Archive/File: people/e/eichmann.adolf/transcripts/Appeal/Appeal-Session-07-04 Last-Modified: 1999/06/15 The international character of crimes of this type and the universal interest that sustains the object of imposing punishment for them were also stressed by Cowles in his article "Universality of Jurisdiction over War Crimes" (33 California Law Review 217) in the following words: "...while the state whose nationals were directly affected has a primary interest, all civilized states have a very real interest in the punishment of war crimes. `The unpunished criminal is itself a menace to the social order.' And an offence against the laws of war, as a violation of the law of nations, is a matter of general interest and concern...war crimes `are offences against the conscience of civilized humanity'." (c) In view of the characteristic traits of international crimes discussed above, and the organic development of the law of nations - a development that advances from case to case under the impact of the humane sentiments common to civilized nations, and under the pressure of the needs that are vital for the survival of mankind and for ensuring the stability of the world order - it definitely cannot be said that when the Charter of the Nuremberg International Military Tribunal was signed and the categories of `War Crimes' and `Crimes against Humanity' were defined in it, this merely amounted to an act of legislation by the victorious countries. The truth is, as the Tribunal itself said, that the Charter, with all the principles embodied in it, including that of individual responsibility, must be seen as: "the expression of international law existing at the time of its creation; and to that extent (the Charter) is itself a contribution to international law (IMT (1947) vol. 1, p. 218). See also the identical view expressed by Court No. III in the American Zone of Germany concerning two of the types of crimes mentioned in Control Commission Law No. 10. "All of the war crimes and many, if not all, of the crimes against humanity as charged in the indictment...were...(not) violative of pre-existing principles of international law. To the extent to which this is true, C.C. law may be deemed to be a codification, rather than original substantive legislation" (U.S. v. Altstoetter, TWC, vol. 3, p. 966). It should be added that many of those who voiced criticism of the Charter and the judgment of the International Military Tribunal at Nuremberg directed it against the incorporation into the Charter of the `Crime against Peace,' but not against incorporating the other two categories (see articles by Finch in the Am. Journal of Int. Law, vol. 41 (1947) pp. 22, 23; and Doman in the Columbia Law Review, vol. 60 (1960) p. 413). Insofar as other writers have criticized the incorporation of `Crimes against Humanity' as being contrary to international law de lege lata, they did so on the ground that the punishment of Nazi criminals for the commission of such crimes within Germany and against German citizens imported an excessive interference with the domestic competence of the state (see article by Schick in the same volume of the Am. Journal of Int. Law, pp. 778-779. The reply to this contention is: First, it is possible to draw a direct line to the inclusion of the above crimes in the Charter from the wording of the aforementioned provision of the Geneva Convention No. IV, 1907, which refers to the `Laws of Humanity' and the dictates of `public conscience.' It stands to reason, as Quincy Wright said (see his article, ibid., p. 60), that these words should apply "to atrocities against nationals as well as against aliens." To quote the picturesque language of Friedmann (in his book Legal Theory, 4th ed., p. 316): "...it is hardly necessary to invoke natural law to condemn the mass slaughter of helpless human beings. Murder is generally taken to be a crime in positive international law." Second, and most important, the interest in preventing and imposing punishment for acts comprised in the category in question - especially when they are perpetrated on a very large scale - must necessarily extend beyond the borders of the state to which the perpetrators belong, and which passively tolerated or encouraged their outrages; for such acts can undermine the foundations of the international community as a whole and impair its very stability. Evidence of the manifestation of this international concern before World War I can be found in a series of incidents which occurred during the nineteenth and the beginning of the twentieth centuries and resulted in forceful diplomatic intervention by various countries on the ground of `humanitarian considerations' in respect of the terrible atrocities initiated or directed by certain other countries against whole sections of their own citizens (see a list of these incidents in the above-mentioned case of Altstoetter, pp. 981-982; also in Greenspan's book The Modern Law of Land Warfare (1959) p. 438). Third, the above criticism affects, at most, the question of criminal jurisdiction, with which we shall yet deal; but it cannot derogate from the character of the above crimes as offences against international law by every standard of civilized humanity. Fourth, if we are to regard customary international law as a developing progressive system, as we are bound to do, the criticism becomes devoid of value. This is because ever since the International Military Tribunal at Nuremberg decided this question, that decision must necessarily be seen as a judicial act which establishes a `precedent' defining the rule of international law. In any event, it would be unseemly for any other court to disregard such a rule and not to follow it. As Schwelb stated (ibid., p. 212): "He would be a bold judge of any national, occupation, or military court, who would decline to be guided by the reasoned judgment of a court composed of four eminent members of the legal profession of the four Great Powers, arrived at after a trial, unique in its history, backed by the authority not only of the four signatories, but also of nineteen `adherent' states, always provided that the facts - and the law to be applied - are the same." Fifth, if there was any doubt as to this appraisal of the Nuremberg Principles as principles that have formed part of customary international law `since time immemorial,' such doubt has been removed by two international documents. We refer to the United Nations Assembly resolution of 11.12.46 which "affirms the principles of international law recognized by the Charter of the Nuremberg Tribunal, and the judgment of the Tribunal," and also to the United Nations Assembly resolution of the same date, No. 96 (1) in which the Assembly "affirms that genocide is a crime under international law." As to the first document, Woetzel stated in his book, ibid., p. 57): "this additional endorsement by the United Nations represents further tangible evidence for assuming that the principles of the Charter as well as those in the judgment in the IMT were valid principles of international law, and that their application was justified." As to both the above-mentioned documents, Sloan said (in his article in the British Yearbook of International Law (1948), p. 24): "while it must be conceded that the General Assembly cannot enact new law, it has already adopted resolutions declaring what it finds to be an existing rule of international law. Perhaps the most important of such resolutions have been the affirmation of the Nuremberg principles and the declaration that genocide is an international crime... If fifty-eight nations unanimously agree on a statement of existing law, it would seem that such a declaration would be all but conclusive evidence of such a rule, and agreement by a large majority would have great value in determining what is existing law." Furthermore, in the wake of Resolution 96 (1) of 11.12.46, the United Nations Assembly unanimously adopted on 9.12.48 the Convention for the Prevention and Punishment of the Crime of Genocide. Article 1 of this document provides that: "The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law..." As the District Court has shown, on the strength of the Advisory Opinion of the Permanent Court of International Justice dated 28.5.51, the import of this provision is that the principles inherent in the Convention - as distinct from the contractual obligations embodied therein - "had already been part of customary international law at the time of the perpetration of the shocking crimes which led to the United Nations resolution and the drafting of the Convention on crimes of genocide which were perpetrated by the Nazis" (paragraph 2 of the Judgment). The deduction to be made from the above analysis is that the crimes established in the Law of 1950, which we have grouped under the inclusive heading `Crimes against Humanity,' must be seen today as acts that have always been forbidden by customary international law - acts which are of a `universal' criminal character and entail individual criminal responsibility. This being so, the enactment of the Law was not, from the point of view of international law, a legislative act that conflicted with the principle nulla poena or the operation of which was retroactive, but rather one by which the Knesset gave effect to international law and its objectives. For this reason, too, the first contention of Counsel for the Appellant rests on shaky foundations. 12. The second proposition. It will be recalled that, according to this proposition, it is the universal character of the crimes in question which vests in every state the power to try those who participated in the perpetration of such crimes and to punish them therefor. This proposition is closely linked with the one adduced in the preceding paragraph from which, indeed, it follows as a logical outcome. The reasoning behind it is as follows: (a) One of the principles whereby states assume, in one degree or another, the power to try and punish a person for an offence he has committed, is the principle of universality. Its meaning is, in essence, that that power is vested in every state regardless of the fact that the offence was committed outside its territory by a person who did not belong to it, provided he is in its custody at the time he is brought to trial. This principle has wide support and is universally acknowledged with respect to the offence of piracy jure gentium. But while there exists general agreement as to its application to this offence, there is a difference of opinion as to the scope of its application (see Harvard Research (1935), p. 503 ff). Thus one school of thought holds that it cannot be applied to any offence other than the one mentioned above, lest this entail excessive interference with the competence of the state in which the offence was committed. This view is reflected in the following extract from the judgment of Judge Moor in the Lotus case (ibid., p. 71): "It is important to bear in mind the foregoing opinions of eminent authorities as to the essential nature of piracy by law of nations, especially for the reason that nations have shown the strongest repugnance to extending the scope of the offence, because it carried with it...the principle of universal jurisdiction ..." and supra (p. 70) "Piracy by law of nations, in its jurisdictional aspects, is sui generis." A second school of thought - represented by the authors of the draft Convention on this subject in the Harvard Research (ibid., p. 559) - though agreeing to the extension of the principle to all manner of extra-territorial offences committed by foreign nationals, considers it to be no more than an auxiliary principle, to be applied in circumstances in which no resort can be had to the principle of territorial sovereignty or to the nationality principle, both of which are universally agreed to. The authors of this draft, therefore, impose various restrictions on the application of the principle of universal jurisdiction, which are designed to obviate opposition by those states that find themselves competent to punish the offender according to either of the other two principles mentioned. One of these reservations - to which we shall yet revert - is that the state contemplating the exercise of the power in question must first offer the extradition of the offender to the state within whose territory the offence was committed (forum delicti commissi). The justification seen by that school of thought - as distinct from the first-mentioned school - for the adoption of this principle, albeit as a purely auxiliary principle, is the consideration that it is calculated to prove useful in circumstances in which the offender is likely to evade punishment, if it is not applied. A third school of thought holds that the rule of universal jurisdiction, which is valid in cases of piracy, logically applies also to all such criminal acts of commission or omission which constitute offences under the law of nations (delicta juris gentium) without any reservation whatever or, at most, subject to a reservation of the kind mentioned above. (See quotation in paragraph 14 of the judgment of the District Court from Wheaton's Elements of International Law, 5th English edition, p. 184; also proposals in this spirit referred to in Harvard Research, p. 555 and pp. 562, 563.) This view has been opposed in the past because of the difficulty in securing general agreement as to the offences to be included in the above-mentioned class (ibid., pp. 555, 558). A fourth view is that expressed de lege ferenda by Lauterpacht in the Cambridge Law Journal of 1947 (vol. 9, p. 348, note 61): "It would be in accordance with an enlightened principle of justice - a principle which has not yet become part of the law of nations - if in the absence of effective extradition, the courts of a state were to assume jurisdiction over common crimes, by whomsoever and wherever committed, of a heinous character..." (b) This brief survey of views set out above shows that, notwithstanding the differences between them, there is full justification for applying here the principle of universal jurisdiction, since the international character of the `crimes against humanity' (in the wide meaning of the term) is, in this case, not in doubt, and the unprecedented extent of their injurious and murderous effects is not open to dispute at the present day. In other words, the basic reason for which international law recognizes the right of each state to exercise such jurisdiction in piracy offences - notwithstanding the fact that its own jurisdiction does not extend to the scene of the commission of the offence (the high seas) and the offender is a national of another state or is stateless - applies with all the greater force to the above-mentioned crimes. That reason is, it will be recalled, that the interest to prevent bodily and material harm to those who sail the seas, and to persons engaged in free trade between nations, is a vital interest, common to all civilized states and of universal scope, as was emphasized by the authors of the Harvard Research (p. 552): "...The competence to prosecute and punish for piracy was commonly explained by saying that the pirate...was the enemy of all alike... The competence is better justified at the present time upon the ground that the punishable acts are committed upon the seas where all have an interest in the safety of commerce and where no state has territorial jurisdiction. Notwithstanding the more effective policing of the seas in modern times, the common interest and mutual convenience which gave rise to the principle have conserved its vitality as a means of preventing the recurrence of maritime depredations of a piratical character." That is to say that it was not the recognition of the universal jurisdiction to try and punish the person who committed `piracy' that justified the viewing of such an act as an international crime sui generis, but it was the agreed vital interest of the international community that justified the exercise of the jurisdiction in question: "As a result of this attitude of mankind towards these two great public crimes...piracy and the slave trade, wherever practised, are subject to punishment by any political authority apprehending the persons engaged therein irrespective of their nationality or allegiance" (Robert Lansing, op. cit., p. 25). It follows that the state which prosecutes and punishes a person for that offence acts solely as the organ and agent of the international community, and metes out punishment to the offender for his breach of the prohibition imposed by the law of nations: "...with regard to the pirate, the state punishing him acts as as an organ of the international legal community. For it is international law which the state applies against the pirate" (Kelsen op. cit., p. 345). "...the prosecution must perforce be conducted in the courts of the state which has seized the pirate; but the violation of the law invoked is one which concerns the entire community of nations, and the prosecuting state is acting, in effect, as agent of all civilized states in vindicating the law common to them all" (Glueck, op. cit., p. 100). The above explanation of the substantive basis underlying the exercise of universal jurisdiction in respect of the crime of piracy also justifies its exercise in regard to the crimes with which we are dealing in this case.
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