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23. Moreover, even within the ambit of the contractual
application of the Convention, it cannot be assumed that
Article 6 is designed to limit the jurisdiction of countries
to try genocide crimes by the principle of territoriality.
Without entering into the general question of the limits of
municipal criminal jurisdiction, it may be said that there
is general agreement that customary international law does
not prohibit a state from trying its citizens for offences
they have committed abroad (and in the light of subsisting
legislation in many countries against the extradition of
their citizens the existence of such an authority is
essential to prevent criminals from behaving in a "hit and
run" manner, by fleeing to their own country).  Had Article
6 meant to provide that those accused of genocide shall be
tried only by "a competent court of the country in whose
territory the crime was committed" (or by an "international
court" which has not been constituted), then that article
would have foiled the very object of the Convention "to
prevent genocide and inflict punishment therefor."  In the
Sixth Committee, the delegates of several countries pointed
to such a case, as well as to other cases of well-
established jurisdiction in many states, such as the
commission of crimes against the citizens of the state, and
after a lengthy debate it was agreed to append the following
statement to the report of the Committee:

     "The first part of Article 6 contemplates the
     obligation of the State in whose territory acts of
     genocide have been committed.  Thus, in particular, it
     does not affect the right of any State to bring to
     trial before its own tribunals any of its nationals for
     acts committed outside the State." (U.N. Doc. A/C.
     6/SR.. 134 p. 5)

The words "in particular" are designed neither to negate nor
to affirm jurisdiction in other cases.
N. Robinson, who refers to the resolution of the Sixth
Committee, adds in his The Genocide Convention, 1960, on p.

     "The legal validity of this statement is, however, open
     to question.  It was the opinion of many delegations
     that `Article 6 was not intended to solve questions of
     conflicting competence in regard to the trial of
     persons charged with Genocide; that would be a long
     process.  Its purpose was merely to establish the
     obligations of the State in which an act of Genocide
     was committed'  F (A/C.6/SR. 132, p. 9).  However, as
     the chairman rightly pointed out, the report of the
     Sixth Committee could only state that a majority of the
     Committee placed a certain interpretation on the text;
     that interpretation could not be binding on the
     delegations which had opposed it.  `Interpretation of
     texts had only such value as might be accorded to them
     by the preponderance of opinion in their favor' F
     (A/C.6/SR. 132, p. 10).  It is obvious that the
     Convention would be open to interpretation by the
     parties thereto; should disputes relating to the
     interpretation arise, the International Court of
     Justice would be called upon to decide what is the
     correct interpretation.  In dealing with such problems
     the Court could obviously use the history of the
     disputed article."

P.N. Drost, states in The Crime of State, Vol. II: Genocide
(1959) (pp. 101-102):

     "In the discussions many delegations expressed the
     opinion that Article 6 was not meant to solve questions
     of conflicting or concurrent criminal jurisdiction. Its
     purpose was merely to lay down the duty of punishment
     of the State in whose territory the act of genocide was
     committed (U.N. Doc. A/C. 6/SR. 132)... It seems clear
     that the Article does not forbid a Contracting Power to
     exercise jurisdiction in accordance with its national
     rules on the criminal competence of its domestic
     courts.  General international law does not prohibit a
     state to punish aliens for acts committed abroad
     against nationals."

The learned author proceeds to say on p. 131:

     "Also the courts of the country to which the criminals
     belong by reason of nationality, were expressly
     mentioned in the debates as being competent, if the lex
     fori so admits, to exercise penal jurisdiction in cases
     arising abroad.  The forum patriae rei was recognized
     as equally competent under the domestic law, applying
     in such case the principle of active personality.  But
     then, many states apply in certain cases the principle
     of protective jurisdiction which authorizes the
     exercise of jurisdiction over aliens in respect of
     crimes committed abroad when the interests of the state
     are seriously involved.  When the victim of physical
     crime is a national of the state which has arrested the
     culprit, the principle of passive personality may come
     into play and the forum patriae victimae  may be
     competent to try the case.
     By way of exception - and the crime of genocide surely
     must be considered exceptional in this respect - the
     principle of universal repression is applied to crimes
     which have been committed neither by nor against
     nationals, nor against public interests nor on the
     territory of the state whose courts are considered
     competent nevertheless to exercise criminal
     jurisdiction by reason of the international concern of
     the crime or the international interest of its
     repression.  None of these forms of complementary
     competence additional to the territorial jurisdiction
     as basic competence of the domestic courts has been
     excluded under Article 6 of the present Convention.
     There was no need to stipulate these jurisdictional
     powers which all states possess unless particular
     provisions of international law prohibit or limit the

This Convention may be contrasted with four Geneva
Conventions of 12 August 1949:

(Geneva Conventions for (1) the Amelioration of the
Condition of the Wounded and Sick in Armed Forces in the
Field, (2) of the Wounded, Sick and Shipwrecked Members of
Armed Forces at Sea, (3) Relative to the Treatment of
Prisoners at War, (4) Relative to the Protection of Civilian
Persons in Time of War).

These Conventions provide that -

     "Each High Contracting Party shall be under the
     obligation to search for persons alleged to have
     committed, or to have ordered to be committed, such
     grave breaches (of the Convention as defined in the
     following Article), and shall bring such persons,
     regardless of their nationality, before its own courts.
     It may also, if it prefers, and in accordance with the
     provisions of its own legislation, hand such persons
     over for trial to another High Contracting Party
     concerned, provided such High Contracting Party has
     made out a prima facie  case."

(Article 49 of Convention No. 1, article 50 of Convention
No. 2, article 129 of Convention No. 3 and article 146 of
Convention No. 4).  This establishes the principle of
"universality of jurisdiction with respect to war crimes,"
as obligatory jurisdiction of the High Contracting Parties,
an obligation from which none of them may withdraw and which
none of them may waive (as expressly stated in the
above_mentioned Conventions).  That obligation is binding
not only on the belligerents, but also on the neutral
parties to the Conventions.  See British Manual of Military
Law, Part III (The Law of War on Land), 1958, para. 282,
note 2.  M. Greenspan, The Modern Law of Land Warfare 1959,
p. 503.

25. On the other hand, in the Convention for the Prevention
and Punishment of Genocide, Member States of the United
Nations did not reach quite so far-reaching an agreement,
but contented themselves with the determination of
territorial jurisdiction as a compulsory minimum.  It is the
consensus of opinion that the absence from this Convention
of a provision establishing the principle of universality
(and, with that, the failure to constitute an international
criminal tribunal) is a grave defect in the Convention which
is likely to weaken the joint efforts for the prevention of
the commission of this abhorrent crime and the punishment of
its perpetrators, but there is nothing in this defect to
make us deduce any tendency against the principle of the
universality of jurisdiction with respect to the crime in
question.  It is clear that the reference in Article 6 to
territorial jurisdiction, apart from the jurisdiction of the
non-existent international tribunal, is not exhaustive, and
every sovereign state may exercise its existing powers
within the limits of customary international law, and there
is nothing in the adherence of a state to the Convention to
waive powers which are not mentioned in Article 6.  It is in
conformity with this view that the Law for the Prevention
and Punishment of Genocide, 5710-1950, provided in section 5
that "any person who committed an act outside of Israel
which is an offence under this law may be tried and punished
in Israel as though he committed the act inside Israel."

This Law does not apply with retroactive effect and does not
therefore pertain to the offences dealt with in this case.
Our view as to the universality of jurisdiction is not based
on this Law or on this interpretation of Article 6 of the
Convention, but derives from the basic nature of the crime
of genocide as a crime of utmost gravity under international
law.  The significance and relevance of the Convention to
this case lies in the confirmation of the international
nature of the crime, a confirmation which was unanimously
given by the United Nations Assembly and which was adhered
to, among other peoples, by the German people as well (in
1954 the German Federal Republic adhered to the Convention
and enacted a law - BGBL II, 729 - which gave effect to the
Convention in Germany and added to the German criminal law
article 220A against genocide - Voelkermord - a crime
defined according to Article 2 of the Convention).  The
"crime against the Jewish People" under section 1 of the
Israeli Law constitutes a crime of "genocide" within the
meaning of Article 2 of the Convention, and inasmuch as it
is a crime under the law of nations, Israel's legislative
authority and judicial jurisdiction in this matter is based
upon the law of nations.

26. As to the crimes defined in Article 6 of the Charter of
the International Military Tribunal, that Tribunal said in
its judgment on "the principal war criminals" (IMT, Vol. 1,
p. 218) inter alia :

     "The Charter is not an arbitrary exercise of power on
     the part of the victorious nations, but in the view of
     the Tribunal, as will be shown, it is the expression of
     international law existing at the time of its creation,
     and to that extent is itself a contribution to
     international law."

As regards the crimes defined in Control Council Law No. 10,
which was taken as a basis, among other cases, for twelve
important cases tried by the United States Military
Tribunals in Nuremberg, it was stated in the judgment passed
on the "Jurists" ("Justice Case," Trials of War Criminals,
Vol. III, 954 ff (p. 968) that:

     "The IMT Charter, the IMT Judgment, and Control Council
     Law 10 are merely `great new cases in the book of
     international law.'  ...Surely C.C. Law 10, which was
     enacted by the authorized representatives of the four
     greatest powers on earth, is entitled to judicial
     respect when it states: `Each of the following acts is
     recognized as a crime.'  Surely the requisite
     international approval and acquiescence is established
     when 23 states, including all of the great powers, have
     approved the London Agreement and the IMT Charter,
     without dissent from any state.  Surely the IMT Charter
     must be deemed declaratory of the principles of
     international law, in view of its recognition as such
     by the General Assembly of the United Nations."

The judgment then proceeds to quote the resolution which was
unanimously adopted on 11 December 1946 by the United
Nations Assembly that:

     "The General Assembly...affirms the principles of
     international law recognized by the Charter of the
     Nuernberg Tribunal and the judgment of the Tribunal."

Further on, the judgment draws a distinction between the
substantive principles of international law which lay down
that "war crimes" and "crimes against humanity" are crimes
whenever and wherever they were committed, and the actual
enforcement of these universal principles which may come up
against barriers of national sovereignty:

     "We are empowered to determine the guilt or innocence
     of persons accused of acts described as "war crimes"
     and "crimes against humanity" under rules of
     international law.  At this point, in connection with
     cherished doctrines of national sovereignty, it is
     important to distinguish between the rules of common
     international law which are of universal and superior
     authority on the one hand, and the provisions for
     enforcement of those rules which are by no means
     universal on the other...  As to the punishment of
     persons guilty of violating the laws and customs of war
     (war crimes in the narrow sense), it has always been
     recognized that tribunals may be established and
     punishment imposed by the state into whose hands the
     perpetrators fall.  These rules of international law
     were recognized as paramount, and jurisdiction to
     enforce them by the injured belligerent government,
     whether within the territorial boundaries of the state
     or in occupied territory, has been unquestioned.  (Ex
     parte Quirin, 317 U.S. 1; In re: Yamashita, 327 U.S. 1,
     90 L Ed.)  However, enforcement of international law
     has been traditionally subject to practical limitation.
     Within the territorial boundaries of a state having a
     recognized, functioning government presently in the
     exercise of sovereign power throughout its territory, a
     violator 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 withhold sanctions...  Applying these
     principles, it appears that the power to punish
     violators of international law in Germany is not solely
     dependent on the enactment of rules of substantive
     penal law applicable only in Germany... Only by giving
     consideration to the extraordinary and temporary
     situation in Germany can the procedure here be
     harmonized with established principles of national
     sovereignty.  In Germany an international body (the
     Control Council) has assumed and exercised the power to
     establish judicial machinery for the punishment of
     those who have violated the rules of the common
     international law, a power which no international
     authority without consent could assume or exercise
     within a state having a national government presently
     in the exercise of its sovereign powers."

It is clear from these pronouncements that the contention
that the Nuremberg International Military Tribunal and the
tribunals which were established in Germany by virtue of the
Control Council Law No. 10 derive their jurisdiction from
the capitulation and lack of sovereignty of Germany at that
time, is true only with respect to the direct exercise of
criminal territorial jurisdiction in Germany, such as was
exercised by the above-mentioned tribunals, but it has
adopted for itself substantive rules of universal validity
in the law under discussion, the rules of international law
on the subject of "war crimes" and "crimes against
humanity".  The judgment proceeds to say (p. 983):

     "Whether the crime against humanity is the product of
     statute or of common international law, or, as we
     believe, of both, we find no injustice to persons tried
     for such crimes.  They are chargeable with knowledge
     that such acts were wrong and were punishable when

It is hardly necessary to add that the "crime against the
Jewish People," which constitutes the crime of "genocide" is
nothing but the gravest type of "crime against humanity"
(and all the more so because both under Israeli law and
under the Convention a special intention is requisite for
its commission of a "crime against humanity").  Therefore,
all that has been said in the Nuremberg principles on the
"crime against humanity" applies a fortiori to the "crime
against the Jewish People."  If authority is needed for
this, we find it in the same judgment, which says:

     "As the prime illustration of a crime against humanity
     under C.C. Law 10, which by reason of its magnitude and
     its international repercussions has been recognized as
     a violation of common international law, we cite

It is not necessary to recapitulate in Jerusalem, fifteen
years after Nuremberg, the grounds for the legal rule on the
"crime against humanity," for these terms are written in
blood, in the torrents of the blood of the Jewish People
which was shed.  "That law," said Aroneanu in 1948, "was
born in the crematoria, and woe to him who will try to
stifle it"

(Cette loi est nee dans les fours crematoires; et malheur a
celui qui tenterait de l'etouffer).

(Quoted by Boissarie in his introduction to Eugene Aroneanu,
Le Crime contre l'Humanite, 1961.)
The judgment against the "Operations Units" of 10 April 1948
(Einsatzgruppen Case), TWC IV, 411 ff. (p. 498) says on the
same subject:

     "Although the Nuernberg trials represent the first time
     that international tribunals have adjudicated crimes
     against humanity as an international offence, this does
     not, as already indicated, mean that a new offence has
     been added to the list of transgressions of man.
     Nuernberg has only demonstrated how humanity can be
     defended in court, and it is inconceivable that with
     this precedent extant, the law of humanity should ever
     lack for a tribunal.
Where law exists a court will rise.  Thus, the court of
humanity, if it may be so termed, will never adjourn."

27. We have already dealt with the `principle of legality'
that postulates "nullum crimen sine lege, nulla poena sine
lege," and what has been stated above with respect to the
municipal law is also applicable to international law.  In
the judgment against the "Major War Criminals" it is stated
(p. 219):
"In the first place, it is to be observed that the maxim
nullum crimen sine lege is not a limitation of sovereignty,
but it is in general a principle of justice."

That is to say, the penal jurisdiction of a state with
respect to crimes committed by `foreign offenders,' insofar
as it does not conflict on other grounds with the principles
of international law, is not limited by the prohibition of
retroactive effect.

     It is indeed difficult to find a more convincing
     instance of just retroactive legislation than the
     legislation providing for the punishment of war
     criminals and criminals against humanity and against
     the Jewish People, and all the reasons justifying the
     Nuremberg judgments justify eo ipse the retroactive
     legislation of the Israel legislator.  We have already
     referred to the decisive ground of the existence of a
     `criminal intent' (mens rea), and this ground recurs in
     all the Nuremberg judgments.  The Accused in this case
     is charged with the implementation of the plan for the
     "Final Solution of the Jewish Question."  Can anyone in
     his right mind doubt the absolute criminality of such
     acts?  As stated in the judgment in the case of
     "Operations Units" (p. 459):
     "...There is (not) any taint of ex-post-facto-ism in
     the law of murder."

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