Archive/File: people/e/eichmann.adolf/transcripts/Judgment/Judgment-005 Last-Modified: 1999/05/27 The Netherlands Law of 10 July 1947 which amends the preceding law (of 22 October 1943) may serve as an example of municipal retroactive legislation, in that it added Article 27(A) which provides: "He who during the time of the present war and while in the forces of service of the enemy state is guilty of a war crime or any crime against humanity as defined in Art. 6 under (b) or (c) of the Charter belonging to the London Agreement of 8th August, 1945...shall, if such crime contains at the same time the elements of an act punishable according to Netherlands law, receive the punishment laid down for such act." On the strength of such retroactive adoption of the definition of crimes according to the Nuremberg Charter, the Higher S.S. and Police Leader in Holland, Rauter, was sentenced to death by a Special Tribunal, and his appeal was dismissed by the Special Court of Cassation (see LRTWC XIV pp. 89 ff). The double contention nullum crimen, nulla poena sine lege was dismissed by the Court of Cassation on the grounds that the Netherlands legislator had abrogated this rule (which is expressly laid down in sec. 1 of the Netherlands Criminal Law) with respect to crimes of this kind, and that indeed that rule was not adequate for these crimes. On p. 120 (ibid.) it is stated: "From what appears above, it follows that neither Art. 27(A) of the Extraordinary Penal Law Decree nor Art. 6 of the Charter of London to which the said Netherlands provision of law refers, had, as the result of an altered conception with regard to the unlawfulness thereof, declared after the event to be a crime an act thus far permitted;...these provisions have only further defined the jurisdiction as well as the limits of penal liability and the imposition of punishment in respect of acts which already before (their commission) were not permitted by international law and were regarded as crimes..." "Insofar as the appellant considers punishment unlawful because his actions, although illegal and criminal, lacked a legal sanction provided against them precisely outlined and previously prescribed, his objection also failed. "The principle that no act is punishable except in virtue of a legal penal provision which had preceded it, has as its object the creation of a guarantee of legal security and individual liberty, which legal interests would be endangered if acts about which doubts could exist as to their deserving punishment were to be considered punishable after the event. "This principle, however, bears no absolute character, in the sense that its operation may be affected by that of other principles with the recognition of which equally important interests of justice are concerned. "These latter interests do not tolerate that extremely serious violations of the generally accepted principles of international law, the criminal...character of which was already established beyond doubt at the time they were committed, should not be considered punishable on the sole ground that a previous threat of punishment was lacking. It is for this reason that neither the London Charter of 1945 nor the judgment of the International Military Tribunal (at Nuremberg) in the case of the Major German War Criminals have accepted this plea which is contrary to the international concept of justice, and which has since been also rejected by the Netherlands legislator, as appears from Art. 27(A) of the Extraordinary Penal Law Decree." The courts in Germany, too, have rejected the contention that the crimes of the Nazis were not prohibited at the time, and that their perpetrators did not have the requisite criminal intent. It is stated in the judgment of the Supreme Federal Tribunal 1 St/R 563/51 that the expulsions of the Jews, the object of which was the death of the deportees, were a continuous crime committed by the principal planners and executants, something of which all other executants should have been conscious, for it cannot be admitted that they were not aware of the basic principles on which human society is based, and which are the common legacy of all civilized nations. See also BGH 1 St.R 404/60 (NJW 1961, 276), a judgment of 6 December 1960 which deals with the murder of mentally deranged persons on Hitler's orders. The judgment says inter alia (pp. 277, 278) that in 1940, at the latest, it was clear to any person who was not too naive, certainly to anyone who was part of the leadership machinery, that the Nazi regime did not refrain from the commission of crimes, and anyone taking part in these crimes could not contend that he had mistakenly assumed that a forbidden act was permissible, seeing that these crimes violated basic principles of the rule of law. The Hebrew rule, "No one may be punished unless he has been forewarned," which corresponds to the principle of legality according to the Roman rule, hints at the importance of warning that a certain action is prohibited. During the World War, Allied governments gave the Nazi criminals recurrent warnings that they would be punished, but these were of no avail. Henry Stimson was right when he said, as cited in the judgment on "The Jurists" (p. 976): "It was the Nazi confidence that we would never chase and catch them, and not a misunderstanding of our opinion of them, that led them to commit their crimes. Our offence was thus that of the man who passed by on the other side. That we have finally recognized our negligence and named the criminals for what they are is a piece of righteousness too long delayed by fear." 28. Learned Counsel seeks to negate the jurisdiction of the state by contending that the crimes attributed to the Accused in Counts 1-12 had been committed, according to the indictment itself, in the course of duty, and constitute `Acts of State,' acts for which according to his contention, only the German state is responsible. In this contention Counsel bases himself mainly on the theory of Kelsen, as explained in his works: "Collective and Individual Responsibility in International Law with Particular Regard to the Punishment of War Criminals" (1943), 33 California Law Review 530 ff; Peace through Law (1944) p. 71 ff; Principles of International Law (1952), p. 235 ff. Learned Counsel basis himself on the rule par in parem non habet imperium - that is to say, a sovereign state does not exercise dominion over, and does not sit in judgment against, another sovereign state - and deduces therefrom that a state may not try a person for a criminal act that constitutes an `act of state' of another state, without the consent of such other state to that person's trial. In the view of Kelsen, only the state in whose behalf the `organ' (ruler or official) had acted is responsible for the violation, through such act, of international law, while the perpetrator himself is not responsible (with the two exceptions of espionage and war treason). The theory of `act of state' was repudiated by the International Military Tribunal at Nuremberg, when it said (pp. 222-223): "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 U.S. 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 states, or responsible officials in government departments, shall not be considered as freeing them from responsibility, or mitigating punishment.' "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 law." It is clear from the context that the last sentence was not meant, as Counsel contends, to limit the rule of the "violation of the laws of war" alone. The court expressly said, as quoted above, that "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." Indeed, the theory of Kelsen and his disciples (See Defence Counsel's written submissions, Vol. I, pp. 532-539), and also the `limited' theories referred to by Learned Counsel (ibid.) are inadmissible. The precedents adduced as authorities for this theory, e.g., Schooner Exchange v. McFaddon (1812) 7 Cranch 116, the memorandum of the American Secretary of State on the subject of the "Caroline," i.e., People v. McLeod (See Moore, Digest of International Law II, paragraph 175), and other precedents, do not fit the realities in Nazi Germany. A state that plans and implements a "Final Solution" cannot be treated as par in parem, but only as a gang of criminals. In the judgment on "The Jurists," it is said (p. 984): "The very essence of the prosecution case is that the laws, the Hitlerian decrees and the Draconic, corrupt and perverted Nazi judicial system themselves constituted the substance of war crimes and crimes against humanity, and that participating in the enactment and enforcement of them amounts to complicity in crime. We have pointed out that governmental participation is a material element of the crime against humanity. Only when official organs of sovereignty participated in atrocities and persecutions did those crimes assume international proportions. It can scarcely be said that governmental participation, the proof of which is necessary for conviction, can also be a defence in the charge." Drost says in his The Crime of State (Humanicide), pp. 310- 311 (under the caption - "State Crime as Act of State"): "Any state officer irrespective of his rank or function would necessarily go unpunished if his acts of state were considered internationally as the sovereign acts of a legal person. The person who really acted on behalf of the state would be twice removed from penal justice, since the entity whom he represented, by its very nature would be doubly immune from punishment, once physically and once legally. The natural person escapes scot-free between the legal loopholes of state personality and state sovereignty. But then, this reasoning in respect of these too much laboured juristic conceptions should not be carried into the province of penal law." "Immunity for acts of state constitutes the negation of international criminal law which indeed derives the necessity of its existence exactly from the very fact that acts of state often have a criminal character for which the morally responsible officer of state should be made penally liable." The contention of Learned Counsel that it is not the Accused but the state on whose behalf he had acted that is responsible for his criminal acts, is only true in its second part. It is true that under international law Germany bears not only moral, but also legal, responsibility for all the crimes that were committed as its own `Acts of State,' including the crimes attributed to the Accused. But that responsibility does not detract one iota from the personal responsibility of the Accused for his acts. See Oppenheim-Lauterpacht, paragraph 156 b: "The responsibility of states is not limited to restitution or to damages of a penal character. The state, and those acting on its behalf, bear criminal responsibility for such violations of international law as by reason of their gravity, their ruthlessness, and their contempt for human life place them within the category of criminal acts as generally understood in the law of civilized countries. Thus if the government of a state were to order the wholesale massacre of aliens resident within its territory, the responsibility of the state and of the individuals responsible for the ordering and the execution of the outrage would be of a criminal character." "...It is impossible to admit that individuals, by grouping themselves into states and thus increasing immeasurably their potentialities for evil, can confer upon themselves a degree of immunity from criminal liability and its consequences which they do not enjoy when acting in isolation. Moreover, the extreme drastic consequences of criminal responsibility of states are capable of modification in the sense that such responsibility is additional to, and not exclusive of, the international criminal liability of the individuals guilty of crimes committed in violation of International Law." See also ibid., paragraph 153a (p. 341): "...No innovation was implied in the Charter annexed to the Agreement of August 8, 1945, for the punishment of the Major War Criminals of the European Axis inasmuch as it decreed individual responsibility for war crimes proper and for what it described as crimes against humanity. For the laws of humanity which are not dependent upon positive enactment, are binding, by their very nature, upon human beings as such." The repudiation of the contention as to an `Act of State' is one of the principles of international law that were acknowledged by the Charter and Judgment of the Nuremberg Tribunal, and were unanimously affirmed by the United Nations Assembly in its Resolution of 11 December 1946. In the formulation (on the directions of the Assembly in its Resolution No. II 177) by the International Law Commission of the United Nations, of these acknowledged principles, this principle appears as Principle No. 3: "The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible government official does not relieve him from responsibility under international law." In Resolution No. 96(i) of 11 December 1946, too, in which the UN Assembly unanimously affirmed that `genocide' is a `crime under international law,' it is stated that "principal offenders and associates, whether private individuals, public officials or statesmen" must be punished for the commission of this crime, while the Convention for the Prevention and Punishment of Genocide expressly provides in Art 4: "Persons committing genocide or any of the other acts enumerated in Art 3 shall be punished whether they are constitutionally responsible rulers or private individuals." This article affirms a principle acknowledged by all civilized nations, in the words of the International Court of Justice in its Advisory Opinion referred to, and inasmuch as Germany, too, has adhered to this Convention, it is possible that even according to Kelsen, who requires an international Convention or the consent of the state concerned, there is no longer any ground for pleading an `Act of State.' But the rejection of this plea does not depend on the affirmation of this principle by Germany, for the plea had already been invalidated by the law of nations. For these reasons we dismiss the contention as to `Act of State.' 29. In his written submissions (Volume I, pp. 550-552), learned Counsel has based himself on the strict interpretation of the term `crime against humanity' given by the Nuremberg International Tribunal according to Art 6(1) of the Charter, which excludes from its jurisdiction many crimes of this kind which had been committed by Germany before the outbreak of the War. In its judgment on the Major War Criminals, the Tribunal said (p. 254): "To constitute Crimes against Humanity, the acts relied on before the outbreak of war must have been in execution of, or in connection with, any crime within the jurisdiction of the Tribunal. The Tribunal is of the opinion that, revolting and horrible as many of these crimes were, it has not been satisfactorily proved that they were done in execution of, or in connection with, any such crime. The Tribunal therefore cannot make a general declaration that the acts before 1939 were Crimes against Humanity within the meaning of the Charter." It is our view that no conclusion may be drawn from this interpretation of the Charter, for it is based on an express proviso to Art. 6(c) of the Charter, which does not appear in the definition of "crime against humanity" in Art. II 1(c) of Control Council Law No. 10. The last words in the passage cited above: "crimes against humanity within the meaning of the Charter" indicate that, but for the special proviso to Art. 6(c), the Tribunal would have deemed these crimes "crimes against humanity." It is true that, notwithstanding the conspicuous omission of this proviso from Control Council Law No. 10, two of the American Military Tribunals decided in subsequent cases (the `Flick Case' and the `Ministries Case') to apply the above- mentioned proviso to the last-mentioned law; but two other Tribunals have expressed a contrary opinion (in the `Operations Units' and the `Jurists' cases), and we think that their opinion, which conforms to the letter of the law, is correct. See also the reasons - which we find convincing - advanced by the Chief American Prosecutor, General Taylor, in his argument in the `Jurists' case. It must be noted that judgments under Control Council Law No. 10 applied the definition of "crime against humanity" to all crimes of this order which were committed during the period of the Nazi regime, i.e., from 30 January 1933. See H. Meyerowitz, La Repression par les Tribunaux Allemands des Crimes contre l'Humanite, 1960, p. 233. No great practical importance attaches to this question for the purpose of this case, seeing that most of the crimes attributed to the Accused were committed during the War or in connection with it (according to the Nuremberg judgment, Hitler's invasions of Austria and Czechoslovakia constitute "crimes within the jurisdiction of the Tribunal," within the meaning of the proviso to Art. 6(c) [of the Charter]; see ibid., Vol. 22, pp. 643, 662). At all events, it seems to us, in the light of the general definition in Control Council Law No. 10, of "a crime against humanity," that the proviso to Art. 6(c) of the Charter does not limit the substantive nature of a "crime against humanity" under international law, but has only limited the jurisdiction of the Nuremberg Tribunal to try crimes of this kind which are bound up with "war crimes" or "crimes against peace." See also Oppenheim-Lauterpacht (7th ed.) II, para. 257, p. 579, note (5) and authorities there cited.
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