of the for the prevention and punishment of this crime; provides, inter alia: “Recommends that international co-operation be organized “At the trial of any individual member of any group or organization between States with a view to facilitating the speedy prevention and the Tribunal may declare (in connexion with any act of which the punishment of the crime of genocide, and,to this end, individual may be convicted) that the group or organization of which “Requests the Economic and Social Council to undertake the the individual was a member was a criminal organization.” necessary studies, with a view to drawing up a draft convention on the crime of genocide to be submitted to the next regular session of provides: Article io of the Charter further the General Assembly.” criminal by “In cases where a group or organization is declared On December 1948, the United Nations General Assembly authority of any signatory shall 9, the Tribunal, the competent national adopted unanimously the Convention for the Prevention and bring individuals to trial for membership therein have the right to Punishment of the Crime of Genocide. The Preamble and the first before national, military or occupation courts. In any such case the of the Convention read as follows: criminal nature of the group or organization is considered proved Article and shall not be questioned.” “The Contracting Parties, “Having considered the declaration made by the General Assembly of Control Council Law No. io provides: Article II of the United Nations in its resolution 96 dated ii December 1946, as a crime: (,) “ i. Each of the following acts is recognized that genocide is a crime under international law, contrary to the pirit “(d) Membership in categories of a criminal group or organization and aims of the United Nations and condemned by the civilized world; has infficted declared criminal by the International Military Tribunal.” “Recognizing that at all periods of history genocide on humanity, and Raphael great losses 17. The crime of “genocide” was first defined by “Being convinced that in order to liberate mankind from such an Lemkin in his book Axis Rule in Occupied Europe (iç4.) ifl conse odious scourge, international co-operation is required, quence of the methodical extermination of peoples and populations, Hereby agree as hereinafter provided: and primarily the Jewish people, by the Nazis and their satellites “Article I (after the learned author had already moved, at the Madrid Interna tional Congress for the Consolidation of International Law in 1933 “The Contracting Parties confirm that genocide, whether crime under that the extermination of racial, religious or social groups be declared committed in time of peace or in time of war, is a II, 1946, after international law which they undertake to prevent and to punish.” “a crime against international law “). On December judgment the International Military Tribunal had pronounced i8. On May 28, 1951, the International Court of Justice gave, at Nations against the major German war criminals, the United the request of the United Nations General Assembly, an Advisory (i), that Assembly unanimously declared, by Resolution No. 96 Opinion on the question of Reservations to the Convention on Resolution “genocide” is a crime against the law of nations. That Genocide.’1 The Advisory Opinion said, inter alia (p. 23)L21: said: “The origins of the Convention show that it was the intention of the “Genocide is a denial of the right of existence of entire human United Nations to condemn and punish genocide as ‘a crime under groups, as homicide is the denial of the right to live of individual international law’ involving a denial of the right of existence of entire human beings; such denial of the right of existence shocks the con human groups, a denial which shocks the conscience of mankind and results science of mankind, results in great losses to humanity in the form of in great losses to humanity, and which is contrary to moral law and to the and is cultural and other contributions represented by these groups, spirit and aims of the United Nations (Resolution 96 (i) of the General contrary to moral law and to the spirit and aims of the United Nations. Assembly, December iith, 1946). The first consequence arising from this “Many instances of such crimes of genocide have occurred when conception is that the principles underlying the Convention are principles racial, religious, political and other groups have been destroyed, which are recognized by civilized nations as binding on States, even with entirely or in part. out any conventional obligation. A second consequence is the universal “The punishment of the crime of genocide is a matter of [1 I.C.J. Reports, 1951, p. i; International Law Reports, i8 (195i), p. 364.] J.nternational concern. [2 Ibid., at p. 370.] “The General Assembly, therefore, LAW UifRICT COURT JUDGMENT 35 34 THE INDIVIDUAL IN INTERNATION. are . . . recognized by civilized nations as binding on States even condemnation of genocide and of the co-operation character both of the without any conventional obligation” (ibid.). “The principles under required ‘in order to liberate mankind from such an odious scourge’ lying the Convention “ are, inter alia, the criminal character of the (Preamble to the Convention). The Genocide Convention was therefore intended by the General Assembly and by the contracting parties to be acts defined in Article 2 (that is, the article upon which the definition definitely universal in scope. It was in fact approved on December 9th, of “ a crime against the Jewish people “ in the Israel Law has been 1948, by a resolution which was unanimously adopted by fifty-six States.” modelled), the criminal liability for any form of participation in this (Article the absence of immunity from criminal liability of ig. In view of the repeated affirmation by the United Nations crime 3), rulers and officials (Article and for purposes of extradition in the resolution of the General Assembly of 1946 and in the public 4), of any “ “ character in such crime (Article Convention of 1948, and also in view of the Advisory Opinion of the the absence political 7). These principles are “recognized by civilized nations “, according to International Court of Justice, there is no doubt that genocide has the conclusion of the International Court of Justice, “as binding on been recognized as a crime under international law in the full legal States, even without any conventional obligation that is to say, meaning of this term, cx tunc, that is to say, the crimes of genocide “; they constitute part of customary international law. The words which were committed against the Jewish people and other peoples “confirm” in Article I of the Convention and “recognized” in the during the period of the Hitler régime were crimes under interna Advisory Opinion indicate confirmation and recognition ex tunc, tional law. It follows, therefore, in accordance with the accepted namely, recognition and confirmation that the said principles were principles of international law, that the jurisdiction to try such already part of customary international law when the dreadful crimes is universal. crimes were perpetrated, which led to the United Nations Resolution 20. This conclusion encounters a serious objection in the light of and the drafting of the Convention—the crimes of genocide com Article 6 of the Convention, which provides: mitted by the Nazis. Thus far as to the first aspect of the Convention genocide or any of the other acts enumerated “Persons charged with (and the most important one for this judgment): the confirmat1ion shall be tried by a competent tribunal of the State in the in Article of certain principles as established rules of customary international territory of which the act was committed or by such international criminal tribunal as may have jurisdiction with respect to those law. Contracting Parties which shall have accepted its jurisdiction.” 22. The second aspect of the Convention, which is the practical task for which it was concluded, is the determination of the conven appear to afford support for an Prima fade, this provision might between the contracting parties to the Convention voiced by learned Counsel tional obligations argumenturn e contrario, the contention for the prevention of such crimes in the future and the punishment principle of universal jurisdiction and against the applicability of the therefor in the event of their being committed. Already in United jurisdiction with respect to the crime even against any extraterritorial Nations Resolution No. 96 (i), after the “affirmation” that the has failed to support universal in question. If the United Nations crime of genocide constitutes a crime under international law, to try a crime of genocide committed jurisdiction for each country came an “invitation” to all Member States of the United Nations expressly provided that, in the absence outside its boundaries, but has “to enact the necessary legislation for the prevention and punish of an international criminal tribunal, those accused of this crime ment of this crime “, together with a recommendation to organize tribunal of the State in the territory shall be tried by “a competent “international co-operation” between States with a view “to “, how, it is asked, may Israel try of which the act was committed facilitating the speedy prevention and punishment of the crime of the accused for a crime that constitutes “genocide “? “, and to this end the Economic and Social Council was must direct attention to the genocide 21. To answer this objection we with up a draft convention. Accordingly, the and the rules of conven charged drawing distinction between the rules of customary in time of peace also found expression “affirmation” that genocide, whether committed tional international law, a distinction which law is Court of Justice with or in time of war, constitutes a crime under international in the Advisory Opinion of the International in of the by the obligation assumed The Convention fulfils two followed Article I Convention respect to the Convention in question. by the contracting parties who “undertake to prevent and to simultaneously. In the sphere of customary international law roles punish” it; by Article 5 they “undertake to pass the necessary it re-affirms the deep conviction of all peoples that “genocide, legislation to this end “. peace or in time of war, is a crime whether committed in time of In the wake of these obligations of the contracting parties to I). That affirmation, which, as under international law” (Article prevent, by suitable legislation, the perpetration of genocide, and Justice was “unanimously the International Court of stressed, to enforce such legislation against future perpetrators of the crime, is “of a universal character”, the adopted by fifty-six States”, comes Article 6, which determines the courts before which those pi.nport of which is that “the principles underlying the Convention I.L.R.36—3 37 36 THE INDIVIDUAL IN INTERNATIONAL LAW DISTRICT COURT JUDGMENT to the report accused of this crime will be tried. It is clear that Article 6, like all debate it was agreed to append the following statement other articles which determine the conventional obligations of the of the Committee: which will the State contracting parties, is intended for cases of genocide “The first part of Article 6 contemplates the obligation of the adherence committed. Thus, in occur in the future after the ratification of the treaty or in whose territory acts of genocide have been in to bring to trial before thereto by the State or States concerned. It cannot be assumed, particular, it does not affect the right of any State outside the State.” the absence of an express provision in the Convention itself, that its own tribunals any of its nationals for acts committed any of the conventional obligations, including Article 6, will apply (U.N. Doc. A/C.6/SR. 134, p. 5.) in the past. It is of the deny nor to to crimes which had been perpetrated The words “in particular” are intended neither to as distinct from confirmation of nature of conventional obligations, affirm jurisdiction in other cases. another intention is implicit, their Sixth Committee, existing principles, that unless N. Robinson, referring to the resolution of the ex tunc. Article 6 of the Convention (at 84): application is ex nunc and not comments in his book The Genocide Convention (1960), p. is a purely purposive provision, and does not presume to affirm a It legal validity of this statement is, however, open to question. principle. We must therefore draw a clear distinction “The intended to subsisting opinion of many delegations that ‘Article 6 was not of Article I, which lays down that “the was the of persons between the first part questions of conflicting competence in regard to the trial that genocide, whether committed in solve purpose was Contracting Parties confirm charged with Genocide; that would be a long process. Its international law “— of Genocide time of peace or in time of war, is a crime under merely to establish the obligations of the State in which an act interna as the chairman a general provision which confirms a principle of customary was committed’ F (A/C.6/SR. 132, p. 9). However, could only state tional law “binding on States, even without any conventional rightly pointed out, the report of the Sixth Committee 6, which comprises a special provision of the Committee placed a certain interpretation on the obligation “—and Article that a majority which parties with regard to the trial of text; that interpretation could not be binding on the delegations undertaken by the contracting value as miglt in the future. Whatever may be the had opposed it. ‘Interpretations of texts had only such crimes that may be committed of opinion in their favour’ within the meaning of the Conven be accorded to them by the preponderance purport of this latter obligation that the Convention would be open of opinion as to the interpreta F (A/C.6/SR. 132, p. ro). It is obvious tion (and in the event of differences parties thereto; should disputes relating to the may, under Article g, appeal to to interpretation by the tion thereof, each contracting party the International Court of Justice would be called that it constitutes interpretation arise, such the International Court of Justice), it is certain what is the correct interpretation. In dealing with which are upon to decide disputed no part of the principles of customary international law, the Court could obviously use the history of the the Convention. problems, also binding outside the conventional application of article.” even with regard to the conventional application (i959) 23. Moreover, P. N. Drost says, in The Crime of State, vol. II: Genocide the Convention, it is not to be assumed that Article 6 is designed of 101—102): the jurisdiction of countries to try crimes of genocide by (at pp. to limit delegations expressed the opinion that Article of territoriality. Without entering into the general In the discussions many the principle solve questions of conflicting or concurrent criminal limits of municipal criminal jurisdiction, it may be 6 was not meant to question of the Its purpose was merely to lay down the duty of punishment no one disputes that customary international law jurisdiction. (U.N. pointed out that of the State in whose territory the act of genocide was committed. State from trying its own citizens for offences they Article does not forbid does not prohibit a . . . It seems clear that the subsisting in Doc. AJC.6/S.R. 132). have committed abroad (and in the light of legislation Power to exercise jurisdiction in accordance with its national the existence a Contracting inter many countries against the extradition of their citizens, on the criminal competence of its domestic courts. General in rules committed of such authority is essential to prevent criminals from behaving national law does not prohibit a state to punish aliens for acts a “hit and run” manner by fleeing to their own country). Had abroad against nationals.” accused of genocide shall be Article 6 meant to provide that those The learned author proceeds to add (at p. 131) of the State in the territory of tried only by “a competent tribunal to which the criminals belong by an “international court” “Also the courts of the country which the act was committed” (or by were expressly mentioned in the debates as being that article would have foiled reason of nationality, which has not been constituted), then if the lex fori so admits, to exercise penal jurisdiction in cases to prevent genocide and inflict competent, the very object of the Convention arising abroad. The forum patriae rei was recognized as equally competent the delegates of of active punishment therefor. In the Sixth Committee under the domestic law applying in such case the principle several countries pointed to this case, as well as to other cases of But then, many states apply in certain cases the principle personality. over jurisdiction in many countries—such as the commis of protective jurisdiction which authorizes the exercise of jurisdiction acknowledged of the state sion tt crimes against the citizens of the State—and after a lengthy aliens in respect of crimes committed abroad when theinterests 38 THE INDIVIDUAL IN INTERNATIOI’AL LAW DISTRICT COURT IUDGMENT 39 are seriously involved. When the victim of physical crime is a national of sality (together with the failure to constitute an international the state which has arrested the culprit, the principle of passive personality criminal tribunal) is a grave defect in the Convention, which is may come into play and the forum atriae victimac may be competent to likely to weaken the joint effort for the prevention of the commission try the case. of this abhorrent crime and punishment therefor, but there is nothing exception—and the crime of genocide surely must be By way of in this defect to lead us to deduce any rule against the principle of considered exceptional in this respect—the principle of universal repression of jurisdiction with respect to the crime in question. It is applied to crimes which have been committed neither by nor against universality territorial jurisdiction, nationals nor against public interests nor on the territory of the state is clear that the reference in Article 6 to whose courts are considered competent nevertheless to exercise criminal apart from the jurisdiction of the non-existent international tribunal, jurisdiction by reason of the international concern of the crime or the is not exhaustive. Every sovereign State may exercise its existing international interest of its repression. None of these forms of comple powers within the limits of customary international law, and acces mentary competence additional to the territorial jurisdiction as basic sion of a State to the Convention does not involve the waiving of competence of the domestic courts has been excluded under Article 6 of powers which are not mentioned in Article 6. It is in conformity the present Convention. There was no need to stipulate these jurisdictional with this view that the Law for the Prevention and Punishment of states possess unless particular provisions of inter powers which all Genocide, 5710/1950, provided in Section 5 that national law prohibit or limit the exercise.” “any person who has committed outside Israel an act which is an 24. The Genocide Convention may be contrasted with the four offence under this Law may be prosecuted and punished in Israel as Geneva Conventions of August 12, 1949: (i) for the Amelioration of if he had committed the act in Israel.” Forces in the the Condition of the Wounded and Sick in Armed The Law does not apply with retroactive effect and does not therefore the Wounded, Sick Field, (2) the Amelioration of the Condition of pertain to the offences dealt with in the present case. Our view as to Sea, Relative to and Shipwrecked Members of Armed Forces at () the universality of jurisdiction is not based on this Law or on this Relative to the Protection the Treatment of Prisoners at War, () interpretation of Article 6 of the Convention but derives froth the provide that: of Civilian Persons in Time of War. These Conventions basic nature of the crime of genocide as a crime of the utmost gravity “Each High Contracting Party shall be under the obligation to under international law. The significance of the Convention in this search for persons alleged to have committed, or to have ordered to be case lies in the affirmation of the international nature of the crime, committed, such grave breaches [of the Convention as defined in the which was unanimously given by the United Nations General their following Article], and shall bring such persons, regardless of Assembly and to which the German people, amongst others, also courts. It may also, if it prefers, and in nationality, before its own adhered. (In 1954 the Federal Republic of Germany acceded to the with the provisions of its own legislation, hand such persons accordance Convention and enacted a Law (BGB1 II, 729) which gave effect over for trial to another High Contracting Party concerned, provided to the Convention in Germany, and added to the German Criminal such High Contracting Party has made out a prima facie case.” Code Article 22oA against genocide (Volkermord), a crime defined (Article 49 of Convention No. i, Article 50 of Convention No. 2, 2 of the Convention.) The “crime against the Article 129 of Convention No. 3, and Article 146 of Convention No. 4.) according to Article i the Israel Law constitutes the respect Jewish people” under Section of Here the principle of “ universality of jurisdiction with crime of “ genocide” within the meaning of Article 2 of the down as the obligatory jurisdiction of the High to war crimes “is laid Convention; and inasmuch as it is a crime under the law of nations, from which none of them may withdraw and Contracting Parties, Israel’s legislative authority and judicial jurisdiction in this matter may waive (as expressly stated in the above- which none of them is based upon the law of nations. This obligation applied not only to the mentioned Conventions). 26. As to the crimes defined in Article 6 of the Charter of the also to the neutral parties to the Conventions. belligerents but International Military Tribunal, that Tribunal said in its judgment Manual of Military Law, Part III (The Law of War on (See British on the Major War Criminals (I.M.T., Vol. i, p. 218°1), inter alia: Land) (1958), paragraph 282, note 2; Greenspan, The Modern Law “The Charter is not an arbitrary exercise of power on the part of the of Land Warfare (1959), p. 503.) victorious nations, but in the view of the Tribunal, as will be shown, in the Convention for the Prevention and 25. On the other hand, it is the expression of international law existing at the time of its creation; United Nations did Punishment of Genocide the Members of the and to that extent is itself a contribution to international law.” not achieve quite so far-reaching agreement but contented them As regards the crimes defined in Control Council Law No. 10, which selves with the determination of territorial jurisdiction as a compul served as a basis, among others, for iz important cases tried by the sory minimum. It is the consensus of opinion that the absence from the principle of univer this Convention of a provision establishing C’ Annual Digest, 13 (1946), p. 203 (sub nom. In reGoering and Others), at p. 207.] DISTRICT COURT JUDGMENT 41 40 THE INDIVIDUAL IN INTERNATIONAL LAW ‘flie law is universal, hut such a State reserves unto itself the exclusive United States Military ‘rribunals in Nuremberg, it was stated in the power within its boundaries to apply or withhold sanctions. . . . Applying judgment passed on the “ Jurists “ (Justice Case: Trials of War these principles, it appears that the power to punish violators of inter Criminals, Vol. III, pp. 954, 968[’]): national law in (eiiiiany is not solely (le1wndcnt on the enactment of “The [I.M.T.] Charter, the I.M.T. Judgment and Control Council rules of substantive penal law applicable only in Germany. . . . Only Law 10 are ‘merely great new cases in the book of interhational law’. by giving consideration to the extraordinary and temporary situation in Surely C.C. Law io, which was enacted by the authorized represent Germany can the procedure here be harmonized with established prin atives of the four greatest Powers on earth, is entitled to judicial respect ciples of national sovereignty. In Germany an international body (the when it states, Each of the following acts is recognized as a crime ‘. Control Council) has assumed and exercised the power to establish judicial Surely the requisite internal approval and acquiescence is established niachinerv for the punishment of those who have violated the rules of when twenty-three States, including all of the great powers, have approved common international law, a power which no international authority the London Agreement and the I.M.T. Charter without dissent from any without consent could assume or exercise within a State having a national State. Surely the Charter must be deemed declaratory of the principles Government presently in the exercise of its sovereign powers.” of mternational law in view of its recognition as such by the General Hence it is clear that the contention that the jurisdiction of the Assembly of the United Nations.” International Military Tribunal at Nuremberg and the tribunals The judgment then quotes the resolution which was unanimously • which were established in Germany by virtue of Control Council adopted on December II, 1946, by the United Nations General Law No. 10 derives from the capitulation and lack of sovereignty of Assembly that: Germany at that time, is true only with respect to the direct exercise territorial jurisdiction in by those tribunals, “The General Assembly.. . affirms the principles of international law of criminal Germany recognized by the Charter of the Nuremberg Tribunal and the Judgment but not with regard to the substantive force of the rules of interna of the Tribunal.” tional law relating to” war crimes” and “crimes against humanity”, Proceeding, the judgment draws a distinction between the substan which were actually applied by these tribunals. Israel doe not tive principles of international law, which lay down that “war exercise jurisdiction within Germany such as was exercised by the crimes” and “crimes against humanity”, whenever and wherever said tribunals, but has adopted for herself, in the Law in question, international law committed, are violations of international law, and the application substantive rules of universal validity, the rules of “ against humanity “. The and actual enforcement of these universal principles which may regarding “war crimes” and crimes encounter the barriers of national sovereignty. judgment continues (at p. 983[’l): or of “We are empowered to determine the guilt or innocence of persons “‘Whether the crime against humanity is the product of statute both, we find injustice accused of acts described as ‘war crimes’ and’ crimes against humanity’ common international law, or, as we believe, of no are chargeable with knowledge that under rules of international law. At this point, in connection with cherish to persons tried for such crimes. They wrong and were punishable when committed.” ed doctrines of national sovereignty, it is important to distinguish between such acts were the rules of common international law which are of universal and superior It is superfluous to add that the “crime against the Jewish authority, on the one hand, and the provisions for enforcement of those people”, which constitutes the crime of “genocide”, is nothing but . . . the rules, which are by no means universal, on the other. As to the gravest type of “crime against humanity” (and all the more so laws and customs of war punishment of persons guilty of violating the because both under Israel law and under the Convention a special has always been recognized that (war crimes in the narrow sense), it intention is requisite for its commission, an intention that is not established and punishment imposed by the State into tribunals may be required for the commission of a “crime against humanity “). hands the perpetrators fall. These rules of international law were whose Therefore, all that has been said in the Nuremberg principles about recognised as paramount, and jurisdiction to enforce them by the injured applies a to “crime against the beffigerent Government, whether within the territorial boundaries of the “crimes against humanity” fortiori State or in occupied territory, has been unquestioned. (Ex 25arte Quinn, Jewish people”. If authority is needed for this, we find it in the same However, 317 U.S. it2l; In re Yamashita, 327 U.S. i, go L. Ed.[3) judgment, which says: traditionally subject to practical enforcement of international law has been “As the prime illustration of a crime against humanity under C.C. Law territorial boundaries of a State having a recog limitiation. Within the 10, which by reason of its magnitude and its international repercussions in the exercise of sovereign nized, functioning, Government presently has been recognized as a violation of common international law, we cite of the rules of international .“ V power throuhout its territory, a violator ‘genocide’ law could be punished only by the authority of the officials of that State. in fifteen at 282.] There is no need to recapitulate Jerusalem, years after [‘Annsal Digest, 14 (1947), p. 278 (sub nom. In ‘e Altstöller and OMens), p. fIbid., lo (1941—1942), p. 564.] [1 Annual Digest, [4 (i), at p. 285.] [8 Ibid., 13 (1946), p. 269.] 42 THE. INDIVIDUAL IN INTERNATIONAL LAW DISTRICT COURT JUDGMENT 43 Nuremberg, the grounds for the legal rule of “crime against [Certainly no one can claim] there is any taint of ex post factoism humanity”, for these are written in the blood, in the torrents of in the law of murder.” law “, said blood, of the Jewish people which was shed. “That The Netherlands Law of July 10, 1947, which amends the preced and woe to him Aroneanu in 1948, “was born in the crematoria, ing Law (of October 22, 1943) may serve as an example of municipal dans les fours créma who will try to stifle it.” (“ Cette loi est née retroactive legislation, in adding Article 27A, which provides: maiheur a celui qui tenterait de l’etouffer.”—Quoted by toires; et “Any person who, during the present war, while in the to Eugene Aroneanu, Le Crime contre • Boissarie in his introduction military service of the enemy, is guilty of a war crime or any l’Humanité, ig6i.) crime against humanity as defined in Article 6, subsection (b) or (c), The judgment against the “Operation Groups “of April 10, 1948 of the Charter annexed to the London Agreement of August 8, 1945 (Einsatzgruppen Trial) (T.W.C., IV, 411, 498[’]) says on the same shall, if such crime contains at the same time the elements of an act subject: punishable according to Netherlands law, receive the punishment laid down for such act.” “Although the Nuremberg trials represent the first time that definition of international tribunals have adjudicated crimes against humanity as an On the strength of such retroactive adoption of the international offense, this does not, as already indicated, mean that a new crimes contained in the Nuremberg Charter, the Senior Commander offense has been added to the list of transgressions of man. Nurnberg has of the S.S. and Police in Holland, one Rauter, was sentenced to only demonstrated how humanity can be defended in court, and it is death by a special tribunal, and his appeal was dismissed in 1949 should inconceivable that with this precedent extant, the law of humanity by the Special Court of Cassation (see L.R.T.W.C., XIV, pp. 89 ff.).l1 will rise. Thus, the ever lack for a tribunal. Where law exists a court The double plea of “nullum crimen, nulla poena sine lege” was termed, will never adjourn.” court of humanity, if it may be so dismissed by the Court of Cassation on the grounds that the that (which is expresly 27. We have already dealt with the “principle of legality” Netherlands legislator had abrogated this rule postulates “Nullum crimen sine lege, nulla poena sine lege”, and what laid down in Section i of the Netherlands Criminal Law) with respect not adequate has been stated above with respect to municipal law is also applicable to crimes of this kind, and that indeed the rule was War to international law. In the Judgment against the “Major for these crimes. At p. 120 (ibid.) it is stated: Criminals “ it is stated (p. 219): “From what appears above it follows that neither Article 27 (A) of the Article 6 of the Charter of London (to In the first place, it is to be observed that the maxim nullum crimen Extraordinary Penal Law Decree nor of provision refers) had, as the result of a change sine lege is not a limitation of sovereignty, but is in general a principle which the said Netherlands declared after the event to be a crime an act which justice.” [2] of view as to its legality, .. in hitherto permitted; . These provisions have merely defined “foreign was That is to say, the penal jurisdiction of a State regarding more detail the jurisdiction, as well as the limits of penal liability and the with the offenders”, in so far as it does not conflict on other grounds imposition of punishment, in respect of acts which already before their prohibition of principles of international law, is not limited by the commission were not permitted by international law but were regarded retroactivity. as crimes. of a just “In so far as the appellant considers punishment unlawful because It is indeed difficult to find a more convincing instance punishment of his actions, although illegal and criminal, lacked a legal sanction provided retroactive law than the legislation providing for the and against them precisely outlined and previously prescribed, this objection war criminals and perpetrators of crimes against humanity the Nurem also fails. against the Jewish people, and all the reasons justifying except in virtue of a legal of the “The principle that no act is punishable berg Judgments justify eo ipse the retroactive legislation had preceded it, has as its object the creation of a ground penal provision which Israel legislator. We have already referred to the decisive guarantee of legal security and individual liberty, which legal interests this ground of the existence of “criminal intent” (mens rea), and would be endangered if acts about which doubts could exist as to their this case is recurs in all the Nuremberg Judgments. The accused in deserving punishment were to be considered punishable after the event. “final solution the sense that charged with the implementation of the plan for the This principle, however, has no absolute character, in mind doubt other principles with the recognition of the problem of the Jews”. Can anyone in his right its operation may be affected by in interests of justice are concerned. absolute criminality of such acts? As stated in the judgment of which equally important the do not tolerate that extremely serious viola “ 459[1): “These latter interests case of the “ Operation Groups (at p. the tions of the generally accepted principles of international law, the criminal none. In ye Ohlendorf and Others), at p. 665.] character of which was already established beyond doubt at the time [ Annual Digest, 15 (1948), p. 656 (sub [L-Ibid., 13 (5946), p. 203, at p. 208.] [3 Ibid., 15 (1948), p. 656, at p. 658.] [1 Annual Digest, x6 (1949), p. 526, at p. 542.] I)ISTRICT COURT THE INDIVIDUAL IN INTERNATIONAL LAW JUDGMENT 45 To contention counsel relies mainly on the theory of they were committed, should not be considered punishable on the sole support this ground that a previous threat of punishment was lacking. It is for this Kelscn, as explained iii his ‘‘ Collective and Individual Responsibility of reason that neither the London Charter of 1945 nor the Judgment of the in international Law, with Particular Regard to the Punishment International Military Tribunal (at Nuremberg) in the case of the Major War Criminals “, in (i) 33 California Law Review 530 if.; Peace German War Criminals have accepted this plea, which is contrary to the through Law (1944), pp. 71 if.; and Principles of International Law international concept of justice, and which has since been also rejected (1952), pp. 235 if. by the Netherlands legislator, as appears from Article 27’ (A) of the The learned writer bases himself on the rule par in parem non habet Extraordinary Penal Law Decree.” imerium, that is to say, a sovereign State has no dominion over, The courts in Germany, too, have rejected the contention that and does not sit in judgment upon, another sovereign State, and the crimes of the Nazis were not prohibited at the time and that deduces therefrom that a State may not try a person for a criminal their perpetrators did not have the requisite criminal intent. The act that constitutes an “ act of State “ of another State, without judgment of the Supreme Federal Tribunal of January 29, 1952 the consent of such other State to that person’s trial. In Kelsen’s (i St/R 563/51 (BGH 562 234)) declares that the expulsion of the view the State in whose behalf the “organ” (ruler or official) had Jews, the object of which was the death of the deportees, was a acted is alone responsible for the violation, through such act, of continuous crime of murder committed by the principal planners international law, while the perpetrator himself is not responsible and executants, a matter of which all other executants must have (with the two exceptions of espionage and war treason). been conscious, since it cannot be accepted that they were unaware The theory of “act of State “ was repudiated by the Interna of the basic principles on which human society is based and which tional Military Tribunal at Nuremberg when it said (Blue Series I, are the common legacy of all civilized nations. pp. 222—223[’]): See also BGH i St.R 404/60 (NIV 1961, 276), a judgment of “It was submitted that international law is concerned with the acions December 6, 1960, which deals with the murder of mentally-sick of sovereign States, and provides no punishment for individuals; ‘and persons on Hitler’s orders. The judgment says, inter alia (pp. 277, further, that where the act in question is an act of State, those who carry 278) that in 1940 at the latest, it was clear to every person not too it out are not personally responsible, but are protected by the doctrine of the naive, and certainly to all who were part of the leadership establish the sovereignty of the State. In the opinion of Tribunal, both these submissions must be rejected. That international law imposes duties and Nazi régime did not shrink from the commission of ment, that the liabilities upon individuals as well as upon States has long been recognized. crimes, and that whoever took part in these crimes could not argue ,[21), permissible, In the recent case ofExparte Quinn (1942,317 U.S. before the Supreme that he had mistakenly assumed that a forbidden act was Court of the United States, persons were charged during the war with when these crimes violated basic principles of the rule of law. landing in the United States for purposes of spying and sabotage. The The rule of Jewish Law that “No one may be punished unless late Chief Justice Stone, speaking for the Court, said: he was forewarned,” which corresponds to the principle of legality ‘From the very beginning of its history this Court has applied the according to the Roman rule, suggests the importance of warning law of war as including that part of the law of nations which prescribes that certain action is prohibited. During the [Second] World War for the conduct of war, the status, rights and duties of enemy nations the Allied Governments gave the Nazi criminals repeated warnings as well as enemy individuals.’ that they would be punished, but without avail. Henry Stimson “He went on to give a list of cases tried by the Courts, where individual was right when he said, as cited in the judgment in the Justice case offenders were charged with offenses against the laws of nations, and (p. 976): particularly the laws of war. Many other authorities could be cited, but can punished Nazi confidence that we would never chase and catch enough has been said to show that individuals be for “It was the violations of law. Crimes against international law are misunderstanding of our opinion of them, that led them international them, and not a committed by men, not by abstract entities, and only by punishing crimes. Our offense was thus that of the man who passed to commit their individuals who commit such crimes can the provisions of international other side. That we have finally recognized our negligence and by on the law be enforced. criminals for what they are is a piece of righteousness too long named the “The principle of international law which under certain circumstances delayed by fear.” protects the representatives of a State, cannot be applied to acts which are 28. Learned defence counsel sought to deny the jurisdiction of condemned as criminal by international law. The authors of these acts this country by contending that the crimes attributed to the accused cannot shelter themselves behind their official position in order to be freed in Counts 1—12 had been committed, according to the indictment [1 In re Goering and Others: Annua.l Digest, 13 (1946), p. 203, at 221.] Itslf, in the course of duty and constitute “ acts of State,” acts for p. [ Annual Digest, io (1941—1942), p. 564.1 which, in his submission, the German State alone is responsible. a’ JUDGMENT 46 THE INDIVIDUAL IN INTERNATIONAL LAW DISTRICT COURT 47 natural person escapes from punishment in appropriate proceedings. Article of the Charter punishment, once physically and once legally. The 7 personality and State expressly declares; scotfree between the legal loopholes of State But then, this reasoning in respect of these too much whether as heads of States or sovereignty. ‘The official position of defendants, juristic conceptions should not be carried into the province of departments, shall not l)C considered laboured responsible officials in Government law. or mitigating punishment.’ penal as freeing them from responsibility, Immunity for acts of State constitutes the negation of international On the other hand, the very essence of the Charter is that individuals criminal law which indeed derives the necessity of its existence exactly have international duties which transcend the national obligations of from the very fact that acts of State often have a criminal character for obedience imposed by the individual State. He who violates the laws of which the morally responsible officer of State should be made penally war cannot obtain immunity while acting in pursuance of the authority liable.” in authorizing action moves outside its competence of the State, if the State The contention of learned counsel for the defence that it is not under international law.” the accused but the State on whose behalf he had acted, who is was not meant, It is clear from the context that the last sentence responsible for his criminal acts is only true as to its second part. limit the rule to as counsel contends in his written brief (p. 28), to It is true that under international law Germany bears not only expressly said, the “violation of the laws of war” alone. The Court moral, but also legal, responsibility for all the crimes that were above, that “the principle of international law which, as quoted committed as its own “acts of State “, including the crimes attributed of a State, under certain circumstances, protects the representatives to the accused. But that responsibility does not detract one iota criminal by cannot be applied to acts which are condemned as from the personal responsibility of the accused for his acts. See international law.” Oppenheim—Lauterpacht, § 156 b :‘ Indeed, the theory of Kelsen and his disciples (see defence “The responsibility of States is not limited to restitution or to damages 14—35), and also the “ limited “ theories counsel’s written brief, pp. penal character. The State, and those acting on its behalf, bear criminal unacceptable. The pre of a referred to by learned counsel (ibid.) are responsibility for such violations of international law as by reason of cedents adduced as authorities for this theory, e.g., Schooner Exchange their gravity, their ruthlessness, and their contempt for human life place v. McFadden (1812) 7 Cranch. ii6, the memorandum of the American them within the category of criminal acts as generally understood in the Secretary of State on the subject of the Caroline, ‘i.e., People v. law of civilised countries. Thus if the Government of a State were to order McLeod (see Moore, Digest of International Law, II, paragraph 175) the wholesale massacre of aliens resident within its territory the respon and other precedents, do not fit the realities of Nazi Germany. A sibility of the State and of the individuals responsible for the ordering character. State that plans and implements a “final solution” cannot be and the execution of the outrage would be of a criminal admit that individuals, by grouping themselves treated as par ‘in parem, but only as a gang of criminals. In the it is impossible to States and thus increasing immeasurably their potentialities for evil, judgment in the Justice case, it is said 9841h]): into (p. can confer upon themselves a degree of immunity from criminal liability “The very essence of the prosecution case is that the laws, the Hitler and its consequences which they do not enjoy when acting in isolation. decrees and the draconic, corrupt, and perverted Nazi judicial system Moreover, the extreme drastic consequences of criminal responsibility themselves constituted the substance of war crimes and crimes against of States are capable of modification in the sense that such responsibility of humanity, and that participation in the enactment and enforcement is additional to and not exclusive of the internatinal criminal liability govern them amounts to complicity in crime. We have pointed out that of the individuals guilty of crimes committed in violation of International humanity. mental participation is a material element of the crime against Law.” Only when official organs of sovereignty participated in atrocities and persecutions did those crimes assume international proportions. It can See also ibid., § 153a (p. 341): scarcely be said that governmental participation, the proof of which is “...No innovation was implied in the Charter annexed to the Agree necessary for conviction, can also be a defense to the charge.” ment of August 8, for the punishment of the Major War Criminals individual responsibility for Drost, in his The Crime of State, Vol. I: “Humanicide” (pp. 310— of the European Axis inasmuch as it decreed war crimes proper and for what it described as crimes against humanity. 311, under the caption—” State Crime as Act of State “) writes; For the laws of humanity, which are not dependent upon positive enact Any State officer irrespective of his rank or function would necessarily ment, are binding, by their very nature, upon human beings as such.” go unpunished if his acts of State were considered internationally as the The repudiation of the argument of “ act of State” is one of of a legal person. The person who really acted on behalf sovereign acts law that were acknowledged by the State would be twice removed from penal justice since the entity the principles of international of the and were whom he represented, by its very nature, would be doubly immune from Charter and Judgment of the Nuremberg Tribunal

[1 Annual Digest, 13 (1946), p. 278, at p. 287.] Oppenheim, International Law, vol. l (8th ed. by’Lauterpacht, 1955), p. 355.1 48 THE INDIVIDUAL IN INTERNATIONAL LAW DISTRICT COURT JUDGMENT 49 unanimously affirmed by the United Nations Assembly in its interpretation of the Charter, for it is based on an express proviso to Resolution of December II, 1946. In the formulation (on the Article 6 (c) of the Charter which does not appear in the definition directions of the Assembly in its Resolution No. II 177), by the of “crime against humanity” in Article II i (c) of Control Council International Law Commission of the United Nations, of these Law No. 10. The last words in the passage cited above (“ crimes acknowledged principles, this principle appears as Principle No. III. against humanity within the meaning of the Charter “) indicate that, “The fact that a person who committed an act which constitutes a but for the special proviso to Article 6 (c), the Tribunal would have crime under international law acted as Head of State or responsible deemed these crimes “ crimes against humanity “. It is true that, Government official does not relieve him from responsibility under notwithstanding the conspicuous omission of this proviso from international law.” Control Council Law No. 10, two of the American Military Tribunals [n Resolution No. 96 (I) of December II, 1946, also, in which the decided in subsequent cases (the Flick Caset1j and the Ministries United Nations General Assembly unanimously affirmed that Case’21) to apply the above-mentioned provisio to the last-mentioned contrary opinion (in “genocide” is a “crime under international law “, it is stated that Law; but two other Tribunals expressed a “principal offenders and associates, whether private individuals, the Operation Groups[3] and the Justice’4] Cases), and we think public officials or statesmen,” must be punished for the commission that their opinion, which conforms to the letter of the law, is correct. of this crime; while the Convention for the Prevention and Punish See also the reasons—to us convincing—advanced by the Chief ment of Genocide expressly provides in Article : American Prosecutor, General Taylor, in his argument in the 82 ff.). It must be noted that “Persons committing genocide or any of the other acts enumerated “Justice “Case (T.W.C., Vol. XIII, pp. 10 applied the in Article shall be punished, whether they are constitutionally respon German judgments under Control Council Law No. sible rulers, public officials or private individuals.” definition of “crime against humanity” to all crimes of this order which were committed during the period of the Nazi régime, i.e., This Article affirms a principle recognized by all civilized nations, from January 30, 1933. See H. Meyerowitz, La Repression pair les in the words of the International Court of Justice in its Advisory Tribunaux aliemands des Crimes contre l’Humanité (1960), p. 233. Opinion [already] referred to, and inasmuch as Germany, also, has importance attaches to this question for the purposes adhered to this Convention, it is possible that even according to No practical since most of the crimes attributed to the Kelsen—who requires an international convention or the consent of of the present case, during the war or in connection with it. the State concerned—there is no longer any basis for pleading accused were committed on (According to the Nuremberg Judgment Hitler’s invasions of Austria “act of State “. But the rejection of this plea does not depend constituted “crimes within the jurisdiction of the affirmation of this principle by Germany, for the plea had and Czechoslovakia within the meaning of the proviso to Article 6 (c): already been invalidated by the law of nations. the Tribunal” see T.W.C., vol. 22, 643, 662). At all events it seems to us, in For these reasons we reject the plea of “ act of State “. pp. view of the general definition in Control Council Law No. 10 of 29. In his written brief (pp. 48—50) learned defence counsel has “crime against humanity”, that the proviso to Article 6 (c) of the based himself on the strict interpretation of the term “ crime against not limit the substantive nature of a “crime against humanity” given by the Nuremberg International Tribunal accord Charter does under international law, but has only limited the ing to Article 6 (c) of its Charter, which excluded from its jurisdiction humanity” of the Nuremberg Tribunal to try crimes of this kind many crimes of this kind which had been committed by Germany jurisdiction up with “war crimes” or “crimes against peace “. before the outbreak of the war. In its judgment on the Major War which are bound also Oppenheim, International Law, vol. 11(7th ed. by Lauter-, Criminals the Tribunal said (p. 254”): See pacht, 1952), paragraph 257, p. 579, n. 5, and authorities there cited. “To constitute crimes against humanity, the acts relied on before the 30. We have discussed at length the international character of outbreak of war must have been in execution of, or in connection with, because this offers the broadest possible, any crime within the jurisdiction of the Tribunal. The Tribunal is of the the crimes in question opinion that revolting and horrible as many of these crimes were, it has though not the only, basis for Israel’s jurisdiction according to the not been satisfactorily proved that they were done in execution of, or in law of nations. No less important from the point of view of interna connection with, any such crime. The Tribunal therefore cannot make a tional law is the special connection which the State of Israel has general declaration that the acts before 1939 were crimes against humanity with such crimes, since the people of Israel (Am Israel), the Jewish within the meaning of the Charter.” [1 Annual Digest, 24 (ig’), p. 266.] In our view no conclusion whatever may be drawn from this [2 Ibid., i6 (ig), p. 344, sub nom. In re Weizsaecher and Others (Ministries Trial).] [‘Ibid., i5 (1948), p. 656.] Annual Digest, 13 (2946), p. 203, at 213.] [4 [Tn re Goering and Others: p. Ibid., 14 (x947), p. 278.] 1J11i(1Ui Uu1’1 JUiiiiiii 50 THE INDIVIDUAL IN INTERNATIONAL LAW point” is not new. Dahm (op. cit.) people (Ha’Ain Ha’ Yehudi, to use the term in the Israel legislation), The doctrine of the “linking Darstellung constituted the target and the victim of most of the said crimes. bases himself on Mendelssohn-Bartholdy, Vergleichende deutschen und auslaendischen Strafrechts, Allg. Teil, VI (1908), - The State of Israel’s “right to punish “ the accused derives, in our des view, from two cumulative sources: a universal source (pertaining pp. iii ff. And Mendelssohn-Bartholdy himself (ibid.) quotes Rolin to the whole of mankind), which vests the right to prosecute and Jacquemins as having said in 1874: family of nations; punish crimes of this order in every State within the “Tout le monde est d’accord sur ce point qu’il faut un lien de droit and a specific or national source, which gives the victim nation the entre celui qui punit et celui qui subit le châtiment.” right to. try any who assault its existence. the view of Grotius on “the This second foundation of criminal jurisdiction conforms, accord 32. We have already mentioned “, is also based on a “linking point” ing to accepted terminology, to the protective principle (competence right to punish a view which Grotius holds that the very réelle). In England, which until very recently was considered a between the criminal and his victim. a legal connection between the country that does not rely on such jurisdiction (see also Harvard commission of the crime creates and the victim such as vests in the victim the right to Research in International Law, “Jurisdiction with respect to Crime “, offender punish the offender or demand his punishment. According to 1935, A.J.I.L., vol (Suppl.), 544) it was said in Joyce v. Director of 35 the victim may himself punish the offender, but the Public Prosecutions [1946] A.C. 347, 372) :‘ natural justice, organization of society has transferred that natural right to the second point of appeal... was that in any case no English “The sovereign State. One of the main objects of the punishment— court has jurisdiction to try an alien for a crime committed abroad . Law of Peace and War (Book 2, chap. 20) is, I think, a short answer to this point. The statute in question continues the author of The There in future suffer a similar . ensure that “the victim shall not deals with the crime of treason committed within or . . without the —is to ignore the injury at the hands of the same person or at the hands of others” realm:. .. No principle of comity demands that a state should crime of treason committed against it outside its territory. On the contrary (ne post hac tale quid atiatur aut ab eodem aut ab aliis). a proper regard for its own security requires that all those who commit Grotius also quotes an ancient authority who said hat the that crime, whether they commit it within or without the realm, should be punishment is necessary to “defend the honour or authority of him amenable to its laws.” who was injured by the offence so that the failure to punish may Oppenheim—Lauterpacht, o. cit., vol. I, § 147, p. 333, says that not lead to his reproach and indignity and he adds that what has the penal jurisdiction of the State includes “ crimes injuring its been said of the attack upon a person’s authority applies to the subjects or serious crimes against its own safety “. Most European infringement of all his rights. And again: “Ne ab aliis laedatur qui countries go much further than this (see Harvard Research, bc. cit., laesus est punitione non quavis, sed aperta atque conspicua quae ad pp. 546 et seq.). exemplum pertinet obtinetur.”121 Voebkersttafrechts (1956), 31. Dahm says in his Zur Problematik des Not all jurists use the term “linking point “ in the same sense. foreign p. 28, that the protective principle is not confined to those Thus Mendelssohn-Bartholdy maintains that the sovereignty of a offences that threaten the “vital interests” of the State, and goes State in determining its criminal jurisdiction is unlimited, and he his reference to the “immanent on to explain (pp. 38—39) in resorts to the “linking point “ doctrine solely as a scientific device limitations” of the jurisdiction of the State, a departure from which for the classification of the offences specified in positive law: “The would constitute an “ abuse” of its sovereignty, [that] number of linking points is as large as the number of offences” Penal jurisdiction is not a matter for everyone to exercise. It requires a (op. cit., p. 112). On the other hand, Hyde (op. cit., p. 804) demands, ‘linking point’ (Anknuepfungspunkte), a legal connection that links the as already mentioned, The State may, in so far as international punisher with the punished. between that act and the prosecutor, does not contain rules to the contrary, punish only persons and acts “a close and definite connection law and one which is commonly acknowledged to excuse the exercise of juris concern it more than they concern other States “. (Author’s emphasis.) which diction. There are few situations where the requisite connection is deemed summed up his argument counsel for the defence has . . ... Learned to exist.. . . The connection . is apparent when the act complained against the jurisdiction of the Israel legislator by stressing (Session 5, of is to be fairly regarded as directed against the safety of the prosecuting connection pp. 17—20) that under international law there must be a State.” between the State and the person who committed the crime and [1 . est, ne praetermissa of a “recognized linking point” the State has . dsgnifas aucloritasue ejus in quem est peccafurn tuenda that in the absence anirnadversio conterniurn ejus paris et honorem levet.] for foreign offences. [2 no authority to inflict punishment “ In order that the victim may not be injured by others, there must be no mere punishment but public and manifest punishment that will serve as an example.”] [‘Annual Digest, i5 (1948), p. 91, at p. 97.] L)1,11(1U1 U(J1’%.1 52 THE INDIVIDUAL IN INTERNATIONAL LAW F which form the subject of the Law in question, and the establishment lies the view of Dahm (op. cit.). Between these two extreme views of the State: Notwithstanding the difference of opinion as to the closeness of “The catastrophe which recently befell the Jewish people—the “ connection “ or “linking point the requisite link, the very term in Europe—was another clear demon before us. The question massacre of millions of Jews is useful for the elucidation of the problem of solving the problem of its homelessness by of Israel and the stration of the urgency is, what is the special connection between the State in Eretz-Israel the Jewish State, which would open the whether this connection is re-establishing offences attributed to the accused, and gates of the homeland wide to every Jew and confer upon the Jewish sufficiently close to form a foundation for Israel’s right of punishment people the status of a fully-privileged member of the community of regarding the accused. This is no merely technical question but a nations. wide and general one; for the principles of international law are “The survivors of the Nazi holocaust in Europe as well as Jews from broad universal principles and not articles of an express code. other parts of the world continued to migrate to Eretz-Israel . . . and a life of dignity, freedom and honest 33. When the question is presented in its widest form, as above, never ceased to assert their right to it seems to us that the answer cannot be in doubt. The “linking toil in their national homeland. Jewish community of this country point” between Israel and the accused (and for that matter any “In the Second World War, the share to the struggle of the freedom and peace- person accused of a crime against the Jewish people under this Law) contributed its full loving nations against the forces of Nazi wickedness and by the blood the case of “crime against the Jewish people “, a is striking in soldiers and its war effort gained the right to be reckoned among an intention to exterminate the Jewish people of its crime that postulates the peoples who founded the United Nations,” in whole or in part. Indeed, even without such specific definition— fact, which the law and it must be noted that the draft Law had only defined “crimes These words are not mere rhetoric but historical against humanity” and “war crimes” (Drafts of Law of the year of nations does not ignore. Nations of the right of 5710, No. 36, 119)—there was a subsisting “linking point “, since In view of the recognition by the United p. light of the most of the Nazi crimes of this kind were perpetrated against the the Jewish people to establish their State, and in the of nations, Jewish people; but in the light of the definition of “crime against recognition of the established Jewish State by the family of Israel “ Jewish people and the State the Jewish people “, the legal position is clearer. Crime against the connection between the an part of the law of nations. the Jewish people “, as defined in the Law, constitutes in effect constitutes an integral very attempt to exterminate the Jewish people, or a partial extermination The massacre of millions of Jews by the Nazi criminals that was one of the Jewish people. If an effective link (not necessarily an identity) nearly led to the extinction of the Jewish people in Europe existed between the State of Israel and the Jewish people, then a of the major causes for the establishment of the State of the survivors. in the crime intended to exterminate the Jewish people has an indubitable The State cannot be cut off from its roots, which lie deep also connection with the State of Israel. catastrophe which befell European Jewry. in The connection between the State of Israel and the Jewish Half the citizens of the State have immigrated from Europe 34. There people needs no explanation. The State of Israel was established recent years, some before and some after the Nazi massacre. sisters, and recognized as the State of the Jews. The Declaration of the is hardly one of them who has not lost parents, brothers and Establishment of the State of Israel of lyar 5, 5705 (May i, 1948) and many their spouses and their offspring in the Nazi inferno. (Official Gazette No. i) opens with the words: “Eretz-Israel was In these circumstances, unprecedented in the annals of any history of there are the birthplace of the Jewish people “; it dwells on the other nation, can there be anyone who would contend that the Jewish people from ancient times until the Second World War; not sufficient “linking points” between the crime of the extermina it refers to the Resolution of the United Nations General Assembly tion of the Jews of Europe and the State of Israel? Jewish of November 29, 1947, calling for the establishment of a Learned defence counsel contends that in the absence of a of the Jewish 35. State in Palestine; it lays down the “natural right “recognized linking point” the principle of territoriality alone other nations in people to be masters of their own fate, like all takes effect with respect to the crimes attributed to the accused. “, “ establishment of their own sovereign State and proclaims the On this principle, at least i8 countries may try the accused for the State of Israel “. a Jewish State in Eretz-Israel, to be known as the offences specified in the indictment, and had one or several of such further proof of It would appear that there is hardly need for any countries prosecuted the accused for the extermination of the people and the the very obvious connection between the Jewish Jews who resided there, the accused would not have had any. argu Jewish people. State of Israel: this is the soverign State of the ment against the jurisdiction of the court. In. other words, i8 the State of Moreover, the Declaration of the Establishment of nations have the right to punish the accused for the murder of the IsraëI points to the very special tragic link between the Nazi crimes COURT UDGMENT 54 THE INDiVIDUAL IN INTERNATIONAL LAW l)ISTR1CT J 55 Jews who resided in their territories, but the nation of those who legislation for the pr’otection of their citizens abroad. Counsel I’ Jewish State at the were murdered has no right to punish because they were not exter pointed out that in the absence of a sovereign minated on its soil. time of the catastrophe the victims of the Nazis were not citizens But the people is one and the crime is one. The crime attributed of the State of Israel when they were murdered. to the accused is “the killing of millions of Jews with intent to In our view learned Counsel errs when he examines the protective retroactive Law according to the time of the commis exterminate the Jewish people “. The Jewish population now principle in this residing in the State of Israel, or the Jewish Yishuv which at sion of the crimes, as is usual in the case of an ordinary law. This the time lived in Palestine, is also part of the Jewish people whom Law was enacted in Io, to be applied to a specified period which the accused sought, according to the indictment, to exterminate. had terminated five years before its enactment. The protected in Although that part of the people was rescued, it was in danger of interest of the State recognized by the protective principle is extermination, as the history of the World War shows. At all this case the interest existing at the time of the enactment of the moral events, the extermination of European Jewry which was carried out Law, and we have already dwelt on the importance of the with intent to exterminate the Jewish people was directed not only and defensive task which this Law is designed to fulfil in the State against those Jews who were exterminated but against the entire of Israel. Jewish people, including the Jewish Yishuv in Palestine. To argue 37. The retroactive application of the Law to a period preceding that there is no connection is like cutting away a tree root and the establishment of the State of Israel does not in itself constitute accused branch and saying to the trunk: “I have not hurt you.” in regard to the accused (and for that matter to any person in general, Indeed, this crime very deeply concerns the “vital interests” under this Law) a problem different from retroactivity have already dwelt above. Goodhart, in “The Legality of the State of Israel, and under the “protective principle “ this on which we April 1946, writes, State has the right to punish the criminals. In terms of Dahm’s of the Nuremberg Trial” in Juridical Review, thesis, the acts referred to in this Law of the State of Israel “concern inter alia (p. 8): in liberated countries it more than they concern other States “, and therefore according “Many of the national courts now functioning the no one has argued that they are not also to this author there exists a “linking point “. The punishment have been established recently, but . . . No of Nazi criminals does not derive from the arbitrariness of a country competent to try the cases that arose before their establishment. tried by a court which did not “abusing” its sovereignty but is a legitimate and reasonable defendant can complain that he is being the act.” exercise of a right of penal jurisdiction. exist when he committed of A people which can be murdered with impunity lives in danger, What is here said of a court which did not exist at the time which to say nothing of its “honour and authority” (Grotius). This the commission of the crime is also valid with respect to a State political has been the curse of dispersion and the want of sovereignty of the was not sovereign at the date of the crime. The whole since people of Israel, upon whom any criminal could commit his outrages landscape of the Continent of Occupied Europe has changed without fear of being punished by the people injured. Hitler and the war; boundaries have changed, as has also the very identity his associates exploited the defenceless position of the Jewish people of previous States, but none of this concerns the accused. but in their dispersion, in order to perpetrate their total murder in 38. All the above has been said in relation to the accused; it was cold blood. It was to provide some modicum of redress for the may a new State try at all crimes that were committed before Katz-Cohen terrible injustice of the catastrophe that the sovereign State of the established? The answer to this question was given in it was decided Jews, which enables the survivors to defend its existence by State v. Attorney-General (1949) 2 Piske Din 225,’ where committed means, was established on the recommendation of the United Nations. that the Israel courts have full jurisdiction to try offences spite of the One of the means therefor is the punishment of the murderers before the establishment of the State, and that “in who did Hitler’s contemptible work. It is for this reason that the changes in sovereignty there subsists a continuity of law “. Law in question was enacted. I cannot 5CC [said President Smoira] why that community in the 36. Defence counsel contended that the protective principle country against whom the crime was committed should not demand the cannot apply to this Law because that principle is designed to punishment of the offender solely because that community is now governed protect only an existing State, its security and its interests, whereas by the Government of Israel instead of by the Mandatory Power.” the State of Israel did not exist at the time of the commission of This was said with respect to a crime committed in this country, the said crimes. In his submission the same applies to the principle but there is no reason to assume that the law would be different with of “ passive personality” which stems from the protective principle, and otwhich some States have made use through their penal [1 Annual Digest, i6 (5948), p. 68.] 56 THE INDIVIDUAL IN INTERNATIONAL LAW DiSTRICT COURT JUDGMENT 57 respect foreign to offences. Had the Mandatoiy legislator enacted at [ oniy want of sovereignty that denies it the power to try and punish the time extraterritorial an law for the punishment of war criminals the offender. If the injured group or people thereafter achieves (as, for example, the Australian legislator had done in the War political sovereignty in any territory, it may exercise such sovereignty Criminals Act, 1945; see Section 12), it is clear that the Israel court for I he en IoIc(’mellt of its natural right to punish the offender who would have been competent to try under such Law offences com injured it. mitted abroad prior to the establishment of the State. The principle All this applies to the crime of genocide (including the “ crime of continuity applies also to the power to legislate: the Israel against the Jewish people “) which, although committed by the legislator may amend or supplement Mandatory legislation retro killing of individuals, was intended to exterminate the nation as a actively by enacting laws applicable to criminal acts which were group. in accordance with Hitler’s murderous racial theory the committed prior to the establishment of the State. Nazis singled out Jews from the rest of the civilian population in all Indeed, this retroactive Law is designed to fill a gap in the laws the countries of their domination and sent the Jews to their death of Mandatory Palestine, and the interests protected by this Law solely because of their racial affiliation. Even as the Jewish people existed also during the period of the Jewish National Home. The constituted the object against which the crime was directed, so it Balfour Declaration and the Palestine Mandate given by the League is now the competent subject to place on trial those who assailed its of Nations to Great Britain constituted international recognition of existence. The fact that this people has since the catastrophe the Jewish people,1 of the historical link of the Jewish people with changed from object to subject, from the victim of racial crime to Eretz-Israel and their right to re-establish their National Home in the possessor of authority to punish the criminals, is a great historic that country. The Jewish people has in fact made use of this right, right that cannot be abrogated. The State of Israel, the sovereign and the National Home developed until it reached sovereign status. State of the Jewish people, performs through its legislation the task During the period preceding the establishment of the sovereign of carrying into effect the right of the Jewish people to punish tlie State the Jewish National Home may be regarded as reflecting the criminals who killed its sons with intent to put an end to the survial rule nasciturus pro jam nato habetur.2 The Jewish Yishuv in Palestine of this people. We are convinced that this power conforms to the constituted during that period a “potential State “, which attained subsisting principles of the law of nations. in due time sovereign status. The want of sovereignty made it impossible for the Jewish Yishuv in this country to enact a criminal For all these reasons we have rejected the first submission of the defence against the jurisdiction of the Court. law against the Nazi crimes at the time of their commission, but counsel for these crimes were also directed against that Yishuv which constituted 39. We should add that the well-known judgment of the an integral part of the Jewish people, and the enactment with retro Permanent Court of International Justice at The Hague in the active application of the said Law by the State of Israel filled a need Lotus Case111 ruled that the principle of territoriality does not limit which had already existed previously. the power of a State to try crimes and, moreover, that any argument These historical facts explain the background of the legislation against such power must point to a specific rule in international law in question; but it seems to us that from a legal point of view the which negates that power. We have followed this principle which, power of the new State to enact retroactive legislation does not so to speak, shifts the “ onus of proof” upon him who pleads against depend solely on that background, nor is it conditional upon the jurisdiction, but have preferred to base ourselves on positive reasons continuity of law between Palestine and the State of Israel. Let us for upholding the jurisdiction of the State of Israel. take an extreme example: let us assume that the gipsy survivors, 40. The second contention of learned defence counsel was that an ethnic group or people who were also, like the Jewish people, the trial of the accused in Israel following upon his kidnapping in a foreign land, is in conflict with international law and takes away victims of the “ crime of genocide “, would have gathered after the war and established a sovereign State in some part of the world. It the jurisdiction of this Court. Counsel argued that the accused, who seems to us that no principle of international law could have denied had resided in Argentina under an assumed name, was kidnapped the new State the inherent power to put on trial all those destroyers on May II, 1960, by agents of the State of Israel and forcibly brought of its people who fell into its hands. The right of the injured group to Israel. He requested that two witnesses be heard in proof of his to punish offenders derives directly, as Grotius explained (see supra), contention that the kidnappers of the accused acted on orders from the crime committed against them by the offender, and it is received from the Government of Israel or its representatives, a contention to which learned counsel attached considerable import 1 See N. Feinberg, “The Recognition of the Jewish People in International Law “, ance in order to prove that the accused was brought into Israel’s in Jewish Yearbook of International Law, 1948, p. 15, and the authorities there cited. 2 Ibid,— [1 Annual Digest, 4 (1927—i928), p. 153.] 276 THE INDIVIDUAL IN INTERNATIOIL LAW SUPREME COURI’ J UD(xiVth.IN 1 277 and German-occupied areas and their transportation to the German- TEXT OF JUDGMENT OF THE SUPREME COURT occupied regions in the East. It has not been proved before us that the accused knew that the gipsies were being transported to May 29, 1962 extermination. I. (12) We convict the accused pursuant to the twelfth Count of a i. The appellant, Adolf Eichmann, was found guilty by the crime against humanity, an offence under Section i (a) (2) of the District Court of Jerusalem of offences of the most extreme gravity above-mentioned Law, in that in 1942 he, together with others, against the Nazi and Nazi Collaborators (Punishment) Law, 1950 caused the deportation of 93 of the children of the Czech village of (hereinafter referred to as “the Law “) and was sentenced to death. Lidice. It has not been proved before us that the accused is guilty These offences may be divided into four groups: of the murder of these children. (i3) We acquit the accused of the charges of membership in (a) Crimes against the Jewish people, contrary to Section (a) (i) hostile organizations under Counts thirteen, fourteen and fifteen, of the Law; with respect to the period until May 1940, by reason of these offences (b) Crimes against humanity, contrary to Section i (a) (z); having become prescribed. (c) War crimes, contrary to Section i (a) (s); (14) We convict the accused pursuant to the thirteenth Count (d) Membership of hostile organizations, contrary to Section 3. of membership of a hostile organization, an offence under Section 3 2. The acts constituting these offences, which the Court attributed (i) of the above-mentioned Law, in that as from May 1941 he was to the appellant, have been specified in paragraph 244 of the judgmen a member of the organization known as Schutzstaffeln der N.S.D.A P. of the District Court (see p. 272, above). (S.S.) which was declared a criminal organization by the Interna The acts comprised in Group (a) are: tional Military Tribunal which tried the Major War Criminals, and (i) that during the period from August 1941 to May 1945, in Germany, as a member of such organization took part in acts that were declared in the Axis States and in the areas which were subject to the authority criminal in Article 6 of the London Charter of August 8, 1945. of Germany and the Axis States, he, together with others, caused the (15) We convict the accused pursuant to the fourteenth Count killing of millions of Jews for the purpose of carrying out the plan known of membership of a hostile organization, an offence under Section as “the Final Solution of the Jewish Problem” with the intent to 3 (a) of the above-mentioned Law, in that as from May 1941 he was exterminate thejçwish pele; a member of the organization known as Sicherheitsdienst des it during thaTeriOd and in the same places he, together with Reichsfuehrers SS (S.D.) which was declared a criminal organization others, placed millions of Jews in living conditions which were calculated by the International Military Tribunal which tried the Major War to bring about their physical destruction, for the purpose of carrying out the plan above mentioned with the intent t exterminate the Jewish Criminals, and as a member of such organization took part in acts people; declared criminal in Article 6 of the London Charter of August 8, () that during that period and in the same places he, together with 1945. others, caused serious ph sical and mental h UQJJziliions of Jews with (16) We convict the accused pursuant to the fifteenth Count, of the intent to exterminate t e ewish people; membership of a hostile organization, an offence under Section 3 (a) () that during the years 1943 and ig4 he, together with others, of the above-mentioned Law, in that he was from May 1940 a “devised measures the purpose of which was to revent births amon member of the organization known as the Geheime Staalspolizei, Jews by his instructions which was declared a criminal organization by the International ruption of pregnancies of Jewish women in the Theresin Ghetto with the Military Tribunal which tried the Major War Criminals, and as a intent to exterminate the Jewish people”. member of such organization took part in acts which were declared The acts constituting the crimes in Group (b) are as follows: criminal in Article 6 of the London Charter of August 8, 1945. (5) that during the period from August 1941 to May 1945 he, together [Report: (1965) 45 Pesakim Mehoziim 3 (in Hebrew).] with others, caused in the territories and areas mentioned in clause (i) the.juiurder, extermination, enslavement, starvation and deportation of Eichmann appealed against conviction and sentence. the civilian. Jewish population; (6) that during the period from December 1939 to March ‘94’ he, together with others, caused the deportation of Jews to Nisco, and the deportation of Jews from the areas in the East annexed to the Reich, and from the Reich area proper, to the German Occupied Territories in the East? and to France;