Archive/File: people/e/eichmann.adolf/transcripts/Appeal/Appeal-Session-07-03 Last-Modified: 1999/06/15 Be that as it may, this distinction, too, loses its force in this Appeal, since the Court found (paragraph 206 of its Judgment) that "all acts of persecution, deportation and murder in which the Accused took part, as we have found in discussing Crimes against the Jewish People and against Humanity, also constitute War Crimes within the meaning of Section 1(a)(3) of the Law, as far as they were committed during World War II, and the Jews, who were the victims of these acts, belonged to the population of the countries conquered by the Germans and the other Axis States." (3) As to the fourth category - `Membership of a Hostile Organization' - the Court did not, for the purpose of the conviction, content itself with the fact that the Appellant was a member of the Nazi organizations in question, but also based the conviction on the additional fact that, as such, the Appellant participated in a criminal operation which was expressly pronounced by the Nuremberg Tribunal to be a crime within the meaning of the Charter, that is, the crime of the extermination of Jews during the war years (paragraphs 214, 215). All this goes to show that the above-mentioned categories of crimes, especially the first three, are interdependent, and we may, therefore, for the purpose of our reasoning at this stage, group them within the inclusive category of `Crimes against Humanity.' It must be emphasized that they are all crimes that demand mens rea on the part of the perpetrator. 11. The first proposition. Our view that the crimes in question must be seen today as crimes which in the past, too, were banned by the Law of Nations and entailed individual criminal liability, is based upon the following reasons: (a) As is well known, the rules of the Law of Nations are not derived solely from international treaties and from crystallized international usage. In the absence of a supreme legislative authority and international codes, the process of its evolution resembles that of the common law; in other words, its rules are fashioned piecemeal, by analogy with the rules embedded in treaties and custom, on the basis of "general principles of law recognized by civilized nations," and in the light of the vital international needs that impel towards an immediate solution. A principle which constitutes a common denominator for the judicial systems of numerous countries must clearly be regarded as a "general principle of law recognized by civilized nations." This is not the place to deal exhaustively with this wide theme; to elucidate our view we confine ourselves here to citing a few excerpts from the writings of eminent international jurists, these being themselves an important auxiliary source of the principles inherent in the law of nations. When international tribunals are confronted with a `novel case,' wrote Lauterpacht in his Functions of Law in the International Community: "They may proceed either by analogy with specific rules of international law, or by recourse to general principles of international law...(or) by shaping a legal rule through the process of judicial reconciliation of conflicting legal claims entitled to protection by law...(or) by a consideration of the larger needs of the international community." And he added: "It happens frequently that when an international tribunal is confronted with a seemingly novel situation, although there is no rule of international law directly applicable to the case before the court, international law regulates expressly some similar situation. It is to these rules that the tribunal has recourse in dealing with a case primae impressionis." Stone, too, wrote (op. cit., p. 369): "...International law resembles an uncodified common law system...development is rather from case to case, though as much on the customary as on the judicial level." (See, in the same sense, Woetzel in Nuremberg Trials in International Law, p. 115.) All this means that customary international law is never stagnant, but is rather in a process of constant growth, as Sheldon Glueck stressed (in his article in the Harvard Law Review, vol. 59, p. 414): "... Customary international law...is as obviously subject to growth as has been the law of any other developing legal order, by the crystallization of generally prevailing opinion and practice into law under the impact of common consent and and the demands of general world security." And on p. 418: "Every recognition of custom as evidence of law must have a beginning some time." Noteworthy, too, is the explanation by that author (op. cit., p. 110) that a general rule of law recognized by the civilized nations does not simply mean: "private law `writ large.' It means that where a legal principle is so generally accepted by various nations as to be a common denominator of practically all civilized systems, it is justifiably applicable also by an international tribunal." In view of the resemblance between the nature of common law and that of customary international law, it would be pertinent to quote here the famous dictum of Holmes (in his book The Common Law, p. 1): "the life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious...have had a good deal more to do than the syllogism in determining the rules by which men should be governed." Compare the state of Lord Wright (in his introduction to his book History of the United Nations War Crimes Commission (1948), p. 8): "International law...has grown and developed from the workings of the moral impulses and needs of mankind by a sort of instinctive growth, as well as by edicts or decrees or authoritative pronouncements... Indeed, it is itself a body of customary law. Its dictates take shape and definition particularly when acted upon and recognized by the common consensus of mankind and are administered and enforced by competent courts." Finally, what has been said above applied with even greater force to the criminal branch of international law which, it is universally admitted, is as yet at the initial - one might even say `primitive' - stage of its development. Here, too, Glueck has aptly described the position when he wrote (see his above-mentioned article, pp. 416-418): "In the international field...as in the domestic, part of the system of prohibitions implemented by penal sanctions consists of customary or common law... "During the early stage (or a particularly disturbed stage) of any system of law - and international law is still in a relatively undeveloped state - the courts must rely a great deal upon non-legislative law, and thereby run the risk of an accusation that they are indulging in legislation under the guise of decision, and are doing so ex post facto. Whenever an English common-law court for the first time held that some act not previously declared by Parliament to be a crime was a punishable offence for which the doer of that act was now prosecuted and held liable, or whenever even a court, for the first time more specifically than theretofore defined the constituents of a crime and applied that definition to a new case, the court in one sense `made law.' Yet, fundamentally, it thereby did no violence to the technique of law enforcement or the requirements of man-made justice, unless it acted most unreasonably and arbitrarily.... "It is true that the command which the accused was held to have violated did not come directly and specifically from the legislature or sovereign; but since the prohibition represented the consensus of the people as contained in customary usage, it contained enough of the imperative element to warn its prospective violators, to impel judges to recognize it as an existing part of the law of the land and to hold its violators guilty of a crime. So it is with modern international common law ..." (b) When we come to consider - with reference to the crimes with which we are here concerned - how the method explained in the excerpts set out above actually works in practice, it becomes essential to dwell first on the features which identify crimes that have long been recognized by customary international law. On doing so, we shall find that these include, among others, the following features: They constitute acts which damage vital international interests; they impair the foundations and security of the international community; they violate universal moral values and humanitarian principles which are at the root of the systems of criminal law adopted by civilized nations. The underlying principle in international law that governs such crimes is that the individual who has committed any of them and who, at the time of his act, may be presumed to have had a thorough understanding of its heinous nature, must account in law for his behaviour. It is true that international law does not establish explicit and graduated criminal sanctions; that there is not as yet in existence either an International Criminal Court, or international machinery for the imposition of punishment. But, for the time being, international law surmounts these difficulties - which themselves reflect its present low stage of development - by authorizing the countries of the world to mete out punishment for the violation of its provisions. This they do by enforcing these provisions either directly or by virtue of the municipal legislation which has adopted and integrated them. Let us explain this by three illustrations: (1) The classic example of a `customary' international crime, also mentioned by the District Court, is that of piracy jure gentium. A person who committed this crime, said Judge Moore in his dissenting judgment in the Lotus case (p. 70), "is treated as an outlaw, as the enemy of all mankind - hostis humani generis - whom any nation may in the interest of all capture and punish. Wheaton defines piracy by law of nations as murder or robbery committed on the high seas by persons acting in defiance of all law, and acknowledging obedience to no flag whatsoever." In the report submitted to the League of Nations by the Committee for the Progressive Codification of International Law, the emphasis was placed on the interests of world trade which are endangered by that offence: "It constitutes a crime against the security of commerce on the high seas." (Quoted from The Law of Nations by Briggs, 2nd edition, p. 390.) Again, Robert Lansing (who was the American Secretary of State during World War I), in his notes in the American Journal of International Law (1921), p. 25, alluded to the universal character of this crime (a "crime against the world") and compared it with the slave-trade ("which is a crime against humanity"). Important, too, are the remarks of Kelsen in his book General Theory of Law and State (pp. 344-345) on the principle of the individual responsibility borne by the perpetrator of this offence, and the way in which international law attains the object of punishing therefor: "The sanction provided against piracy is not directed against a state and, in particular, not against the state of which the pirate is a citizen. The sanction is directed against a pirate as an individual who has violated international law. This sanction of international law is executed according to the principle of individual responsibility." Also: "The sanction itself, however, need not be determined by the international legal order; it may be specified by the national legal order which international law delegates to this end." (2) As an example of customary international law, an instructive case came before an American court in 1784 in which a person was tried for threatening to assault the secretary of the French Diplomatic Mission (Respublica v. De Longchamps, 1 Dallas 110). In sentencing him to a fine and imprisonment for this offence, Chief Justice McKean of Pennsylvania said: "The first crime in the indictment is an infraction of the law of nations. This law, in its full extent is part of the law of this state, and is to be collected from the practice of different nations and authority of writers. The person of a public minister is sacred and inviolable. Whoever offers any violence to him not only affronts the sovereign he represents, but also hurts the common safety and well- being of nations: - he is guilty of a crime against the whole world ... You then have been guilty of an atrocious violation of the law of nations." (3) The last example - one which has closer relevance to our case - is that of a `war crime' in the conventional sense. It will be recalled that the reference here is to the group of acts, committed by members of the armed forces of the enemy, which are contrary to the `laws and customs of war.' These acts are seen as constituting, in essence, international crimes; they entail the violation of the provisions of customary international law which preceded the Geneva Conventions of 1907 and subsequent Conventions, whereas such Conventions merely `declared' the rules of warfare, as dictated by recognized humanitarian principles. Those crimes entail individual criminal responsibility because they undermine the foundations of international society and are repugnant to the conscience of civilized nations. When the belligerent state punishes for such acts, it does so not only because persons who were its nationals - be they soldiers taken prisoner by the enemy or members of the civilian population - suffered bodily harm or material damage, but also, and principally, because they involve the perpetration of an international crime in the avoidance of which all the nations of the world are interested. An article by Lauterpacht, "Law of Nations and Punishment of War Crimes" (British Yearbook of International Law, 1944, vol. 21, p. 64) lends support to the above description of crimes of this type: "War criminals are punished, fundamentally for breaches of international law. They become criminal according to the municipal law of the belligerent only if their action finds no warrant in, and is contrary to, international law. When, therefore, we say that the belligerent inflicts punishment on war criminals for the violation of his municipal law, we are making a statement which is correct only in the sense that the relevant rules of international law are being applied, by adoption or otherwise, as the municipal law of the belligerent. Intrinsically, punishment is inflicted for the violation of international law." On page 65 he referred to the provision of the Geneva Convention No. IV, 1907, which imposed on the belligerent state that had violated the terms of the Convention, the obligation to pay indemnity for physical and material damage caused by it. That provision, he emphasized, did not exclude the responsibility of the individual to account in law for any violation by him of the rules of war or the customary right of states to punish enemy individuals for the violation of rules of war." He added (ibid.): "...the Hague Conventions...formulate and are largely declaratory of the fundamental rules of warfare as directed by generally recognized principles of humanity... In their broad purpose...these international conventions are expressive, in the words of the preamble of Hague Convention No. IV, `of the principles of the law of nations, derived from usages established among civilized peoples, from the laws of humanity, and from the dictates of public conscience'." It was in the spirit of this approach that the United States Supreme Court ruled in ex parte Quirin (1942, 87 L. ed. 3, 12, 13) that the accused were criminally liable for acts contrary to the laws of war on the ground that these laws were always recognized and applied as part of the law of nations: "from the very beginning of its history this Court has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals. By the Articles of War...Congress has...exercised its authority to define and punish offences against the law of nations by sanctioning, within constitutional limitations, the jurisdiction of military commissions to try persons for offences which, according to the rules and precepts of the law of nations, and more particularly the law of war, are cognizable by such tribunals." The Supreme Court reaffirmed this view in re Yamashita (1945, 96 L. ed. 499, 504).
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