Archive/File: people/e/eichmann.adolf/transcripts/Judgment/Judgment-006 Last-Modified: 1999/05/27 30. We have discussed at length the international character of the crimes in question because this offers the broadest possible, though not the only, basis for Israel's jurisdiction according to the law of nations. No less important from the point of view of international law is the special connection the State of Israel has with such crimes, seeing that the People of Israel (Am Yisrael) - the Jewish People (Ha'am Ha'Yehudi - to use the term in the Israel legislation) constituted the target and the victim of most of the crimes in question. The State of Israel's "right to punish" the Accused derives, in our view, from two cumulative sources: a universal source (pertaining to the whole of mankind) which vests the right to prosecute and punish crimes of this order in every state within the family of nations; and a specific or national source which gives the victim nation the right to try any who assault its existence. This second foundation of penal jurisdiction conforms, according to the acknowledged terminology, to the protective principle (the competence reelle). In England, which until a short time ago was considered a country that does not rely on such jurisdiction (see still in "Harvard Research in International Law, Jurisdiction with Respect to Crime," 1935, AJIL, Vol. 35 (Suppl.) 544) where it was stated in Joyce v. D.P.P. (1946) A.C. 347 (p. 372): "The second point of appeal...was that in any case no English court has jurisdiction to try an alien for a crime committed abroad... There is, I think, a short answer to this point. The statute in question deals with the crime of treason committed within or...without the realm... No principle of comity demands that a state should ignore the crime of treason committed against it outside its territory. On the contrary, a proper regard for its own security requires that all those who commit that crime, whether they commit it within or without the realm, should be amenable to its laws." Oppenheim-Lauterpacht I para. 147, p. 333, says that the penal jurisdiction of the state includes "crimes injuring its subjects or serious crimes against its own safety." Most European countries go much farther than this (See "Harvard Research," ibid., p. 546 et seq.). 31. Dahm says in his Zur Problematik des Voelkerstrafrechts, 1956, p. 28, that the protective principle is not confined to foreign offences that threaten the "vital interests" of the state, and goes on to explain (pp. 38-39) in his reference to "immanent limitations" of the jurisdiction of the state that a departure therefrom would constitute an "abuse" of its sovereignty. He says: "Penal jurisdiction is not a matter for everyone to exercise. There must be a "linking point," a legal connection that links the punisher with the punished. The State may, insofar as international law does not contain rules contradicting this, punish only persons and acts which concern it more than they concern other States" (author's italics). Learned Counsel summed up his pleadings against the jurisdiction of the Israel legislator by stressing (Session 5, Vol. 1, pp.56-59) that under international law there must be a connection between the state and the person who committed the crime, and that, in the absence of an "acknowledged linking point," it was ultra vires for the state to inflict punishment for foreign offences. The doctrine of the "linking point" is not new. Dahm (ibid.) bases himself on Mendelssohn-Bartholdy, Vergleichende Darstellung des deutschen und auslaendischen Strafrechts, Allg. Teil VI (1908) 111 ff. And Mendelssohn- Bartholdy himself (ibid.) quotes Rolin-Jaquemins as having said in 1874: "Tout le monde est d'accord sur ce point qu'il faut un lien de droit entre celui qui punit et celui qui subit le chatiment." 32. We have already stated above the view of Grotius on "the right to punish," a view which is also based on a "linking point" between the criminal and his victim: Grotius holds that the very commission of the crime creates a legal connection between the offender and the victim which vests in the victim the right to punish the offender or demand his punishment. According to natural justice, the victim may himself punish the offender, but the organization of society has delegated that natural right to the sovereign state. One of the main objects of the punishment is - continues the author of The Law of Peace and War (Book 2, chapter 20) - to ensure that "the victim shall not in future suffer a similar infliction at the hands of the same person or at the hands of others" (ne post hac tale quid patiatur aut ab eodem aut ab aliis). Grotius also quotes an ancient authority who said that the punishment is necessary to "defend the honour or the authority of him who was hurt by the offence, so that the failure to punish may not cause his degradation" (dignitas auctoritasve ejus in quem est peccatum tuenda est, ne praetermissa animadversio contemtum ejus pariat et honorem levet), and he adds that all that has been said of the jurisdiction applies to the infringement of all his rights. And again: "Ne ab aliis laedatur qui laesus est punitione non quavis, sed aperta atque conspicua quae ad exemplum pertinet obtinetur" (In order that the victim may not be hurt by others, there must be no mere punishment but a public and striking punishment that will serve as an example.) Not all jurists use the term "linking point" in an equal connotation. Thus, Mendelssohn-Bartholdy holds the opinion that the sovereignty of a country in determining its penal jurisdiction is unlimited, and he resorts to the "linking point" doctrine solely as a scientific device for the classification of the offences specified in positive law: "The number of linking points is as large as the number of offences" (ibid., p. 112). On the other hand, Hyde (ibid., p. 804) demands, as already mentioned "a close and definite connection between that act and the prosecutor, and one which is commonly acknowledged to excuse the exercise of jurisdiction. There are few situations where the requisite connection is deemed to exist... The connection...is... apparent when the act complained of is to be fairly regarded as directed against the safety of the prosecuting State." Between these two extreme views is the view of Dahm (ibid.). Notwithstanding the difference of opinion as to the closeness of the requisite link, the very term "connection" or "linking point" is useful for the elucidation of the problem before us. The question is: What is the special connection between the State of Israel and the offences attributed to the Accused, and whether this connection is sufficiently close to form a foundation for Israel's right of punishment against the Accused. This is no merely technical question but a wide and universal one; for the principles of international law are wide and universal principles and not articles in an express code. 33. When the question is presented in its wider form, as stated above, it seems to us that there can be no doubt what the answer will be. The "linking point" between Israel and the Accused (and for that matter between Israel and any person accused of a crime against the Jewish People under this law) is striking in the "crime against the Jewish People," a crime that postulates an intention to exterminate the Jewish People in whole or in part. Indeed, even without such specific definition - and it must be noted that the draft law only defined "crimes against humanity" and "war crimes" (Bills of the Year 5710 No. 36, p. 119) - there was a subsisting "linking point," since most of the Nazi crimes of this kind were perpetrated against the Jewish People; but viewed in the light of the definition of "crime against the Jewish People," as defined in the Law, constitutes in effect an attempt to exterminate the Jewish People, or a partial extermination of the Jewish People. If there is an effective link (and not necessarily identity) between the State of Israel and the Jewish People, then a crime intended to exterminate the Jewish People has an obvious connection with the State of Israel. 34. The connection between the State of Israel and the Jewish People needs no explanation. The State of Israel was established and recognized as the State of the Jews. The proclamation of 5 Iyar 5708 (14 May 1948) (Official Gazette No. 1) opens with the words: "It was in the Land of Israel that the Jewish People was born," dwells on the history of the Jewish People from ancient times until the Second World War, refers to the Resolution of the United Nations Assembly of 29 November 1947 which calls for the establishment of a Jewish State in the Land of Israel, determines the "natural right of the Jewish People to be, like every other people, self-governing, in its sovereign state." It would appear that there is no need for any further proof of the obvious connection between the Jewish People and the State of Israel: This is the sovereign state of the Jewish People. Moreover, the Declaration of the Establishment of the State of Israel makes mention of the specific tragic link between the Nazi crimes which form the subject of the Law in question, and the establishment of the state: "The catastrophe which recently befell the Jewish People - the massacre of millions of Jews in Europe - was another clear demonstration of the urgency of solving the problem of its homelessmess by re- establishing in the Land of Israel the Jewish State, which would open the gates of the homeland wide to every Jew, and confer upon the Jewish People the status of a fully privileged member of the comity of nations. "Survivors of the Nazi Holocaust in Europe, as well as Jews from other parts of the world, continued to migrate to the Land of Israel, undaunted by difficulties, restrictions and dangers, and never ceased to claim their right to a life of dignity, freedom and honest toil in their national homeland. "In the Second World War, the Jewish community of this country contributed its full share to the struggle of the freedom- and peace-loving nations against the forces of Nazi wickedness and, by the blood of its soldiers and its war effort, gained the right to be reckoned among the peoples who founded the United Nations." These words are no mere rhetoric, but historical facts which international law does not ignore. In the light of the recognition by the United Nations of the right of the Jewish People to establish their State, and in the light of the recognition of the established Jewish State by the family of nations, the connection between the Jewish People and the State of Israel constitutes an integral part of the law of nations. The massacre of millions of Jews by the Nazi criminals that very nearly led to the extinction of the Jewish People in Europe, was one of the tremendous causes for the establishment of the State of the survivors. The State cannot be cut off from its roots which also lie deep within the Holocaust of European Jewry. Half of the citizens of the State have immigrated from Europe in recent years, some before and some after the Nazi massacre. There is hardly one of them who has not lost parents, brothers and sisters, and many lost their spouses and their offspring in the Nazi hell. Under these circumstances, which are without precedent in the annals of any other nation, can there be any one who would contend that there is no sufficient "linking point" between the crime of the extermination of the Jews of Europe and the State of Israel? 35. Learned Counsel contends that in the absence of a "recognized linking point" only the principle of territoriality is valid with respect to the crimes attributed to the Accused. On this principle, at least eighteen countries may try the Accused for the offences specified in the indictment, and had one or several of such countries prosecuted the Accused for the extermination of the Jews who resided there, the Accused would not have had any argument against the jurisdiction of the Court. In other words, eighteen nations do have the right to punish the Accused for the murder of Jews who resided in their territories, but the nation of those who were murdered has no right to inflict such punishment because those persons were not exterminated on its territory. But the people is one and the crime is one: The crime attributed to the Accused is "the killing of millions of Jews with intent to exterminate the Jewish People." The Jewish population now residing in the State of Israel, or the Jewish "Yishuv" which lived in Palestine before the establishment of the State, too, is part of the Jewish People whom the Accused sought, according to the indictment, to exterminate. Although that part of the people was rescued, it was in danger of extermination, as the history of the World War shows. At all events, the extermination of European Jewry which was carried out with intent to annihilate the Jewish People, was directed not only against those Jews who were exterminated, but against the entire Jewish People, including the Jewish "Yishuv" in Palestine. To argue that there is no connection, is like cutting away the roots and branches of a tree and saying to its trunk: I have not hurt you. Indeed, this crime very deeply concerns the vital interests of the State of Israel, and pursuant to the "protective principle," this State has the right to punish the criminals. In terms of Dahm's thesis, the acts in question referred to in this Law of the State of Israel "concern Israel more than they concern other states," and therefore, according to this author's thesis, too, there exists a "linking point." The punishment of Nazi criminals does not derive from the arbitrariness of a country "abusing" its sovereignty, but is a legitimate and reasonable exercise of a right in penal jurisdiction. The very existence of a people who can be murdered with impunity is in danger, to say nothing of the danger to its "honour and authority" (Grotius). This has been the curse of the diaspora and the want of sovereignty of the Jewish People, upon whom any criminal could commit his outrages without fear of being punished by the people outraged. Hitler and his associates exploited the defenceless position of the Jewish People in its dispersion, in order to perpetrate the total murder of that People in cold blood. It was also in order to provide some measure of redress for the terrible injustice of the Holocaust that the sovereign state of the Jews, which enables the survivors of the Holocaust to defend its existence by the means at the disposal of a state, was established on the recommendation of the United Nations. One of the means therefor is the punishment of the murderers who did Hitler's contemptible work. It is for this reason that the Law in question has been enacted. 36. Counsel contended that the protective principle cannot apply to this case because that principle is designed to protect only an existing state, its security and its interests, while the State of Israel had not existed at the time of the commission of the crime. He further submitted that the same contention applies to the principle of "passive personality" which stemmed from the protective principle, and of which some states have made use for the protection of their citizens abroad through their penal legislation. Counsel pointed out that, in view of the absence of a sovereign Jewish State at the time of the Holocaust, the victims of the Nazis were not, at the time they were murdered, citizens of the State of Israel. In our view, learned Counsel errs when he examines the protective principle in this retroactive Law according to the time of the commission of the crimes, as is the case in an ordinary law. This Law was enacted in 1950 with a view to its application to a specified period which had terminated five years before its enactment. The protected interest of the State recognized by the protective principle is, in this case, the interest existing at the time of the enactment of the Law, and we have already dwelt on the importance of the moral and protective task which this Law is designed to achieve in the State of Israel. 37. The retroactive application of the Law to a period precedent to the establishment of the State of Israel is not, in respect to the Accused (and, for that matter, to any accused under this Law), a problem different from that of the usual retrospectivity on which we have already dwelt above. Goodhart states in his "The Legality of the Nuremberg Trial," Juridical Review, April 1946, (p. 8), inter alia: "Many of the national courts now functioning in the liberated countries have been established recently, but no one has argued that they are not competent to try the cases that arose before their establishment... No defendant can complain that he is being tried by a court which did not exist when he committed the act." What is said here of a court which did not exist at the time of the commission of the crime, is also valid with respect to a state which was not sovereign at the time of the commission of the crime. The whole political landscape of the continent of occupied Europe has changed after the War; boundaries have changed, as has also changed the very identity of states that had existed before. But all this does not concern the Accused. 38. All this is said in relation to the Accused; but may a new state try crimes at all that were committed before it was established? The reply to this question was given in Katz-Cohen v. Attorney General, C.A. 3/48 (Pesakim II, p. 225) where it was decided that the Israeli courts have full jurisdiction to try offences committed before the establishment of the State, and that "in spite of the changes in sovereignty, there subsisted a continuity of law." "I cannot see," said President Smoira, "why that community in the country against whom the crime was committed should not demand the punishment of the offender solely because that community is now governed by the Government of Israel, instead of by the Mandatory Power." This was said with respect to a crime committed in the country, but there is no reason to assume that the law would be different with respect to foreign offences. Had the Mandatory legislator enacted at the time an extraterritorial law for the punishment of war criminals (as, to give one example, the Australian legislator did in the War Criminals Act, 1945, see Section 12), it is clear that the Israeli court would have been competent to try under such law offences which were committed abroad prior to the establishment of the State. The principle of continuity also applies to the power to legislate: The Israeli legislator is empowered to amend or supplement the Mandatory legislation retroactively by enacting laws applicable to criminal acts which were committed prior to the establishment of the State. Indeed, this retroactive law is designed to supplement a gap in the laws of Mandatory Palestine, and the interests protected by this law existed also during the period of the Jewish National Home. The Balfour Declaration and the Palestine Mandate given by the League of Nations to Great Britain constituted an international recognition of the Jewish People (see N. Feinberg, "The Recognition of the Jewish People in International Law," Jewish Yearbook of International Law 1948, p. 15, and authorities there cited), the historical link of the Jewish People with the Land of Israel and their right to reestablish their National Home in that country. The Jewish People actually made use of that right, and the National Home has grown and developed until it reached a sovereign status. During the period preceding the establishment of the sovereign State, the Jewish National Home may be seen as reflecting the rule nasciturus pro jam nato habetur (see Feinberg, ibid.). The Jewish "Yishuv" in Palestine constituted during that period a "state-on-the-way," which in due time reached a sovereign status. The lack of sovereignty made it impossible for the Jewish "Yishuv" in the country to enact a criminal law against the Nazi crimes at the time of their commission, but these crimes were also directed against that "Yishuv" which constituted an integral part of the Jewish People, and the enactment with retroactive application of the Law in question by the State of Israel answered the need which had already existed previously. The historical facts explain the background of the legislation in question; but it seems to us that, from a legal point of view, the power of the new State to enact retroactive legislation does not depend on that background alone, and is not conditioned by the continuity of law between Palestine and the State of Israel. Let us take an extreme example and assume that the Gypsy survivors - an ethnic group or a nation who were also, like the Jewish People, victims of the "crime of genocide" - would have gathered after the War and established a sovereign state in any part of the world. It seems to us that no principle of international law could have denied the new state the natural power to put on trial all those killers of their people who fell into their hands. The right of the injured group to punish offenders derives directly, as Grotius explained (see supra) from the crime committed against them by the offender, and it was only want of sovereignty that denied them the power to try and punish the offender. If the injured group or people thereafter reaches political sovereignty in any territory, it may make use of such sovereignty for the enforcement of its natural right to punish the offender who injured it. All this holds good in respect to the crime of genocide (including the crime against the Jewish People) which, it is true, is committed by the killing of the individuals, but is intended to exterminate the nation as a group. According to Hitler's murderous racialism, the Nazis singled out Jews from all other citizens in all the countries of their domination, and carried the Jews to their death solely because of their racial affiliation. Even as the Jewish People constituted the object against which the crime was directed, so it is now the competent subject to place on trial those who assailed its existence. The fact that this People changed after the Holocaust from object to subject, and from the victim of a racial crime to the wielder of authority to punish the criminals, is a great historic right that cannot be dismissed. The State of Israel, the sovereign State of the Jewish People, performs through its legislation the task of carrying into effect the right of the Jewish People to punish the criminals who killed its sons with intent to put an end to the survival of this people. We are convinced that this power conforms to existing principles of the law of nations. For all these reasons we have dismissed the first submission of Counsel against the jurisdiction of this Court.
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