Archive/File: people/e/eichmann.adolf/transcripts/Appeal/Appeal-Session-02-04 Last-Modified: 1999/06/15 Justice Silberg: Is this an official publication? Attorney General: Yes, this is published by the U.N. War Criminals Commission: "The view of the problem most commonly adopted seems, however, to be that since the rule against the enforcement of ex post facto law is in essence a principle of justice it cannot be applied in war crime trials where the ends of justice would be violated by its application." Justice Agranat: Is that cited in the Judgment? Attorney General: It is referred to by me. We have a card index of the Judgment and we can locate it immediately. Apparently no one disputes this. He argues that we cannot enact our Law which would apply to acts carried out in another country or performed on behalf of the state. The reply to this is to be found in Paragraph 8 of the Judgment. I would just add several comments. It is argued that the Law, which punishes acts carried out in another country and punishes foreign citizens for such acts, contradicts international law; in other words, that a state is not entitled to try and punish any acts other than those carried out within its territory or carried out by its citizens. This is a wrong argument. This is what international law always laid down, and in any case this has been explicitly stated in the judgment of the International Court in The Hague. President: Mr. Hausner, did you cite Paragraph 8 of the Judgment? Attorney General: Yes, Paragraph 8 of the Judgment. President: That is not correct. Justice Silberg: Paragraphs 9, 10, 11. President: In Paragraph 8 there is only the text of the arguments. Attorney General: I should have said: from Paragraph 8 onwards. Thank you very much. It is my contention that the principle of exclusive territorial legislation is not accepted in international law. Moreover, this is explicitly stated in the well-known judgment of the International Court at The Hague in the "Lotus" case. As the Court will remember, the Lotus was a French ship which was sailing on the high seas towards the Turkish coast, and collided with a Turkish vessel, the Boz Kourt. The collision occurred on the high seas, in other words outside Turkish territorial waters. Several Turkish citizens were killed in the collision. When the French ship reached Constantinople, the officer of the watch was charged with the criminal offence of manslaughter, under Section 6 of the Turkish Criminal Law which makes it possible to try in Turkey an individual who has harmed the Turkish State or a Turkish citizen anywhere. Justice Agranat: What is the corrrect reference for the "Lotus"? Attorney General: I have the judgment here. Justice Agranat: I gather that the International Court did not endorse this approach. Attorney General: It did not base the right of retroactive legislation on the Lotus case specifically. I would therefore like to add this view of the matter in order to reinforce and add weight to the Court's findings. The Lotus judgment came out in a special issue. Justice Agranat: If I am not mistaken, we referred to or relied on the Lotus ruling in the Amsterdam case. Attorney General: I believe that is correct. Justice Silberg: What is the reference? Attorney General: I will read several citations. The Court will find the main observations on pages 19, 20 and 23. On page 19 the Court discusses the possibility of enacting legislation limited to territorial matters, and it says: "Such a view would only be tenable if international law contained a general prohibition to States to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, and if, as an exception to this general prohibition, it allowed States to do so in certain specific cases. But this is certainly not the case under international law as it stands at present. Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable." On Page 20: "Though it is true that in all systems of law the principle of the territorial character of criminal law is fundamental, it is equally true that all or nearly all these systems of law extend their action to offences committed outside the territory of the State which adopts them, and they do so in ways which vary from State to State. The territoriality of criminal law, therefore, is not an absolute principle of international law and by no means coincides with territorial sovereignty." Justice Agranat: What was the minority opinion in that case? Attorney General: The minority based itself on several principles which linked rights of legislation and jurisdiction to territory. For example, England's Lord Finlay, who advocated the right of territorial limitation, found no basis for this approach other than Oppenheim's view in his book on International Law, 3rd edition, 1920. This was the book that Lord Finlay had before him at the time. In that section it says that a state has no jurisdiction to try foreign subjects for offences committed outside its borders. Justice Silberg: Was there not a question of interpretation that arose, as in our Amsterdam case, or was this a question of the right to legislate? Attorney General: It was a question of the right. Justice Agranat: It was not just that, it was a question of an accused who was not a subject of that country. Attorney General: As far as subjects of that country are concerned, Counsel for the Defence also says: You could have done that, but you cannot make a law for others. That is the reason why I cited the Lotus case, in which it was not a Turkish subject but a French subject who was put on trial. In the same section, in the eighth edition of Oppenheim's book, in the same paragraph on which Finlay based himself, it is already put differently. And on page 331, Section 147, it says specifically that the practice of states is to enact laws which have extraterritorial application and that this is simply common sense. Oppenheim's editor, the late Prof. Lauterpacht, in Volume 9 of the Cambridge Law Journal has an article entitled, "Allegiance, Diplomatic Protection and Criminal Jurisdiction over Aliens." On page 345 he writes as follows: "There is international authority - in the Judgment of the Permanent Court of International Justice in the Lotus Case - in support of the extension, by reference to the place of effect, of the territorial principle. In that case the Court accepted as a valid proposition of law that `it is certain that the courts of many countries, even of countries which have given their criminal legislation a strictly territorial character, interpret criminal law in the sense that offences, the authors of which at the moment of commission are in the territory of another State, are nevertheless to be regarded as having been committed in the national territory, if one of the constituent elements of the offence, and more especially its effects, have taken place there'." And on page 348 he repeats that territoriality "is not a requirement of justice or a necessary postulate of the sovereign state." Consequently, if Justice Finlay were today looking for the reference he previously found in Lauterpacht's book for his dissenting opinion about the judgment - he would not find it. In the trial of William Joyce - of which mention is made in Paragraph 30 of our Judgment - the House of Lords discussed this issue and decided unequivocally that a crime of treason committed outside the borders of England is an offence which the English courts are competent to try. If this is true of ordinary criminal legislation, it is even more valid for universal crimes, which have been defined by the family of nations as the most heinous acts ever known in history. If piracy is considered an offence that jeopardizes the peace of all nations and therefore every single nation has the authority to judge and punish those who commit it, especially on the high seas, that territory which is shared by all peoples, then according to the same principle and for the same reasons, crimes which are international in nature, which affect an entire continent, which harm an entire people, and consequently affect the whole of humanity, are of a comprehensive nature and every single state is competent to judge and punish those who commit them. This leads to a clear-cut conclusion: that the universality of the law gives each state the right to claim its own jurisdictional power and its own penal power in respect of a universal offence. For something that is forbidden anywhere and everywhere in the eyes of organized human society can be judged and punished anywhere and everywhere. When, in a 1946 resolution, the United Nations Assembly adopted the Nuremberg principles and the London Agreement, it de facto determined that a crime against humanity is a crime with universal incidence. In the Justices Case, Volume 3, Green Series, pp. 954 ff., the following passage is cited, which is also referred to in Paragraph 26 of the Judgment: "Within the territorial boundaries of a state having a recognized, functioning government presently in the exercise of sovereign power throughout its territory, a violation of the rules of international law could be punished only by the authority of the officials of that state. The law is universal, but such a state reserves unto itself the exclusive power within its boundaries to apply or to withhold sanctions..." Justice Silberg: Are you arguing, Mr. Attorney General, that the Nuremberg Tribunals created substantive international law? Attorney General: No, they simply wrote it down, they put it into words, they did not create it. Consequently, when, in 1950, the Knesset of the State of Israel enacted the Nazis and Nazi Collaborators (Punishment) Law, the resolution of the United Nations Assembly had already been in existence for four years, confirming that the principles of international law as recognized by the London Charter and the Nuremberg international judgment were the patrimony of all nations. Nor is it true that only an international court can judge war crimes. The countries overrun by Hitler made their own laws for judging war criminals. I have in my possession photostatic copies which I also submitted in the Lower Court and with which I am prepared to provide the Court here, of the laws of Austria, Bulgaria, Belgium, Canada, Denmark, Finland, Greece, Holland, Hungary, Luxembourg, Norway, Poland, Romania and Yugoslavia. All these countries enacted in consequence of, or immediately after, the War laws for the punishment of crimes of the kind committed by Adolf Hitler: They are all retroactive, and they did not wait for the establishment of an international court, nor did they confer competence on German courts - of all courts. I shall not analyse all these laws, but the Court will find that those countries which were most attached to the territorial principle, such as Holland, for example, specified in their law: "This Decree introduced heavier punishment, including the death penalty for certain crimes existing in the penal code, made certain crimes punishable by the Netherlands judges even if committed outside the country." Justice Silberg: Did you also refer to Canada? Attorney General: Yes. Justice Silberg: In other words, that could serve as an authority that when both these matters are linked, when the law is both extraterritorial as well as retroactive, that, too, is possible? Attorney General: Yes. Justice Silberg: Because Servatius' argument was that it may be possible to enact an extraterritorial law and it may be possible to enact a retroactive law, but it is not possible to enact a law which is both extraterritorial and retroactive. Attorney General: That is correct. But also, it cannot be otherwise. Let us consider what was the subject matter. Germany had abrogated the law. We have also submitted the letter of the German Minister of Justice, and then the victors came after the War. What should they have done? Say that after a group of criminals came along, which dethroned the law and trampled on it, to say for that reason, "there was no law, retroactive legislation is impossible, things will be allowed to pass unjudged" - or should we say that the principle of legislation is ex post facto as well as extraterritorial: It is a question of justice. And there is something greater even here - that such heinous acts should not remain unpunished. There has been much talk of nullum crimen sine lege and nullum poena sine lege, but it is of course unthinkable that we should reach a situation of nullum crimen sine poena. It is unthinkable that the most heinous crimes should be committed and then we should say, "in terms of formal principles we have no way of imposing punishment." In the collection to which I have already referred, the Law Reports of Trials of War Criminals, the Court will find in Volume 15, at pages 27, 28, 31, 32 and 44, descriptions of laws enacted in various countries for punishing war criminals and the extraterritorial jurisdiction thus conferred on them. On page 27 it says: "Here the right, long recognized under international law, to try war crimes committed by enemy nationals, has been extended so as to include a right to try crimes against humanity and crimes against peace as well." This is the same right enjoyed prior to this by every state to punish what was called a "war crime" in the restricted sense; this right has now been extended and transferred, under the laws of various countries, also to trying crimes against humanity. Justice Silberg: When was it extended? Attorney General: In the wake of the two world wars, particularly World War II. On page 28 the Court will find a description of how "The legal basis under Municipal Law of the various Courts, Commissions and Tribunals set up to try alleged war criminals and similar offenders necessarily varies somewhat from country to country, but it is not necessary in a survey of international criminal law to indulge in any extensive comparative study of the sources under Municipal Law of war crimes jurisdiction." Norway enacted a law allowing it to conduct proceedings in Norway for crimes committed during the War outside Norwegian territory which harmed Norwegian subjects or Norway's interests. France enacted a similar law in respect of matters which harmed French persons or persons under French protection. It is the universality of the offence which created the universality of jurisdiction. Crimes against humanity by their very nature breach territorial boundaries and cannot be restricted to a particular place, nor in their respect can jurisdiction be restricted to any particular court.
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