The Trial of Adolf Eichmann: Judgment
(Part 4 of 70)

23. Moreover, even within the ambit of the contractual application of the Convention, it cannot be assumed that Article 6 is designed to limit the jurisdiction of countries to try genocide crimes by the principle of territoriality. Without entering into the general question of the limits of municipal criminal jurisdiction, it may be said that there is general agreement that customary international law does not prohibit a state from trying its citizens for offences they have committed abroad (and in the light of subsisting legislation in many countries against the extradition of their citizens the existence of such an authority is essential to prevent criminals from behaving in a "hit and run" manner, by fleeing to their own country).

Had Article 6 meant to provide that those accused of genocide shall be tried only by "a competent court of the country in whose territory the crime was committed" (or by an "international court" which has not been constituted), then that article would have foiled the very object of the Convention "to prevent genocide and inflict punishment therefor." In the Sixth Committee, the delegates of several countries pointed to such a case, as well as to other cases of well- established jurisdiction in many states, such as the commission of crimes against the citizens of the state, and after a lengthy debate it was agreed to append the following statement to the report of the Committee:

"The first part of Article 6 contemplates the obligation of the State in whose territory acts of genocide have been committed. Thus, in particular, it does not affect the right of any State to bring to trial before its own tribunals any of its nationals for acts committed outside the State." (U.N. Doc. A/C. 6/SR.. 134 p. 5)
The words "in particular" are designed neither to negate nor to affirm jurisdiction in other cases.

N. Robinson, who refers to the resolution of the Sixth Committee, adds in his The Genocide Convention, 1960, on p. 84:

"The legal validity of this statement is, however, open to question. It was the opinion of many delegations that `Article 6 was not intended to solve questions of conflicting competence in regard to the trial of persons charged with Genocide; that would be a long process. Its purpose was merely to establish the obligations of the State in which an act of Genocide was committed' F (A/C.6/SR. 132, p. 9).

However, as the chairman rightly pointed out, the report of the Sixth Committee could only state that a majority of the Committee placed a certain interpretation on the text; that interpretation could not be binding on the delegations which had opposed it. `Interpretation of texts had only such value as might be accorded to them by the preponderance of opinion in their favor' F (A/C.6/SR. 132, p. 10). It is obvious that the Convention would be open to interpretation by the parties thereto; should disputes relating to the interpretation arise, the International Court of Justice would be called upon to decide what is the correct interpretation. In dealing with such problems the Court could obviously use the history of the disputed article."

P.N. Drost, states in The Crime of State, Vol. II: Genocide (1959) (pp. 101-102):
"In the discussions many delegations expressed the opinion that Article 6 was not meant to solve questions of conflicting or concurrent criminal jurisdiction. Its purpose was merely to lay down the duty of punishment of the State in whose territory the act of genocide was committed (U.N. Doc. A/C. 6/SR. 132)... It seems clear that the Article does not forbid a Contracting Power to exercise jurisdiction in accordance with its national rules on the criminal competence of its domestic courts. General international law does not prohibit a state to punish aliens for acts committed abroad against nationals."
The learned author proceeds to say on p. 131:
"Also the courts of the country to which the criminals belong by reason of nationality, were expressly mentioned in the debates as being competent, if the lex fori so admits, to exercise penal jurisdiction in cases arising abroad. The forum patriae rei was recognized as equally competent under the domestic law, applying in such case the principle of active personality. But then, many states apply in certain cases the principle of protective jurisdiction which authorizes the exercise of jurisdiction over aliens in respect of crimes committed abroad when the interests of the state are seriously involved. When the victim of physical crime is a national of the state which has arrested the culprit, the principle of passive personality may come into play and the forum patriae victimae may be competent to try the case.

By way of exception - and the crime of genocide surely must be considered exceptional in this respect - the principle of universal repression is applied to crimes which have been committed neither by nor against nationals, nor against public interests nor on the territory of the state whose courts are considered competent nevertheless to exercise criminal jurisdiction by reason of the international concern of the crime or the international interest of its repression. None of these forms of complementary competence additional to the territorial jurisdiction as basic competence of the domestic courts has been excluded under Article 6 of the present Convention. There was no need to stipulate these jurisdictional powers which all states possess unless particular provisions of international law prohibit or limit the exercise."

This Convention may be contrasted with four Geneva Conventions of 12 August 1949:

(Geneva Conventions for (1) the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, (2) of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, (3) Relative to the Treatment of Prisoners at War, (4) Relative to the Protection of Civilian Persons in Time of War).

These Conventions provide that -

"Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches (of the Convention as defined in the following Article), and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case."
(Article 49 of Convention No. 1, article 50 of Convention No. 2, article 129 of Convention No. 3 and article 146 of Convention No. 4). This establishes the principle of "universality of jurisdiction with respect to war crimes," as obligatory jurisdiction of the High Contracting Parties, an obligation from which none of them may withdraw and which none of them may waive (as expressly stated in the above_mentioned Conventions). That obligation is binding not only on the belligerents, but also on the neutral parties to the Conventions. See British Manual of Military Law, Part III (The Law of War on Land), 1958, para. 282, note 2. M. Greenspan, The Modern Law of Land Warfare 1959, p. 503.

25. On the other hand, in the Convention for the Prevention and Punishment of Genocide, Member States of the United Nations did not reach quite so far-reaching an agreement, but contented themselves with the determination of territorial jurisdiction as a compulsory minimum. It is the consensus of opinion that the absence from this Convention of a provision establishing the principle of universality (and, with that, the failure to constitute an international criminal tribunal) is a grave defect in the Convention which is likely to weaken the joint efforts for the prevention of the commission of this abhorrent crime and the punishment of its perpetrators, but there is nothing in this defect to make us deduce any tendency against the principle of the universality of jurisdiction with respect to the crime in question.

It is clear that the reference in Article 6 to territorial jurisdiction, apart from the jurisdiction of the non-existent international tribunal, is not exhaustive, and every sovereign state may exercise its existing powers within the limits of customary international law, and there is nothing in the adherence of a state to the Convention to waive powers which are not mentioned in Article 6. It is in conformity with this view that the Law for the Prevention and Punishment of Genocide, 5710-1950, provided in section 5 that "any person who committed an act outside of Israel which is an offence under this law may be tried and punished in Israel as though he committed the act inside Israel."

This Law does not apply with retroactive effect and does not therefore pertain to the offences dealt with in this case. Our view as to the universality of jurisdiction is not based on this Law or on this interpretation of Article 6 of the Convention, but derives from the basic nature of the crime of genocide as a crime of utmost gravity under international law.

The significance and relevance of the Convention to this case lies in the confirmation of the international nature of the crime, a confirmation which was unanimously given by the United Nations Assembly and which was adhered to, among other peoples, by the German people as well (in 1954 the German Federal Republic adhered to the Convention and enacted a law - BGBL II, 729 - which gave effect to the Convention in Germany and added to the German criminal law article 220A against genocide - Voelkermord - a crime defined according to Article 2 of the Convention). The "crime against the Jewish People" under section 1 of the Israeli Law constitutes a crime of "genocide" within the meaning of Article 2 of the Convention, and inasmuch as it is a crime under the law of nations, Israel's legislative authority and judicial jurisdiction in this matter is based upon the law of nations.

26. As to the crimes defined in Article 6 of the Charter of the International Military Tribunal, that Tribunal said in its judgment on "the principal war criminals" (IMT, Vol. 1, p. 218) inter alia :

"The Charter is not an arbitrary exercise of power on the part of the victorious nations, but in the view of the Tribunal, as will be shown, it is the expression of international law existing at the time of its creation, and to that extent is itself a contribution to international law."
As regards the crimes defined in Control Council Law No. 10, which was taken as a basis, among other cases, for twelve important cases tried by the United States Military Tribunals in Nuremberg, it was stated in the judgment passed on the "Jurists" ("Justice Case," Trials of War Criminals, Vol. III, 954 ff (p. 968) that:
"The IMT Charter, the IMT Judgment, and Control Council Law 10 are merely `great new cases in the book of international law.' ...Surely C.C. Law 10, which was enacted by the authorized representatives of the four greatest powers on earth, is entitled to judicial respect when it states: `Each of the following acts is recognized as a crime.' Surely the requisite international approval and acquiescence is established when 23 states, including all of the great powers, have approved the London Agreement and the IMT Charter, without dissent from any state. Surely the IMT Charter must be deemed declaratory of the principles of international law, in view of its recognition as such by the General Assembly of the United Nations."
The judgment then proceeds to quote the resolution which was unanimously adopted on 11 December 1946 by the United Nations Assembly that:
"The General Assembly...affirms the principles of international law recognized by the Charter of the Nuernberg Tribunal and the judgment of the Tribunal."
Further on, the judgment draws a distinction between the substantive principles of international law which lay down that "war crimes" and "crimes against humanity" are crimes whenever and wherever they were committed, and the actual enforcement of these universal principles which may come up against barriers of national sovereignty:
"We are empowered to determine the guilt or innocence of persons accused of acts described as "war crimes" and "crimes against humanity" under rules of international law. At this point, in connection with cherished doctrines of national sovereignty, it is important to distinguish between the rules of common international law which are of universal and superior authority on the one hand, and the provisions for enforcement of those rules which are by no means universal on the other...

As to the punishment of persons guilty of violating the laws and customs of war (war crimes in the narrow sense), it has always been recognized that tribunals may be established and punishment imposed by the state into whose hands the perpetrators fall. These rules of international law were recognized as paramount, and jurisdiction to enforce them by the injured belligerent government, whether within the territorial boundaries of the state or in occupied territory, has been unquestioned. (Ex parte Quirin, 317 U.S. 1; In re: Yamashita, 327 U.S. 1, 90 L Ed.)

However, enforcement of international law has been traditionally subject to practical limitation. Within the territorial boundaries of a state having a recognized, functioning government presently in the exercise of sovereign power throughout its territory, a violator of the rules of international law could be punished only by the authority of the officials of that state. The law is universal, but such a state reserves unto itself the exclusive power within its boundaries to apply or withhold sanctions... Applying these principles, it appears that the power to punish violators of international law in Germany is not solely dependent on the enactment of rules of substantive penal law applicable only in Germany... Only by giving consideration to the extraordinary and temporary situation in Germany can the procedure here be harmonized with established principles of national sovereignty.

In Germany an international body (the Control Council) has assumed and exercised the power to establish judicial machinery for the punishment of those who have violated the rules of the common international law, a power which no international authority without consent could assume or exercise within a state having a national government presently in the exercise of its sovereign powers."

It is clear from these pronouncements that the contention that the Nuremberg International Military Tribunal and the tribunals which were established in Germany by virtue of the Control Council Law No. 10 derive their jurisdiction from the capitulation and lack of sovereignty of Germany at that time, is true only with respect to the direct exercise of criminal territorial jurisdiction in Germany, such as was exercised by the above-mentioned tribunals, but it has adopted for itself substantive rules of universal validity in the law under discussion, the rules of international law on the subject of "war crimes" and "crimes against humanity". The judgment proceeds to say (p. 983):
"Whether the crime against humanity is the product of statute or of common international law, or, as we believe, of both, we find no injustice to persons tried for such crimes. They are chargeable with knowledge that such acts were wrong and were punishable when committed."
It is hardly necessary to add that the "crime against the Jewish People," which constitutes the crime of "genocide" is nothing but the gravest type of "crime against humanity" (and all the more so because both under Israeli law and under the Convention a special intention is requisite for its commission of a "crime against humanity"). Therefore, all that has been said in the Nuremberg principles on the "crime against humanity" applies a fortiori to the "crime against the Jewish People." If authority is needed for this, we find it in the same judgment, which says:
"As the prime illustration of a crime against humanity under C.C. Law 10, which by reason of its magnitude and its international repercussions has been recognized as a violation of common international law, we cite `genocide'..."
It is not necessary to recapitulate in Jerusalem, fifteen years after Nuremberg, the grounds for the legal rule on the "crime against humanity," for these terms are written in blood, in the torrents of the blood of the Jewish People which was shed. "That law," said Aroneanu in 1948, "was born in the crematoria, and woe to him who will try to stifle it"

(Cette loi est nee dans les fours crematoires; et malheur a celui qui tenterait de l'etouffer).

(Quoted by Boissarie in his introduction to Eugene Aroneanu, Le Crime contre l'Humanite, 1961.) The judgment against the "Operations Units" of 10 April 1948 (Einsatzgruppen Case), TWC IV, 411 ff. (p. 498) says on the same subject:

"Although the Nuernberg trials represent the first time that international tribunals have adjudicated crimes against humanity as an international offence, this does not, as already indicated, mean that a new offence has been added to the list of transgressions of man. Nuernberg has only demonstrated how humanity can be defended in court, and it is inconceivable that with this precedent extant, the law of humanity should ever lack for a tribunal. Where law exists a court will rise. Thus, the court of humanity, if it may be so termed, will never adjourn."

27. We have already dealt with the `principle of legality' that postulates "nullum crimen sine lege, nulla poena sine lege," and what has been stated above with respect to the municipal law is also applicable to international law. In the judgment against the "Major War Criminals" it is stated (p. 219):

"In the first place, it is to be observed that the maxim nullum crimen sine lege is not a limitation of sovereignty, but it is in general a principle of justice."
That is to say, the penal jurisdiction of a state with respect to crimes committed by `foreign offenders,' insofar as it does not conflict on other grounds with the principles of international law, is not limited by the prohibition of retroactive effect.
It is indeed difficult to find a more convincing instance of just retroactive legislation than the legislation providing for the punishment of war criminals and criminals against humanity and against the Jewish People, and all the reasons justifying the Nuremberg judgments justify eo ipse the retroactive legislation of the Israel legislator. We have already referred to the decisive ground of the existence of a `criminal intent' (mens rea), and this ground recurs in all the Nuremberg judgments. The Accused in this case is charged with the implementation of the plan for the "Final Solution of the Jewish Question." Can anyone in his right mind doubt the absolute criminality of such acts? As stated in the judgment in the case of "Operations Units" (p. 459):

"...There is (not) any taint of ex-post-facto-ism in the law of murder."

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