The Trial of Adolf Eichmann: Judgment
(Part 2 of 70)


10. The first contention of Counsel that Israel Law is in conflict with international law, and that therefore it cannot vest jurisdiction in this Court, raises the preliminary question as to the validity of international law in Israel and as to whether, in the event of a conflict between it and the laws of the land, it is to be preferred to the laws of the land. The law in force in Israel resembles that which is in force in England in this regard. See Oppenheim (Lauterpacht), International Law, 8th Ed., 1955, para. 21a, p. 39:
"As regards Great Britain, the following points must be noted: (a) All such rules of customary international law as are either universally recognized or have, at any rate, received the assent of this country are per se part of the law of the land. To that extent there is still valid in England the common law doctrine, to which Blackstone gave expression in a striking passage, that the Law of Nations is part of the law of the land."
But on the other hand (p. 41):
"English statutory law is absolutely binding upon English courts, even if in conflict with international law, although in doubtful cases there is a presumption that an Act of Parliament did not intend to overrule international law. The fact that international law is part of the law of the land and is binding directly on courts and individuals does not mean that English law recognizes in all circumstances the supremacy of international law.
(Note 3) It is of importance not to confuse, as many do, the question of the supremacy of international law and of the direct operation of its rules within the municipal sphere. It is possible to deny the former while fully affirming the latter."

See also - Croft v. Dunphy (1933) A.C. 156 (p. 164):

"Legislation of the Imperial Parliament, even in contravention of generally acknowledged principles of international law, is binding upon and must be enforced by the courts of this country, for in these courts the legislation of the Imperial Parliament cannot be challenged as ultra vires (Mortensen v. Peters)."
And also - Polites v. Commonwealth of Australia (1945) 70 C.L.R. 60 (Annual Digest, 1943-1945, Case No. 61):
"The Commonwealth Parliament can legislate on these matters in breach of international law, taking the risk of international complications. This is recognized as being the position in Great Britain... The position is the same in the United States of America... It must be held that legislation otherwise within the power of the Commonwealth Parliament does not become invalid because it conflicts with a rule of international law, though every effort should be made to construe Commonwealth statutes so as to avoid breaches of international law and of international comity."
As regards Israel, the Deputy President, Justice Cheshin, said in Criminal Appeal 174/54 (10 Piske Din, 5,p.17):
"As regards the question of the adoption by the national law of the principles of international law, we may safely rely on Blackstone's view in his Commentaries on the Laws of England (Book IV, Chap. 5):
`In England...the law of nations...is...adopted in its full extent by the common law, and is held to be part of the law of the land...without which it must cease to be a part of the civilized world.'
And that is the case in other countries, such as the U.S.A., France, Belgium, and Switzerland, where the usages of international law have been acknowledged as part of the law of the land..."
With respect to statutory law, Justice Agranat said in High Court Case 279/51 (6 Piske Din 945, p. 966):
"It is a well known rule that a local statutory law must be construed in accordance with the rules of public international law, unless its tenor requires another interpretation."
And in Criminal Appeal 5/51 (5 iske Din 1061), Justice Sussman said (p. 1065):
"It is a well-known rule that in interpreting the law, the court shall endeavour, as far as possible, to avoid a clash between the national law and the rules of international law which are binding upon the state; but this rule is only one of the rules of interpretation. When we are not dealing with the common law, but with statutory law, where the will of the legislator is clear from its wording, the will of the legislator must be enforced without regard to any contradiction between that statutory law and international law... Moreover, the courts of this country derive their jurisdiction not from the system of international law but from the laws of the land."
Our jurisdiction to try this case is based on the Nazis and Nazi Collaborators (Punishment) Law, a statutory law the provisions of which are unequivocal. The Court has to give effect to the law of the Knesset, and we cannot entertain the contention that this law conflicts with the principles of international law. For this reason alone, Counsel's first contention must be rejected.

11. But we have also perused the sources of international law, including the numerous authorities mentioned by learned Counsel in his comprehensive written brief upon which he based his oral pleadings, and by the learned Attorney General in his comprehensive oral pleadings, and have failed to find any foundation for the contention that Israeli law is in conflict with the principles of international law. On the contrary, we have reached the conclusion that the Law in question conforms to the best traditions of the law of nations.

The power of the State of Israel to enact the Law in question or Israel's "right to punish" is based, with respect to the offences in question, from the point of view of international law, on a dual foundation: The universal character of the crimes in question and their specific character as being designed to exterminate the Jewish People. In what follows, we shall deal with each of these two aspects separately.

12. The abhorrent crimes defined in this Law are crimes not under Israeli law alone. These crimes which offended the whole of mankind and shocked the conscience of nations are grave offences against the law of nations itself ("delicta juris gentium"). Therefore, so far from international law negating or limiting the jurisdiction of countries with respect to such crimes, in the absence of an International Court, the international law is in need of the judicial and legislative authorities of every country, to give effect to its penal injunctions and to bring criminals to trial. The jurisdiction to try crimes under international law is universal.

13. This universal authority, namely the authority of the "forum deprehensionis" (the court of the country in which the accused is actually held in custody) was already mentioned in the Corpus Juris Civilis (see: C. 3, 15, "ubi de criminibus agi oportet"), and the towns of northern Italy had already in the Middle Ages taken to trying specific types of dangerous criminals ("banniti, vagabundi, assassini") who happened to be within their area of jurisdiction, without regard to the place in which the crimes in question were committed (see Donnedieu de Vabres Les Principes Modernes du Droit Penal International, 1928, p. 136). Maritime nations have also since time immemorial enforced the principle of universal jurisdiction in dealing with pirates, whose crime is known in English law as "piracy jure gentium." See Blackstone, Commentaries on the Laws of England, Book IV, Chap. 5 "Of Offences against the Law of Nations," p. 68:

"The principal offences against the law of nations, animadverted on as such by the municipal laws of England, are of three kinds... 3. Piracy."
p. 71:
"Lastly, the crime of piracy, or robbery and depredation upon the high seas, is an offence against the universal law of society; a pirate being, according to Sir Edward Coke (3 Inst. 113) hostis humani generis. As, therefore, he has renounced all the benefits of society and government, and has reduced himself afresh to the savage state of nature, by declaring war against all mankind, all mankind must declare war against him; so that every community hath a right by the rule of self-defence, to inflict that punishment upon him which every individual would in a state of nature have been otherwise entitled to do, for any invasion of his person or personal property."
See also In re Piracy Jure Gentium, (1934) A.C. 586 (per Viscount Sankey L.C.):
"With regard to crimes as defined by international law, that law has no means of trying or punishing them. The recognition of them as constituting crimes, and the trial and punishment of the criminals, are left to the municipal law of each country. But whereas according to international law the criminal jurisdiction of municipal law is ordinarily restricted to crimes by its own nationals wherever committed, it is also recognized as extending to piracy committed on the high seas by any national on any ship, because a person guilty of such piracy has placed himself beyond the protection of any state. He is no longer a national, but hostis humani generis, and as such he is justiciable by any state anywhere."
14. Hugo Grotius had already in 1625 raised in his famous book De Jure Belli ac Pacis (On the Law of War and Peace) the basic question of the "right to punish" under international law, the very question learned Counsel raised.

In Book Two, chapter 20 "De Poenis" (On Punishment), the author says, inter alia:

"Qui punit, ut recte puniat, jus habere debet ad puniendum, quod jus ex delicto nocentis nascitur." (In order that he who punishes may duly punish, he must possess the right to punish, a right deriving from the criminal's crime.)
In the writer's view, the object of punishment may be the good of the criminal, the good of the victim, or the good of the community. According to natural justice, the victim may take the law into his hand and himself punish the criminal, and it is also permissible for any person of integrity to inflict punishment upon the criminal; but all such natural rights have been limited by organized society and have been delegated to the courts of law. The learned author here adds these important words (our emphasis):
"Sciendum quoque est reges, et qui par regibus jus obtinent, jus habere poenas poscendi non tantum ob injurias in se aut subditos suos commissas, sed et ob eas quae ipsos peculiariter non tangunt, sed in quibusvis personis jus naturae aut gentium immaniter violantibus." (It must also be known that kings, and any who have rights equal to the rights of kings, may demand that punishment be imposed not only for wrongs committed against them or their subjects, but also for all such wrongs as do not specifically concern them, but violate in extreme formin relation to any persons, the law of nature or the law of nations."
And he goes on to explain:
"Nam libertas humanae societati per poenas consulendi, quae initio ut diximus penes singulos fuerat, civitatibus ac judiciis institutis penes summas potestates resedit, non proprie quo aliis imperant, sed qua nemini parent. Nam subjectio aliis id jus abstulit." (For the liberty to serve the welfare of human society by imposing penalties which had at first been, as already stated, in the hands of the individuals, has been exercised since the constitution of states and courts, by those with the supreme authority, not because they dominate others, but because they are subject to no one. For subjection to government has taken this right away from others.)
It is therefore the moral duty of every sovereign state (of "kings and any who have rights equal to the rights of kings") to enforce the natural right to punish, possessed by the victims of the crime whoever they may be, against criminals whose acts have "violated in extreme form the law of nature or the law of nations." By these pronouncements the father of international law laid the foundations for the future definition of the "crime against humanity" as a "crime under the law of nations" and to universal jurisdiction over such crimes.

15. Vattel says in his book Le Droit des Gens (1758) Book I, chap. 19, paragraphs 232-233, inter alia: "Car la Nature ne donne aux hommes et aux Nations le droit de punir, que pour leur defence et leur surete, d'ou il suit que l'on ne peut punir que ceux par qui on a ete lese.

"Mais cette raison meme fait voir, que si la Justice de chaque Etat doit en general se borner a punir les crimes commis dans son territoire, il faut excepter de la regle ces scelerats, qui, par la qualite et la frequence habituelle de leurs crimes, violent toute surete publique, et se declarent les ennemis du Genre- humain. Les empoisonneurs, les assassins, les incendiaires de profession peuvent etre extermines partout ou on les saisit; car ils attaquent et outragent toutes les Nations, en foulant aux pieds les fondemens de leur surete commune. C'est ainsi que les Pirates sons envoyes a la potence par les premiers entre les mains de qui ils tombent."
Wheaton states in his Elements of International Law, 5th English Ed., 1916, p. 104 (our emphasis):
"The judicial power of every independent state...extends ...to the punishment of piracy and other offences against the law of nations, by whomsoever and wheresoever committed."
Hyde states in his International Law (Chiefly as Interpreted and Applied by the United States), Vol. 1, 2nd Ed. (1947) in paragraph 241 (p. 804):
"In order to justify the criminal prosecution by a state of an alien on account of an act committed and consummated by him in a place outside of its territory...it needs to be established that there is 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, however, apparent when the act of the individual is one which the law of nations itself renders internationally illegal or regards as one which any member of the international society is free to oppose and thwart."
It must be added that the learned author, who (in keeping with the Anglo-Saxon tradition) is generally meticulous and rigid in his pronouncements on the question of criminal jurisdiction with respect to crimes committed by foreigners abroad (see also his further remarks, ibid., p. 805, and his supporting reference to the dissenting opinion of Justice Moore in the "Lotus" case), specifically favours a clear exception with respect to "offences under the law of nations." See also ibid., para. 11(a) (p. 33):
"The commission of particular acts, regardless of the character of the actors, may be so detrimental to the welfare of the international society that its international law may either clothe a state with the privilege of punishing the offender, or impose upon it the obligation to endeavour to do so... In both situations, it is not unscientific to declare that he is guilty of conduct which the law of nations itself brands as internationally illegal. For it is by virtue of that law that such sovereign acquires the right to punish and is also burdened with the duty to prevent or prosecute."
Glaser in Infraction Internationale, 1957, defines each of the crimes dealt with here, especially the crime against humanity" and the "genocide crime" as "infraction internationale" or "crime d'ordre international" (p. 69), and states (p. 31)
"Les infractions internationales sont soumises, aussi longtemps qu'une jurisdiction criminelle internationale n'existe pas, au regime de la repression ou de la competence universelle. Dans ce regime, les auteurs de pareilles infractions peuvent etre poursuivis et punis en quelque pays que ce soit, donc sans egard au lieu ou l'infraction a ete commise: Ubi te invenero, ibi te judicabo."
Cowles, in "Universality of Jurisdiction over War Crimes," 33 California Law Review (1945), p. 177, et seq., states in the following terms the reasons for the rule of law as to the "universality of jurisdiction over war crimes," which was adopted and determined by the United Nations War Crimes Commission (See: Law Reports of Trials of War Criminals, Vol. 1, p. 53):
"The general doctrine recently expounded and called `universality of jurisdiction over war crimes,' which has the support of the United Nations War Crimes Commission and according to which every independent state has, under international law, jurisdiction to punish not only pirates but also war criminals in its custody, regardless of the nationality of the victim or of the place where the offence was committed, particularly where, for some reason, the criminal would otherwise go unpunished."
Instances of the extensive use made by the Allied Military Tribunals of the principle of universality of jurisdiction of war crimes of all classes (including "crimes against humanity") will be found in Vols. 1-15 of the Law Reports of Trials of War Criminals.

16. We have said that the crimes dealt with in this case are not crimes under Israeli law alone, but are in essence offences against the law of nations. Indeed, the crimes in question are not a free creation of the legislator who enacted the law for the punishment of Nazis and Nazi collaborators, but have been stated and defined in that law according to a precise pattern of international laws and conventions which define crimes under the law of nations.

The "crime against the Jewish People" is defined on the pattern of the genocide crime defined in the "Convention for the prevention and punishment of genocide" which was adopted by the United Nations Assembly on 9 December 1948. The "crime against humanity" and the "war crime" are defined on the pattern of crimes of identical designations defined in the Charter of the International Military Tribunal (which is the Statute of the Nuremberg Court) annexed to the Four- Power Agreement of 8 August 1945 on the subject of the trial of the principal war criminals (the London Agreement), and also in Law No. 10 of the Control Council of Germany of 20 December 1945. The offence of "membership of a hostile organization" is defined by the pronouncement in the judgment of the Nuremberg Tribunal, according to its Charter, declaring the organizations in question to be "criminal organizations," and is also patterned on the Control Council Law No. 10. For purposes of comparison, we shall set forth in what follows the parallel articles and clauses side by side.


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