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Last-Modified: 1999/05/28

Session No 3

26 Nissan 5721 (12 April 1961)

Presiding Judge: I declare the third session of this trail
open and read out Decision No. 2
On the application of the Attorney General by virtue of my
powers according to paragraph 16 of the Criminal Procedure
Amendment (Investigation of Crimes and Causes of Death) Law
(5718-1958){Laws of the State of Israel, Vol. 12 (5718 -
1947/8, p. 66}, I hereby order the detention of the Accused
until the conclusion of the trial in this Court.

The Attorney General: may continue his argument.

Attorney General: With the Court's permission, when I ended
yesterday I was dealing with the question as to whether the
International Military Tribunal at Nuremberg had introduced
anything new into public international law as contrasted
with what had existed previously. This morning I want to
continue to establish my contention by saying that even the
Moscow Declaration, as well as the London Agreement and the
Nuremberg Charter and also the judgment of the Military
Trinunal, as well as other decisions given against Nazi War
Criminals, did not change anything. They merely set down in
black on white what was previously taken for granted. What
are the sources of public international law? This is defined
in Article 38 of the Statute of the International Court of
Justice at the Hague, which was signed in San Francisco on
26 June 1945. When the United Nations was established and
the judicial competence of the International Court at the
Hague was redefined, the following provisions were laid down
in Article 38:

     "The Court whose function is to decide in accordance
     with International Law such disputes as are submitted
     to it, shall apply:
     (a) International conventions whether general or
     particular, establishing rules expressly recognized by
     the contesting states; (b) international custom as
     evidence of a general practice accepted as law; (c) the
     general principles of law recognized by civilized
     nations; (d) subject to the provisions of Article 59,
     judicial decisions and the teachings of the most highly
     qualified publicists of the various nations as
     subsidiary means for the determination of rules of

I have been reading from the official publication
"International Court of Justice, Charter of the U. N.
Statute and Rules of Court, Series D. No. 1."

These are the sources of public international law recognized
by the family of nations. And this is how the matter was
expressed in one of the judgments of the American Military
Tribunal in Case No. 11, presided over by Judge Wannerstrom,
a judge of the State of Iowa, Judge Carter, a judge of the
State of Nebraska, and Judge George Burke, a member of the
Supreme Court of the State of Michigan. I read from Volume
11 of the Green Series , from the judgment in the matter of
United States versus List, a case known as the "Hostage
Case," on page 1235.

     "The sources of international law which are usually
     enumerated are (1) customs and practices accepted by
     civilized nations generally, (2) treaties, conventions,
     and other forms of interstate agreements, (3) the
     decisions of international tribunals, (4) the decisions
     of national tribunals dealing with international
     questions, (5) the opinions of qualified text writers,
     and (6) the diplomatic papers.

     These sources provide a frame upon which a system of
     international law can be built but they cannot be
     deemed a complete legal system in themselves. Any
     system of jurisprudence, if it is to be effective, must
     be given an opportunity to grow and expand to meet
     changed conditions. The codification of principles is a
     helpful means of simplification but it must not be
     treated as adding rigidity where resiliency is
     essential. To place the principles of international law
     in a formalistic straitjacket would ultimately destroy
     any effectiveness that it has acquired.
     The tendency has been to apply the term "customs and
     practices accepted by civilized nations generally," as
     it is used in international law, to the laws of war
     only. But the principle has no such restricted meaning.
     It applies as well to fundamental principles of justice
     which have been accepted and adopted by civilized
     nations generally. In determining whether such a
     fundamental rule of justice is entitled to be declared
     as principles of international law, an examination of
     the municipal laws of states in the family of nations
     will reveal the answer. If it is found to have been
     accepted generally as a fundamental rule of justice by
     most nations in their municipal law, its declaration as
     a rule of international law would seem to be fully
My argument is that the acts which were defined as crimes in
the Nuremberg Charter and thereafter in a large number of
countries and amongst them, I am glad to say, the State of
Israel, are general principles of behaviour of man towards
his neighbour, without which human society cannot exist at
all. The fact that Hitler's regime destroyed these
principles makes absolutely no difference. They are still,
nevertheless, principles of international law. And perhaps
it would not be superfluous to point out that courts in
Germany itself do, today, recognize the fact that an unjust
law "unrichtiges Recht," is not law and is not to be
implemented. I would draw the Court's attention to the
judgment of the Court for Major Crimes No. 1, of the
District Court at Nuremberg (this was a German case - not
international) of 10 May 1949 (the reference number is
230/48). I shall submit the entire judgment, with a Hebrew
translation of the extract on which I am relying.

Presiding Judge: Is this a case regarding international law
or perhaps it contains something about the conflict between
an ordinary law and the Constitution?

Attorney General: That is there too, but I am only relying
on this judgment in order to show that Germany too, after
the War, recognized that the laws enacted during the time of
the Nazi regime were not to be recognized as lawful.

Presiding Judge: Is the reference to laws of the Nazis?

Attorney General: Yes.

Presiding Judge: This is what was not clear.

Attorney General: Oppression should not take the place of
justice. {1 The allusion is to Isaiah 15:7.} Germany too
acknowledges this today.

Dr. Servatius: I object to the production of this document
because, in my opinion, it is irrelevant and it does not
apply here. We have to test whether it is relevant to the
question of international law or not. The question whether
the laws of the Nazis were just laws or not does not serve
any purpose here and it is of no importance to this matter
which we are discussing. Similarly, the judgment quoted here
was not the judgment of a superior court but a decision of a
"Landgericht."  It is in no way a binding authority.

Presiding Judge: Perhaps this is only a case of
misunderstanding. The Attorney General is not seeking to
submit this judgment as an exhibit in the case, that is to
say, as evidence but as a legal authority. We are accustomed
to accept such authorities as well - quite freely. The only
question could be whether the copy is accurate.

Dr. Servatius: I have no objection to the submission of the
judgment for this purpose. I would be grateful to receive a
copy of the judgment.

Presiding Judge: Do you have a copy for Dr. Servatius?

Attorney General: We shall prepare copies and hand one to
Dr. Servatius.

Presiding Judge: But are these pages a translation of
extracts of the judgment?

Attorney General: They are a translation of one portion
only, of that portion to which I referred when speaking of
"unrichtiges Recht."
In a recent judgment of the Supreme Court in the Federal
Republic which is to be found in "Neue Juristische
Wochenschrift," dated 9 February 1961, similar remarks are
made. The judgment is on page 278:

     "No person who had a more or less comprehensive insight
     into the events and into what ha happened since then,
     no such person could have doubted any more by the year
     1940 that the Nazi regime did not recoil from
     committing crimes. Hence, only with exceedingly naive
     persons is there reason to assume that there could have
     been a error here - an error regarding the illegal
     nature of what was done - on the part of those who
     participated in Nazi crimes out of devoted adherence to
     the regime."

Again, I quote this, not in order to argue any point, but to
illustrate that, in Germany too, courts recognize today that
the regime as such perpetrated crimes.

After the end of the Second World War, efforts were made to
ensure the fundamental rights of man. International treaties
were drawn up in order to facilitate the solution of the
problems of the suffering and the oppressed, in order to
declare to the whole world what were man's rights as a human
being. The Court will observe, amongst the authorities which
I have quoted, that even in this supreme effort to guarantee
human rights to all dwellers on earth, one deliberate and
systematic exception was made - namely war criminals. The
right to try them was specifically reserved, and it is still
laid down in all these treaties that in spite of anything
which may be said therein, it is permitted to place them on
trial for their misdeeds.

The fundamental declaration was the Universal Declaration of
Human Rights. I read from an official publication of the
United Nations, which translated it into the languages of
all members of the United Nations, including Hebrew, with
the emblem of the United Nations. In it was laid down the
basic rights of freedom from arrest, the principle of equal
rights, the principle of fair and open trial for all
mankind. But this is what is stated in Article 11 (2):

     "No one shall be held guilty of any penal offence on
     account of any act or omission which did not constitute
     a penal offence, under national or international law at
     the time when it was committed..."

Through the Universal Declaration of Human Rights, mankind
took upon itself to punish crimes against international law,
and to punish people, not states, and to punish individuals,
not groups. The principle of individual responsibility,
about which I shall have more to say later, was also laid
down in this universal declaration, entrenching rights but
also imposing duties. All human beings have this right, the
basic freedoms, but there is an obligation, the obligation
to behave according to the principles of justice and the law
acceptable to the peoples of the world, and whoever does not
behave in this manner should be placed on trial for a breach
of international law.

The European Convention for the protection of Human Rights
and Fundamental Freedoms is to be found in the United
Nations publication Yearbook on Human Rights for 1950, on
page 418. I read Article 7 on page 421:

     "Art. 7. (1) No one shall be held guilty of any
     criminal offence on account of any act or omission
     which did not constitute a criminal offence under
     national or international law at the time when it was
     committed. (2) This article shall not prejudice the
     trial and punishment of any person for any act or
     omission which, at the time when it was committed, was
     criminal according to the general principles of law
     recognized by civilized nations."

Presiding Judge: Which convention is this?

Attorney General: The European Convention, drawn up in Rome
on 4 November 1950 in which many countries joined, including
those who were not members of the United Nations, and, in
this context, West Germany as well.

Already in 1947, the United Nations decided to assign to the
International Law Commission, which is the second most
important body in the world in matters of international law,
the formulation of the principles of international law, as
they were defined in the Nuremberg Charter and in the
judgment of the International Military Tribunal.

This honourable Court should kindly take note that they were
speaking of formulating existing principles. As I have
already said, the civilized nations acknowledged that these
principles had long been their heritage.

In accordance therewith the Commission prepared the
formulation of principles, and I submit here the official
report of the International Law Commission, which had been
presented to the United Nations Assembly already in the year
1950. On page 11 can be found Part III, and I shall read
from the English edition of the Formulation of the Nuremberg

     "Under General Assembly's resolution 177 (II) Paragraph
     a, the International Law Commission was directed to
     'formulate the principles of international law,
     recognized in the Charter of the Neurnberg Tribunal and
     in the judgment of the Tribunal.'

     The Principles adopted are as follows:
     Principle I: Any person who commits an act which
     constitutes a crime under international law is
     responsible therefor and liable to punishment.
     Principle II: The fact that Internal Law does not
     impose a penalty for an act which constitutes a crime
     under International Law, does not relieve the person
     who committed the act from responsibility under
     International Law.
     Principle III: The fact that the 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. Principle IV: The fact that
     the person acted pursuant to an order of his Government
     or of his superior, does not relieve him from
     responsibility under International Law, provided a
     moral choice was in fact possible to him.
     Principle V: Any person charged with a crime under
     International Law has the right to a fair trial on the
     facts and law."
Presiding Judge: Is this the Commission's Report?

Attorney General: Yes -  this is the Report of the
International Law Commission.{United Nations Document
A/1306, Yearbook of the International Law Commission, 1950,
Vol. 2, p. 364}

Presiding Judge: What happened to this Report?

Attorney General: The United Nations were involved from 1950
to 1961 in many pressing matters, and this Report was put
off from agenda to agenda and to this day remains on the
agenda of the United Nations.{See Resolutions of the United
Nations General Assembly Nos. 488(V) of 12 December 1950 and
1186(XII) of 11 December 1957} But, in fulfilling the
objective of formulating the principles - and this is the
deciding factor - the Commission, comprising jurists of all
the nations, met and reached finality and formulated the
principles which, in the opinion of that Commission - and it
was a very important body -  are the principles of public
international criminal law. And there is no significance at
all in the fact whether the whole Assembly of the United
Nations did or did not approve of that report. The fact that
the principles were formulated in accordance with the
resolution of the United Nations - that is the decisive
factor. And following this:

     "Principle VI: The crimes hereinafter set out are
     punishable as crimes under International Law:
     (a) Crimes against peace:
     planning, preparation, initiation or waging of a war of
     aggression or a war in violation of international
     treaties, agreements or assurances;
     (b) War crimes:

     violations of the laws or customs of war...
     c) Crimes against humanity:
     murder, starvation, enslavement, deportation and other
     inhuman acts, done against any civilian population or
     prosecution on political, racial or religious grounds,
     when such acts are done or such prosecutions are
     carried on in execution of or in connection with any
     crime against peace or any war crimes."

A further evolution in the same matter occurred with the
adoption at Geneva on 28 July 1951 of a Convention relating
to the Status of Refugees. When the United Nations were
obliged to solve the problem of refugees in the world, they
drew up a treaty amongst themselves, with which were
associated not only the members of the United Nations but
also Switzerland, the Vatican and West Germany. The treaty
is to be found in Rashumot (Conventions and Agreements)
Volume 3, No. 65 on page 5.{See U.N. Treaty Series, vol.
189, p. 150} It was designated to alleviate the distress of
refugees, but it provides in Chapter I, Article 1, F(a):

     "The Provisions of this Convention shall not apply to
     any person with respect to whom there are serious
     reasons for considering that:
     (a) he has committed a crime against peace, a war crime
     or a crime against humanity as defined in the
     international instruments drawn up to make provision in
     respect to such crimes.
     And when the United Nations came to draw up a
     Convention of how to deal with stateless persons - the
     Court will find the Convention in Rashumot Volume 8,
     page 533, Convention No. 245 - it is again laid down
     "This Convention shall not apply:
     (iii) To persons with respect to whom there are serious
     reasons for considering that:
     (a) They have committed a crime against peace, a war
     crime or a crime against humanity, as defined in the
     international instrument drawn up to make provisions in
     respect of such crimes"; [Chapter I, Article 1].

And I am quoting all these in order to point out that since
1945 and thereafter, the accepted principles of crimes
against humanity were rooted in the judicial consciousness
of the peoples of the world and these are today not subject
to argument and that enlightened mankind willingly
established in a number of rulings that such acts
constituted crimes. Germany too, signed the two last-
mentioned charters without any reservations. And when the
State of Israel had to determine its domestic law for the
punishment of Nazis and their collaborators, it did so on
that basis. Legislation in that form or another, was adopted
by many different countries. In the United Kingdom it was
done by "Royal Warrant" dated 14 July 1945, which the Court
will find in Military Courts Manual by Treadwell, on page
101. (Treadwell was Lieutenant Colonel, Solicitor of the
Supreme Court, formerly Military Prosecutor in the Jerusalem
Military Court). In referring to war crimes he says:

     "'War Crime' means a violation of the laws and usages
     of war committed during any war in which His Majesty
     has been or may be engaged at any time since the 2nd
     September 1939"

He thereafter develops the framework of "war crimes" and
lays down the method of trial and punishment in respect of

Presiding Judge: Before military tribunals?

Attorney General: Before military tribunals.

Presiding Judge: English, British?

Attorney General: Yes, British.

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