Archive/File: people/e/eichmann.adolf/transcripts/Appeal/Appeal-Session-07-02 Last-Modified: 1999/06/15 As to the ethical aspect of the principle, it may be agreed that one's sense of justice generally recoils from punishing a person for an act committed by him which, at the time of its commission, had not yet been prohibited by law, and in respect of which he could not have known, therefore, that he would become criminally liable. But that appraisal cannot be deemed to apply to the odious crimes of the type attributed to the Appellant, and all the more so when we deal with crimes of the scope and dimensions described in the Judgment. In such a case, the above-mentioned maxim loses its moral value and is devoid of any ethical foundation. One's sense of justice must necessarily recoil even more from not punishing one who participated in such outrages, for he could not contend - even as it was impossible for the Appellant successfully to argue about his share in the implementation of the `Final Solution' - that, at the time of his actions, he was not aware that he was violating deeply-rooted universal moral values. What Stone wrote (ibid., pp. 369-370) in repudiating the relevance of the ethical content of the principle of nulla poena to the parallel crimes of which the major war criminals were convicted in Nuremberg is also apposite here: "...the ethical import of the maxim is confronted by the countervailing ethical principles supporting the courts and sentences. Killing, maiming, torturing and humiliating innocent people are acts condemned by the value-judgments of all civilized men, and punishable by every civilized municipal legal system.... All this was known to the accused when they acted, though they hoped, no doubt, to be protected by the law of a victorious Nazi state from punishment. If, then, the rules applied at Nuremberg were not previously rules of positive international law, they were at least rules of positive ethics accepted by civilized men everywhere, to which the accused could properly be held in the forum of ethics." Therefore, in the absence of a positive rule of international law prohibiting criminal legislation with retroactive effect, and in the absence also of a moral justification for preventing the application of such legislation to the offences which are the subject of this Appeal, it follows that the second part of the contention of Counsel for the Appellant - namely, that the State of Israel was not in existence at the time of the commission of the offences and its competence to impose punishment therefor is limited to its own citizens - is equally unfounded. We shall yet see in what follows that the crimes of which the Appellant was convicted must be seen as having constituted, since `time immemorial,' a part of international law and that, viewed from this aspect, the enactment of the Law of 1950 was not in any way in conflict with the maxim nulla poena, nor did it violate the principle inherent in it. Here we have confined ourselves to the rejection of the `international' submission of Counsel for the Appellant, on the strength of the first rule, mentioned in the preceding paragraph, which governs the relationship between local municipal law and the provisions of international law. As already stated, this rule postulates that the above- mentioned principle is not deemed to be embodied in municipal law by virtue of international law, and the District Court therefore was not enjoined to pay heed to it. This ground in itself is an adequate reply to the first contention of Counsel for the Appellant. 9. The same applies to the second contention as well. It will be recalled that according to that contention the enactment of a criminal law applicable to an act committed in a foreign country by a foreign national conflicts with the principle of territorial sovereignty. But here, too, we must hold that there is no such rule in customary international law, and that to this day it has not won universal international recognition. This is established by the judgment of the Permanent Court of International Justice in the Lotus case (P.C.I.J. Series No. 10, 1927). In that case, the judges of the majority recognized the competence of the State of Turkey to enact a criminal statute extending to the negligent conduct of a French citizen while on duty as Officer-of-the-Watch of a French ship, at the time of her collision on the high seas - and therefore outside Turkey's territorial waters - with a ship flying the Turkish flag. The collision caused the sinking of the Turkish ship and also the death of eight of her passengers who were of Turkish nationality. It was held in that case that the principle of territorial sovereignty merely requires that a state exercise its power to punish within its own borders, not outside them; that subject to this restriction every state may exercise a wide discretion as to the application of its laws and the jurisdiction of its courts in respect of acts committed outside the state; and that only insofar as it is possible to point to a specific rule prohibiting the exercise of this discretion - a rule agreed upon by international treaty - is a state prevented from exercising it. That view was based on the following two grounds: (1) It is precisely the conception of state sovereignty which demands the preclusion of any presumption that there is a restriction on its independence; (2) even if it is true that the principle of the territorial character of criminal law is firmly established in various states, it is no less true that in almost all such states criminal jurisdiction has been extended, in ways that vary from state to state, so as to embrace offences committed outside its territory. As to the first ground, it was stated in the Judgment (ibid., p. 18): "Restrictions upon the independence of states cannot ... be presumed." As to the second ground, it was stated (ibid., p. 30): "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." The view based on these two grounds was expressed in the following terms (p. 18, 19): "Now the first and foremost restriction imposed by international law upon a state is that - failing the existence of a permissive rule to the contrary - it may not exercise its power in any form in the territory state. In this sense jurisdiction is certainly territorial; it cannot be exercised by a state outside its territory except by virtue of a permissive rule derived from international custom or from a convention. "It does not, however, follow that international law prohibits a state from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law. 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 its territory, and if, as an exception to their general prohibitionof another, 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." Also: "This discretion left to states by international law explains the great variety of rules which they have been able to adopt without objections or complaints on the part of other states; it is in order to remedy the difficulties resulting from such variety that efforts have been made for many years past...to prepare conventions the effect of which would be precisely to limit the discretion at present left to states in this respect by international law..." And finally: "In these circumstances, all that can be required of a state is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty." It is worthy of note that in the same case the Permanent Court of International Justice declared the criminal jurisdiction of the State of Turkey valid on another, rather more restricted, ground, namely, that the actual damage caused by the negligent act of the French ship occurred in the ship that was flying the Turkish flag. In other words, the resultant damage which constituted an essential element in the offence under Turkish law occurred in a place which was deemed to be Turkish territory. Hence the principle of territorial sovereignty was upheld (ibid., pp. 23, 25). There are some who hold that this ground, which relates to the special facts of the case in question, and which was also supported in principle by the minority judge, Judge Moore (ibid., p. 65), is the `precise' ground that guided the court in the above-mentioned decision (cf. Lauterpacht- Oppenheim ibid., vol. 1, p. 334, and note 1). On the other hand, many authorities in this field of law take the view that it is the wide ground relied upon by the court, as set out above, which correctly and positively reflects international law in this matter (see articles by Schwarzenberger in Current Legal Problems 1950, pp. 265-266; Green, in Modern Law Review, vol. 23 (1960), p. 513; Mac- Gibbon in the British Yearbook of International Law (1954) pp. 184-185; W.B. Cowles in the California Law Review (1945), vol. 33, pp. 178-181). As against these there are international jurists who do not agree with that approach (such as the minority judges in the Lotus case), or at least do not view it with favour de lege ferenda (see W.W. Cook in Logical and Legal Bases of the Conflict of Laws, p. 77). We have no intention of dealing extensively with the above- mentioned divided opinion, or of associating ourselves with any one of them. Our only object in setting forth these views, including the majority view in the Lotus case, is to point to the fact that on the question of the jurisdiction of a state to punish persons who are not its nationals for acts committed beyond its borders, there is as yet no international accord. In the words of Cook (ibid.): "...that there is not at present any general agreement on such rule of international law seems reasonably clear." Thus also Helen Silving in her article (American Journal of International Law, vol. 55, pp. 321-322, note 45): "The question...of the extent to which territorial jurisdiction may deviate from territorial sovereignty has not been uniformly answered in time or in space." Attention may also be drawn to the statement of Mac-Gibbon, in his above article (ibid., p. 184): "The difficulties of a plaintiff state in its search for a prohibitive rule in such circumstances are not merely the result of the unfettered independence of the defendant state but are inherent in the unsettled state of the law which such a situation presupposes." It follows that in the absence of general agreement as to the existence of the rule of international law, upon which Counsel for the Appellant relied, there is no escape from the conclusion that it cannot be deemed to be embodied in Israel municipal law, and therefore on that ground, too, his second contention fails. We are fortified in this opinion by the reply of the Privy Council to the contention that the enforcement of a punitive sanction - the seizure of a boat belonging to a foreign national - by the Mandatory Government for an act committed outside the territorial waters of Palestine, constituted a violation of the principles of international law. In rejecting this contention, the judges based themselves, inter alia, on the following ground: "There is room for much discussion within what limits a state may for the purpose of enforcing its revenue or police or sanitary law claim to exercise jurisdiction on the sea outside its territorial water. It has not been established that such a general agreement exists on this subject as to satisfy the test laid down by Lord Alverstone... Their Lordships, therefore, could not in any event conclude that any principle of international law had been violated" (Naim Molvan v. Attorney General for Palestine (1948 A.C. 351, 369). We should add that even if Counsel for the Appellant were right in his view that international law prohibits a state from trying a foreign national for an act committed outside its borders, this would not avail his client in any way. The reason for this is that, according to the theory of international law, in the absence of an international treaty which vests rights in an individual, that law only recognizes the rights of a state; in other words, assuming that there is such a prohibition in international law, the violation of it is deemed to be a violation of the rights of the state to which the accused belongs, and not a violation of his own rights (vide Green in his article op. cit., ibid. p. 512). Thus in the Molvan case the Privy Council (as an additional reason for its decision) also found that it was not open to the owner of the ship - for reasons which are no concern of ours here - to claim "the protection of any state nor could any state claim that any principle of international law was broken by her seizure" (ibid., p. 370). It should be noted - and we shall yet revert to this fact with reference to another contention of Counsel for the Appellant - that, according to his own words, his application to the Government of Western Germany to claim its right to try the Appellant in Germany, was refused. 10. We have thus far stated our reasons for dismissing the first two contentions of Counsel for the Appellant on the strength of the rules that determine the relationship between Israel municipal law and international law. Our principal object was to make it clear - and this is a negative approach that there was no prohibition whatever by international law of the enactment of the Law of 1950, either because it created ex post facto offences or because such offences are of an extra-territorial character. However, we too, like the District Court, do not content ourselves with this solution, but have undertaken the task of showing that these contentions are unjustifiable also from a positive approach, namely that, when enacting the Law in question, the Knesset only sought to apply the principles of international law and to realize its objectives. The two propositions on which we propose to base ourselves will therefore be as follows: (1) The crimes created by the Law and of which the Appellant was convicted must be deemed today to have always borne the stamp of international crimes, banned by international law and entailing individual criminal liability; (2) It is the particular universal character of these crimes that vests in each state the power to try and punish anyone who assisted in their commission. But before we substantiate these propositions, and in order to lighten our task on this point, we must make a few observations on the four categories of the offences in question, and especially on the inter-relation between them. The definitions in the Law of these offences have been clearly explained by the District Court in paragraph 16 of its Judgment. It was there explained in the light of a detailed comparative analysis that the sources of these definitions are to be found in international documents that define the corresponding crimes (`Genocide' - corresponding to a `crime against the Jewish People' - in the Convention adopted by the United Nations Assembly on 9.12.1948; `Crime against Humanity' and `War Crime' - in the Nuremberg Tribunal Charter of 8.8.45, and also in Law No. 10 of the Control Commission of Germany of 20.12.45; the local offence of `Membership of a Hostile Organization' was defined by reference to the pronouncement on `Hostile Organizations,' embodied in the Judgment of the above-mentioned Tribunal). We do not intend to repeat the explanatory and comparative observations made there, but only to make it clear that the local category of a `Crime against Humanity' - which includes the murder, extermination, starving and deportation of a civilian population, on the one hand, and the persecution on national, racial, religious or political grounds on the other - may be seen as extending also to the three other categories, as these were proved in the proceedings in this case. (1) Thus, the category of `Crime against the Jewish People' is, as held by the District Court in paragraph 26 of its Judgment, nothing but "the gravest type of crime against humanity." It is true that there are certain differences between them as, for example, in the case of the first offence, which requires a specific criminal intent. But these are not differences material to our case. (2) The category of a `War Crime' comprises, in essence, the acts which are prohibited by the laws and customs of war. This category, therefore, only covers acts committed in time of war, while the category of a `Crime against Humanity' also comprises - according to the simple meaning of the definition in the Law - inhuman acts that were committed during the Nazi period that preceded the outbreak of the War (1.9.1939). We attach no practical importance to this distinction, even as we attach no such importance to the finding of the Nuremberg Tribunal that for the purpose of a conviction for the offence of a `Crime against Humanity' as defined in Article 6 (c) of the Charter, it was necessary to prove that it was committed in connection with one of the two other offences therein defined (a `Crime against Peace' or a `War Crime'). The reason for our disregard of these distinctions is that, as emerges from the Judgment of the District Court, the outrages attributed to the Appellant in the Counts on which he was convicted were perpetrated, for the most part, during the War and in connection with the War. It will be noted - and the Court has dwelt on this fact in paragraph 29 of its Judgment - that, according to the Judgment of the Nuremberg Tribunal, Hitler's invasion of Austria also constitutes `crimes within the jurisdiction of the Court,' in the sense of Article 6 (c) of the Charter - in other words, a `Crime against Peace' (see also the article by Egon Schwelb on "Crimes against Humanity" in the British Yearbook of International Law (1946) pp. 189-205). There is yet another distinction between the two types of crimes: While the acts comprised in the `Crime against Humanity' are limited to acts of murder etc. that were perpetrated among the civilian population, this limitation does not necessarily apply also to the acts comprised in the `War Crimes' category (ibid., p. 190). On the other hand, it is clear that many of the acts included in the one category overlap those in the other category, even though it is not imperative that they should all be identical (ibid., pp. 188, 191).
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