The Trial of Adolf Eichmann: Judgment
(Part 3 of 70)


Section 1(b) of the Israeli Law provides:

In this section --

"Crime against the Jewish People" means any of the following acts, committed with intent to destroy the Jewish People in whole or in part:

(1) killing Jews;

(2) causing serious bodily or mental harm to Jews;

(3) placing Jews in living conditions calculated to bring about their physical destruction;

(4) devising measures intended to prevent births among Jews"

(Subsections (5) to (7) have no relevance to this case).

Article II of the Convention for the Prevention and Punishment of the Crime of Genocide provides:

"In the present Convention genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic or religious group as such:

(a) killing members of the group;

(b) causing serious bodily or mental harm to members of the group;

(c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) imposing measures intended to prevent births within the group;

(e) forcibly transferring children of the group to another group."

Section 1(b) of the Israeli Law also provides:
"Crime against humanity" means any of the following acts: murder, extermination, enslavement, starvation or deportation and other inhumane acts committed against any civilian population, and persecution on national, racial, religious or political grounds."
Article 6 of the Charter of the Nuremberg Tribunal provides, inter alia:
"The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:

(c) Crimes against humanity: namely murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connexion with any crime within the jurisdiction of the Tribunal whether or not in violation of the domestic law of the country where perpetrated."

Article II of Control Council Law No. 10 provides:
"1. Each of the following acts is recognized as a crime:

(c) Crimes against humanity. Atrocities and offences, including, but not limited to, murder, extermination enslavement, deportation, imprisonment, torture, rape or other inhuman acts committed against any civilian population or persecution on political, racial or religious grounds, whether or not in violation of the domestic laws of the country where perpetrated."

Section 1(b) of the Israeli Law provides:
"War crime" means any of the following acts:

Murder, ill-treatment or deportation to forced labour or for any other purpose, of civilian population of or in occupied territory; murder or ill-treatment of prisoners of war or persons on the seas; killing of hostages; plunder of public or private property; wanton destruction of cities, towns or villages, and devastation not justified by military necessity."

Article 6 of the Nuremberg Tribunal Charter provides:
"(b) War crimes, namely violation of the laws of customs of war. Such violations shall include, but not be limited to: murder, ill-treatment or deportation to slave labour or for any other purpose, of civilian population of or in occupied territory, murder or ill- treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity."
Article II of Control Council Law No. 10 provides:
"(b) War Crimes. Atrocities or offences against persons or property constituting violations of the laws or customs of war, including, but not limited to, murder, ill-treatment or deportation to slave labour or for any other purpose, of civilian population from occupied territory, murder or ill_treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages or devastation not justified by military necessity."
Section 3(b) of the Israeli Law provides:
"In this section, "hostile organization" means:

(1) A body of persons which, under Article 9 of the Charter of the International Military Tribunal, annexed to the Four_Power Agreement of 8 August 1945 on the trial of the major war criminals, has been declared, by a judgment of that Tribunal, to be a criminal organization."

Article 9 of the International Military Tribunal Charter provides, inter alia:
"At the trial of any individual member of any group or organization the Tribunal may declare (in connexion with any act of which the individual may be convicted) that the group or organization of which the individual was a member was a criminal organization."
Article 10 of the same statute proceeds to add:
"In cases where a group or organization is declared criminal by the Tribunal, the competent national authority of any signatory shall have the right to bring individuals to trial for membership therein before national, military or occupation courts. In any such case the criminal nature of the group or organization is considered proved and shall not be questioned."
Article II of Control Council Law No. 10 provides:
"(d) Membership in categories of a criminal group or organization declared criminal by the International Military Tribunal."
17. The crime of "genocide" was first defined by Raphael Lemkin in his book Axis Rule in Occupied Europe (1944), in view of the methodical extermination of peoples and populations, and primarily the Jewish People by the Nazis and their satellites (after the learned author had already moved, at the Madrid 1933 International Congress for the Consolidation of International Law, that the extermination of racial, religious or social groups be declared "a crime against international law"). On 11 December 1946, after the International Military Tribunal pronounced its judgment against the principal German criminals, the United Nations Assembly, by its Resolution No. 96 (I), unanimously declared that "genocide" is a crime against the law of nations. That resolution said:
Genocide is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings; such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these groups, and is contrary to moral law and to the spirit and aims of the United Nations.

Many instances of such crimes of genocide have occurred when racial, religious, political and other groups have been destroyed, entirely or in part.

The punishment of the crime of genocide is a matter of international concern.

THE GENERAL ASSEMBLY, THEREFORE, AFFIRMS that genocide is a crime under international law which the civilized world condemns, and for the commission of which principals and accomplices - whether private individuals, public officials or statesmen, and whether the crime is committed on religious, racial, political or any other grounds - are punishable;

INVITES the Member States to enact the necessary legislation for the prevention and punishment of this crime;

RECOMMENDS that international co-operation be organized between States with a view to facilitating the speedy prevention and punishment of the crime of genocide, and, to this end,

REQUESTS the Economic and Social Council to undertake the necessary studies, with a view to drawing up a draft convention on the crime of genocide to be submitted to the next regular session of the General Assembly."

On 9 December 1948, the United Nations Assembly unanimously adopted the Convention for the Prevention and Punishment of the Crime of Genocide. The preamble and the first Article of the Convention read as follows:
"The Contracting Parties,

Having considered the declaration made by the General Assembly of the United Nations in its resolution 96(1) dated 11 December 1946 that Genocide is a crime under international law contrary to the spirit and aims of the United Nations and condemned by the civilized world;

Recognizing that at all periods of history Genocide has inflicted great losses on humanity; and

Being convinced that in order to liberate mankind from such an odious scourge international co-operation is required Hereby agree as hereinafter provided:

Article 1

The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war is a crime under international law, which they undertake to prevent and to punish.

18. On 28 May 1951, the International Court of Justice gave, at the request of the United Nations Assembly, an Advisory Opinion on the question of the reservations to that Convention on the Prevention and Punishment of the Crime of Genocide. The Advisory Opinion stated, inter alia (p. 23):
"The origins of the Convention show that it was the intention of the United Nations to condemn and punish genocide as `a crime under international law' involving a denial of the right of existence of entire human groups, a denial which shocks the conscience of mankind and results in great losses to humanity, and which is contrary to moral law and to the spirit and aims of the United Nations (Resolution 96 (1) of the General Assembly, December 11th, 1946). The first consequence arising from this conception is that the principles underlying the Convention are recognized by civilized nations as binding on States, even without any conventional obligation. A second consequence is the universal character both of the condemnation `in order to liberate mankind from such an odious scourge' (Preamble to the Convention). The Genocide Convention was therefore intended by the General Assembly and by the contracting parties to be definitely universal in scope. It was in fact approved on December 9th, 1948, by a resolution which was unanimously adopted by fifty- six States."
19. In the light of the repeated affirmation by the United Nations in the 1946 Assembly resolution and in the 1948 Convention, and in the light of the Advisory Opinion of the International Court of Justice, there is no doubt that genocide has been recognized as a crime under international law in the full legal meaning of this term, ex tunc; that is to say: The crimes of genocide committed against the Jewish People and other peoples were crimes under international law. It follows, therefore, in the light of the acknowledged principles of international law, that the jurisdiction to try such crimes is universal.

20. This conclusion encounters a serious objection in the light of Article 6 of the Convention which provides that:

"Persons charged with genocide or any of the other acts enumerated in Article 3 shall be tried by a competent tribunal of the States in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those contracting parties which shall have accepted its jurisdiction."
Prima facie this provision might appear to yield support for an argumentum e contrario, the very contention voiced by learned Counsel against the applicability of the principle of universal jurisdiction, and even against any exterritorial jurisdiction with respect to the crime in question: If the United Nations failed to give their support to universal jurisdiction by each country to try a crime of genocide committed outside its boundaries, but has expressly provided that, in the absence of an international criminal tribunal, those accused of this crime shall be tried by "a competent court of the country in whose territory the act was committed," how may Israel try the Accused for a crime that constitutes "genocide"?

21. In order to answer this objection, we must direct attention to the distinction between the rules of customary and the rules of conventional international law, a distinction which also found expression in the Advisory Opinion of the International Court of Justice with respect to the Convention in question. That Convention fulfils two roles simultaneously: In the sphere of customary law it re-affirms the deep conviction of all peoples that "genocide, whether in times of peace or in times of war, is a crime under international law" (Article 1). That confirmation which, as stressed in the Advisory Opinion of the International Court of Justice, was given "unanimously by fifty-six countries" is of "universal character," and the purport of which is that "the principles inherent in the Convention are acknowledged by the civilized nations as binding on the country even without a conventional obligation" (ibid). "

The principles inherent in the convention" are, inter alia, the criminal character of the acts defined in Article 2 (that is, the article upon which the definition of "a crime against the Jewish People" in the Israeli Law has been patterned), the penal liability for any form of participation in this crime (Article 3), the lack of immunity from penal liability for rulers and public officials (Article 4), and the fact that for purposes of extradition no political "character" may be attributed to any such crime (Article 7). These principles are "recognized by civilized nations," according to the conclusion of the International Court of Justice, and are "binding on the countries even without a conventional obligation"; that is to say, they constitute part of customary international law. The words "approve" in Article 1 of the Convention and "recognize" in the Advisory Opinion indicate approval and recognition ex tunc, namely the recognition and confirmation that the above-mentioned principles had already been part of the 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 - crimes of genocide which were perpetrated by the Nazis. So much for the first aspect of the Convention (and the important one with respect to this judgment) - the confirmation of certain principles as established rules of law in customary international law.

22. The second aspect of the Convention - the practical object for which it was concluded - is the determination of the conventional obligations between the contracting parties to the Convention for the prevention of such crimes in future and the punishment therefor in the event of their being committed. Already in UN Resolution 96(I) there came, after the "confirmation" that the crime of genocide constitutes a crime under international law, an "invitation," to all Member States of the United Nations "to enact the necessary legislation for the prevention and punishment of this crime," together with a recommendation to organize "international co-operation" between the countries with a view to facilitating the "prevention and swift punishment of the crime of genocide," and to this end the Economic and Social Council was charged with the preparation of the draft Convention. Accordingly, the "affirmation" that genocide, whether committed in time of peace or in time of war, constitutes a crime under international law is followed in Article 1 of the Convention by the obligation assumed by the contracting parties who "undertake to prevent and punish it," and by Article 5 they "undertake to pass the necessary legislation to this end."

In the wake of these obligations of the contracting parties to prevent the perpetration of genocide by suitable legislation and enforce such legislation against future perpetrators of the crime, comes Article 6 which determines the courts which will try those accused of this crime. It is clear that Article 6, like all other articles which determine the conventional obligations of the contracting parties, is intended for cases of genocide which will occur in future, after the ratification of the treaty or adherence thereto by the country or countries concerned. It cannot be assumed, in the absence of an express provision in the Convention itself, that any of the conventional obligations, including Article 6, will apply to crimes perpetrated in the past.

It is of the essence of conventional obligations, as distinct from the confirmation of existing principles, that unless another intention is implicit, their application shall be ex nunc and not ex tunc. Article 6 of the Convention is a purely pragmatic provision and does not presume to confirm a subsisting principle. Therefore, we must draw a clear line of distinction between the provision in the first part of Article 1, which says that "the contracting parties confirm that genocide, whether in times of peace or in times of war, is a crime under international law," i.e., a general provision which confirms the principle of customary international law that "is binding on all countries even without conventional obligation," and the provision of Article 6 which is a special provision in which the contracting parties pledged themselves to the trial of crimes that may be committed in future. Whatever may be the purport of this obligation within the meaning of the Convention (and in the event of differences of opinion as to the interpretation thereof the contracting party may, under Article 9, appeal to the International Court of Justice), it is certain that it constitutes no part of the principles of customary international law, which are also binding outside the contractual application of the Convention.


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