The Nizkor Project: Remembering the Holocaust (Shoah)

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And on page 17, in paragraph 13 of the judgment, he states:

     "As far as the question of the incorporation of the
     principles of international law in the national law is
     concerned, we adhere to the words of Blackstone in his
     Commentaries on the Laws of England. And this is what
     Blackstone says (Book 14, Chapter Five) - here I quote
     in English:
     "...In England...the law of in
     its full extent by the common law, and is held to be a
     part of the law of the land. And those Acts of
     Parliament which have from time to time been made to
     enforce this universal law... are not to be considered
     as introductive to any new rule but merely as
     declaratory of the old fundamental constitutions of the
     kingdom without which it must cease to be part of the
     civilized world'."

Presiding Judge: What page is this?

Attorney General: This is on page 17.

This is the end of the quotation from "Blackstone." And the
late Justice Heshin continues:

     "This is the position also in other countries, such as
     the United States of America, France, Belgium and
     Switzerland where the usages of international law have
     been recognized to be part of the national law, even
     though some of them uphold the principle of the
     territorial jurisdiction of their own Courts."

Presiding Judge: Was this the judgment of the Court, or was
it the opinion of Justice Heshin?

Attorney General: This was the majority opinion - Judge
Witkon concurred with Justice Heshin, while Justice Goitein
gave a dissenting judgment.

I quote from page 17:

     "But in addition to everything that has been said, it
     seems to me that even if we cannot be assisted by
     Article 46 of the Order-in-Council and by Article 1 of
     the aforementioned English Act of 1849, we still have
     to decide that the said principle has become part of
     the laws of this country by virtue of Israel being a
     sovereign country and standing on its own authority.
     The Declaration of Independence procured for the new
     State access to international laws and practices which
     all states enjoy by virtue of their sovereignty, and
     enriched its legal system by the accepted principles of
     the Law of Nations. We are no longer obliged to obtain
     these principles second-hand, through subsidiary
     channels which have been specially provided, since
     today we are able by virtue of the State of Israel's
     being a member of the family of nations, to draw
     directly from the sources by virtue of the final
     passage of Section 11 of the Administration and Law
     Ordinance, or even without this paragraph and without
     any connection with it. The State of Israel sends its
     fleet of ships to the high seas under its own flag. The
     people who are on board these ships are protected by
     its flag and enjoy its law and its jurisdiction. For
     these reasons, I do not see anything to prevent the
     Courts from interpreting their competence so as to
     include all persons found on these ships and to try
     them according to its laws, just as any other civilized
     country would do in regard to ships flying its flag and
     in regard to the people aboard them."

Parenthetically, I would note that in countries of the
common law the principle has nevertheless been laid down
that where a contradiction can been seen to exist between
the provisions of domestic law and the provisions of
international law, the domestic law would prevail. I say
this only to complete the argument, since in my view there
is no conflict, and therefore there is no necessity at all
to include this principle. But if there were such - then the
domestic law would prevail.

And this is what Dicey says, in his tenth edition.

Presiding Judge: What is the book?

Attorney General: Dicey - The Law of the Constitution - on
page 62.

Presiding Judge: Which edition?

Attorney General: The tenth, Sir.

     "Acts of Parliament, it has been asserted, are invalid
     if they are opposed to the principles of morality or to
     the doctrines of international law. Parliament, it is
     in effect asserted, cannot make law opposed to the
     dictates of private and public morality...There is no
     legal basis for the theory that judges, as exponents of
     morality may overrule Acts of Parliament. Language
     which might seem to imply this amounts in reality to
     nothing more than the assertion that the judges, when
     attempting to ascertain what is the meaning to be
     affixed to an Act of Parliament, will presume that
     Parliament did not intend to violate the ordinary rules
     of morality, or the principles of international law,
     and will therefore, whenever possible, give such an
     interpretation to a statutory enactment as may be
     consistent with the doctrines both of private and of
     international morality. A modern judge would never
     listen to a barrister who argued that an Act of
     Parliament was invalid because it was immoral, or
     because it went beyond the limits of Parliamentary

Judge Halevi: In English law, and in the common law - and
therefore also in Israeli law, this principle such as that
of "unrichtiges Recht" to which you previously referred, is
not accepted.

Attorney General: No Sir, it is not accepted. But I referred
to it in another context altogether. If I did not explain
myself properly, perhaps I should do so again. My intention,
in regard to "unrichtiges Recht" was that it was essential
for civilized peoples to fill that void, to bridge the Nazi
anarchy. The answer of international law to the state of
anarchy was: what you at the time called laws, were not laws
but arbitrary acts. And therefore, from the year 1945
onwards, we are going to fill retroactively that vacuum
which you created when you brought the principles of law
down from their elevated status as signposts for all mankind
and decreed arbitrariness as the sole principle for your
actions. And international law says: A law which is an
"unrichtiges Recht" is no law and must not be taken into
account when international law comes to fill the vacuum
which was created by arbitrary and atrocious acts.

In Criminal Appeal 5/51, Steinberg versus the Attorney
General, Piskei Din Volume 5, page 1061, at the foot of page
1065, Justice Sussman observes as follows:

     "It is a well-known rule that in interpreting a law the
     Court will endeavour as far as possible to avoid a
     clash with national law and the rules of international
     law which are binding on the State, but this is only
     one of the laws of interpretation. For when we deal not
     with the common law but with the statute law and where
     the intention of the legislator becomes clear from the
     wording of that law, in such a case the will of the
     legislator must be implemented without taking into
     account a conflict between that law and international
     law. Possibly international law imposes a certain
     obligation upon the State, but seeing that this law
     does not deal with the relations between the State and
     its citizens, but with its relations with other States,
     this obligation is imposed only for the benefit of
     another State or States, whereas the citizen himself
     has no right to demand that it be carried out. Moreover
     the courts of this country derive their judicial powers
     from the laws of the State and not from the system of
     international law. Consequently when a person is called
     upon to account for a breach of one of the laws of the
     State, he cannot find any defence in international law,
     since the courts only pronounce judgment on relations
     between the individual and the State according to the
     local law."
But, Your Honours, I do not call upon you to rely on this
rule, seeing that there is no need for it. The Nazis and
Nazi Collaborators (Punishment) Law is nothing more than a
repetition of an Israeli version, in the light of the
special tragic version concerning the Jewish people, of
those principles which are firmly entrenched in general
international law.

In Criminal Appeal 22/52, Honigman versus Attorney General,
the late Justice Heshin discussed this law we are dealing
with. The report is to be found in Piskei Din Volume 7 on
page 296, and I read from page 303 opposite the letter e:

     "The Law we are examining" is intended to enable the
     punishment in Israel of Nazis, their associates and
     their collaborators, for the murder, destruction and
     exploitation of the Jewish people, and for their crimes
     against humanity in general."

In these terms the bill was described and we quote these
words from that source, not as a binding legal authority,
but in order to explain the background to the legislation.
And, indeed, this Law is absolutely different in its
characteristics, its legal principles and the moral
principles of its fundamental terms, and its spirit, from
all the usual enactments to be found in the criminal statute
book. This Law is retroactive and extraterritorial, and is
intended - inter alia - to serve as an authority for
punishing crimes which are not defined in the criminal law
of Israel, since they are the special outcome of the Nazi
reign of persecution, such as the handing over of a
persecuted person to a hostile regime.

Its severity is greater than that of other laws. It provides
the Courts with the authority to try, for a second time in
Israel, persons who have already been brought to trial once
abroad, for the crimes mentioned in the Law, if the full
severity of the punishment had not been meted out to them.
The normal rules of prescription have been completely
abolished in connection with the grave crimes mentioned in
this Law, and in regard to the other, lighter offences, the
usual period of prescription has been prolonged. And even
these lighter offences have been excluded from the scope of
general pardon. Special authority is given to the Courts to
deviate from the rules of evidence. What is the reason for
all these severe provisions? There is only one answer to
this: the circumstances in which these crimes were
perpetrated are extraordinary, and hence it is right and
proper that the Law, its contents, the manner of applying
it, the objective which the state seeks to achieve by means
thereof, all these, too, should be exceptional.

In his argument yesterday, Defence Counsel analysed what
seemed to him to be the objectives of our law, and if I
understand him correctly he argued that if there were room
for talking about expiation on the part of the Accused, it
would be proper to try him in Germany or some other country.
He added that the Accused as an individual could not expiate
the acts of his State which sent him to commit the crimes.
The Accused, so Defence Counsel contends, was dragged,
without any guilt on his part, into the criminal network.
This last argument would require proof, and it is still
premature to discuss it. For my part I can already say at
this point that we contend that Adolf Eichmann was not
merely a small cog in the machine, and we shall attempt to
prove to the Court that he initiated, planned, organized and
carried out the extermination of the Jewish people in
Europe. I agree that this is a factual argument which at the
present moment is a matter of dispute between Defence
Counsel and myself. I have not yet proved this, but he, too,
has not yet substantiated his argument, and consequently the
Court cannot rely on this factual argument for purposes of
this preliminary discussion.

As for expiation: there does not stand on trial before you a
repentant transgressor on his way to Canossa in order to
atone for moral offences. There stands on trial a man who is
accused of having committed crimes, and his individual
responsibility for his crimes was recognized in principle
when other war criminals were sentenced at Nuremberg and in
other countries of the world. In the judgment of the
International Military Tribunal - I read this time from
Volume 22 of the Blue Series in the English edition -

Presiding Judge: Why are you not consistent in this matter
and do not quote from the first volume?

Attorney General: This secret I can explain easily - the
books were left during the night in this locked courtroom
and when I had to prepare my authorities for this morning, I
needed this judgment for my purpose, and it is found in both

I quote from page 465:

     "It was submitted that international law is concerned
     with the actions of sovereign states and provides no
     punishment for individuals; and further, that where the
     act in question is an act of state, those who carry it
     out are not personally responsible, but are protected
     by the doctrine of the sovereignty of the state. In the
     opinion of the Tribunal, both these submissions must be
     rejected. That international law imposes duties and
     liabilities upon individuals as well as upon states has
     long been recognized. In the recent case of Ex parte
     Quirin (1942-317, US-1), before the Supreme Court of
     the United States, persons were charged during the War
     with landing in the United States for purposes of
     spying and sabotage. The late Chief Justice Stone,
     speaking for the Court, said:
     'From the very beginning of its history this Court has
     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 enemy individuals.'

He went on to give a list of cases tried by the courts,
where individual offenders were charged with offences
against the laws of nations, and particularly the laws of
war. Many other authorities could be cited, but enough has
been said to show that individuals can be punished for
violations of international law. Crimes against
international law are committed by men, not by abstract
entities, and only by punishing individuals who commit such
crimes can the provisions of international law be enforced.

The principle of international law which, under certain
circumstances, protects the representatives of a state,
cannot be applied to acts which are condemned as criminal by
international law. The authors of these acts cannot shelter
themselves behind their official position in order to be
freed from punishment in appropriate proceedings. Article 7
of the Charter expressly declares:

     'The official position of defendants, whether as heads
     of state, or responsible officials in government
     departments, shall not be considered as freeing them
     from responsibility, or mitigating punishment'."
And here follows an important paragraph:

     "On the other hand the very essence of the Charter is
     that individuals have international duties which
     transcend the national obligations of obedience imposed
     by the individual state. He who violates the laws of
     war cannot obtain immunity while acting in pursuance of
     the authority of the state, if the state in authorizing
     action moves outside its competence under international

And on page 496 and subsequent pages, where the
International Military Tribunal was dealing with crimes
against humanity and with war crimes, the Court will find
the following extract (I read from page 407 - the Chapter
begins on page 496):

     "The Tribunal is of course bound by the Charter, in the
     definition which it gives both to War Crimes and Crimes
     against Humanity. With respect to War Crimes, however,
     as had already been pointed out, the crimes defined by
     Article 6, section (b) of the Charter were already
     recognized as War Crimes under international law. They
     were covered by Articles 46, 50, 52 and 56 of the Hague
     Convention of 1907, and Articles 2, 3, 4, 46 and 51 of
     the Geneva Convention of 1929. That violations of these
     provisions constituted crimes for which the guilty
     individuals were punishable is too well settled to
     admit of argument."

And in the "Justice Case" (Green Series Vol. 3 on page 968)
it says:

     "The IMT Charter, the IMT judgment and C.C. Law 10 are
     merely 'great new cases in the book of international
     law.' They constitute authoritative recognition of
     principles of individual penal responsibility in
     international affairs..."

There was another statement in Defence Counsel's speech
regarding expiation which calls for a reply from me. If I
understood him correctly, he said: Germany has in fact
already atoned. You have received reparations. What more do
you want? I want to stress with all the emphasis at my
command that the Reparations Agreement did not seek to
atone, did not seek to cause us to forgive or to forget. For
such crimes there is no expiation, there is no forgiveness
or forgetting. We can only hope and believe that the new
generation will be different from the fathers and that
future generations will arise and that the sons will not pay
for the sins of their forbears. But for those who
perpetrated the crimes - there can be no pardon, no
forgiveness, no atonement for them. The Jewish people
remembers for over two thousand years someone who once tried
to commit genocide, possibly for the first time in history -
Haman the Agagite. It will never forget the one who
succeeded partly, in committing this crime.

Presiding Judge: How much time, in your estimation, do you
still need for argument?

Attorney General: I do not want to commit myself, but in
order to give the Court some idea, I think I shall need all

Presiding Judge: All day? And do you think that will be

Attorney General: Perhaps, Sir, seeing that we shall not be
sitting tomorrow, I shall possibly need another hour only,
on Friday morning in order to reply to some of the written
arguments after we have managed to examine them.

Presiding Judge: Apart from this - all day today?
Attorney General: Yes.

Presiding Judge: We shall adjourn now for a quarter of an
hour or twenty minutes.

Presiding Judge: Are the witnesses Tohar and Shimoni in or
near the courtroom? If so, please call them.
[The witnesses Tohar and Shimoni enter the Court.]

Presiding Judge: Mr. Tohar and Mr. Shimoni, I want to inform
you that you are free until Monday
morning of next week. From Monday onwards, you will be at
the Court's disposal upon telephonic advice to be given to
you three hours in advance. Please give your telephone
numbers to the Clerk of the Court. Meanwhile you are discharged.

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