The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of Adolf Eichmann
Defence Submission 1
(Part 7 of8 )

Adolf Eichmann, Eichmann trial, holocaust, Jewish holocaust
Morgan uses even more aggressive language:
"It was not till 1940, that the latter (i.e. Lauterpacht) in the sixth edition of the book,[167] suddenly, like Saul on the road to Damascus, saw the light. He substituted for the heresy he had so long endorsed the orthodox doctrine that the plea of superior orders is not a defence. Why it should have taken Professor Lauterpacht so long to discover this, I do not know".[168]
It is noteworthy that Smith himself declares that the question in issue was not whether in substance the old wording ought to be preferred to the new one.[169] Morgan, too, did not consider himself prohibited from strongly opposing the change, and in particular its timing and purpose, notwithstanding the fact that, in the substance of the matter, he agrees with Lauterpacht and rejects Oppenheim's former doctrine.[170] Smith emphasizes as essential and objectionable the fact that the change in such an important matter had been made at a time when the indictment of war criminals had already reached the stage of preparation and most of the offences in question had already been committed. "To cut away a main ground of defence in this manner is wholly incompatible with our traditions of justice."[171]

(cc) The London Charter has not created new general international law, insofar as it made provisions in deviating from existing international law.

In the first place, the London Charter could create obligations only between the parties to that agreement, by reason of the limitation of the binding force of contracts to the parties thereof.[172] Likewise, these obligations extend only insofar as the contracting parties intended to bind themselves. However, there had been not only a tacit but an express agreement between the four Allied Powers not to be bound themselves by the law of the Charter. This defect makes it impossible to call the London Charter even only a starting point for general international criminal law in respect of crimes against peace and humanity and war crimes.

The fact that the International Military Tribunal, when applying the London Charter, did not apply general international law, is also recognized ever more by writers. However, first of all, a passage in the judgment of the International Military Tribunal itself appears to be most important:

"The making of the Charter was the exercise of the sovereign legislative power by the countries to which the German Reich unconditionally surrendered, and the undoubted right of these countries to legislate for the occupied territories has been recognized by the civilized world."[173]

In the opinion of the International Military Tribunal, therefore, the Four Powers, by signing the London Agreement, did not act as legislators of international law; their legislative power over Germany is based rather upon the unconditional surrender and the law of occupation.

Schwarzenberger, too, bases the jurisdiction upon a similar source, namely the assumption of a condominium of the occupying powers over Germany.[174] In his opinion, the Allied Powers, in establishing the International Military Tribunal, had done only what every occupying power could have done alone. This assertion of Schwarzenberger's is again in conformity with a statement in the judgment of the International Military Tribunal:

"The Signatory Powers created this Tribunal, defined the law it was to administer, and made regulations for the proper conduct of the Trial. In doing so, they have done together what anyone of them might have done singly."[175]
A particularly sober and explicit comment in this respect is made by the American scholar of international law, Borchard:
"...attention must be called to the fact that it was not an old or new international law which was applied, but a new municipal law, a criminal law which was not theretofore known...It must be, therefore, that the victors have simply availed themselves of their power as victors to judge the vanquished."[176]
Even if here and there particular objections may and must be raised to the various ramifications of the jurisdiction of the International Military Tribunal,[177] nevertheless it may be properly concluded from the statements quoted above of the International Military Tribunal itself, as well as of writers in international law, that in exercising jurisdiction on the basis of the London Charter the International Military Tribunal has not acted in application of a general rule of international criminal law.

A different conclusion will also not be reached by reference to the resolution of the General Assembly of the United Nations dated 11 December 1946 which (in extract) reads as follows:

"The General Assembly

Affirms the Principles of international law recognized by Charter of the International Military Tribunal and the judgment of the Tribunal."

However, this declaration does not amount to an elevation of the London Charter to the sphere of general international customary law. For a condition precedent for doing so would be that the States recognizing such a rule had been willing to submit themselves to such notions and to make it a guiding principle for their future actions in all similar cases.[178] The representatives of the States voting in the General Assembly were not empowered at all to make such a declaration which would bind their Governments.[179]

Otherwise it cannot be explained why the General Assembly, in the same resolution, directed the Codification Committee to draft definitions of the offence in question. The purpose of the direction was, obviously, that far-reaching legal provisions as those in question, must first be properly defined before entering into a final discussion on the question of their general binding character. In conformity with these facts, Schwarzenberger[180] and Jescheck[181] reject, therefore, the retrospective effect of the resolution of the United Nations. Schwarzenberger emphasizes that the resolution "leaves international customary law where it was at the time of the judgment."

It is unnecessary to enumerate in detail actual facts and events. The general observations and the sad statement will do instead, that since the resolution of the General Assembly of the United Nations dated 11 December 1946, international criminal law has by no means gained strength but has been pushed aside by practical politics and has by now been entirely side-tracked. This does not refer only to the fact that the United Nations have not succeeded to establish an International Criminal Tribunal and that furthermore the United Nations have not succeeded to define the term of "aggression." Rather more important is the fact that in the practice of States the principles of the London Charter and of the Nuremberg Tribunal, which have been affirmed by the United Nations, have been and are blatantly disregarded, and that thereby the creation of international customary criminal law is prevented. The examples of the disregard of the principles, e.g. aggressive war as crimes against peace, are too obvious and numerous to justify a detailed enumeration in this context. However this general review of an utterly regrettable political development leads to the inevitable result in law that the rules of the London Charter - which originally had not been rules of international law - have not been transformed into rules of general international law by customary practice which has grown up in the meantime.

(dd) The judgment of the Nuremberg International Military Tribunal of 30 September 1946 has not the force of precedent in general international criminal law

The absence of the force of precedent from the judgment of the Nuremberg International Military Tribunal is based, in the first place, upon the fact that the Tribunal has not applied international law, but the law of the occupying powers.

Moreover, the Nuremberg International Military Tribunal was not a genuine international tribunal, but a tribunal of the occupying powers. This results already from the legal basis of its establishment. Schwarzenberger has given expression to this fact by saying that the Nuremberg Tribunal had been "more akin to municipal war crime courts than to truly international tribunals."[182] Verdross, therefore, uses quite consistently only the term "Interallied Military Tribunal."[183] Kelsen[184] and Redslob[185] have emphasized that the International Military Tribunal had not been an international court.

But even assuming - wrongly - that the Nuremberg International Military Tribunal had been called correctly an "international" court, the tribunal possessed so many peculiar features as to deprive it of the character of genuine internationality, and its judgment of the force of precedent in general international criminal law. In the Nuremberg Tribunal, legislative and judical functions were not separated from each other, but both functions were exercised by various members of the tribunal simultaneously.

The Soviet chief judge, General Nikitschenko, and the acting French judge, Falco, exercised decisive influence upon the structure of the Charter, in their capacity as representatives of their nations at the London negotiations.[186] The American Acting Judge, Biddle, participated in the legislative process by being one of the signatories of the Yalta Agreement by which the United States expressed its basic view on the questions of punishment of German war criminals.

A further objection is based upon the fact that the Tribunal was composed of only representatives of the four big victorious powers. No neutral judges participated in the judicial process of the tribunal, and the principle of parity which is generally recognized in respect of exercise of jurisdiction in matters of international law, i.e. the principle of participation of representatives of all the parties to the case, had not been respected. This defect in the constitution of the International Military Tribunal was strongly castigated, in particular by English and American writers. The Englishman H.A. Smith, e.g., remarks as follows:

"Do we accept the principle of the independent authority of international law, or do we think that the victors in war have the right to re-fashion the law in order to be able to work their will upon the persons of their defeated enemies?"[187]
Smith calls the International Military Tribunal a "national tribunal of victors,"[188] and this opinion has been adopted also by Lord Hankey who has expressed it by referring to "a trial by the victors over the vanquished."[189] A similar view has also been voiced by Morgan.[190]

Furthermore, the establishment of the International Military Tribunal can be attacked by reason of the fact that, according to the record of the London Conference, it was established exclusively for the trial of German war criminals and that it was not intended to extend the scope of the Charter beyond the trial of German war criminals, nor even to submit the signatory powers themselves to its principles. The International Military Tribunal was therefore a typically extraordinary tribunal which was established exclusively for the conduct of one single and actual trial for which the accused were chosen by the prosecuting authority. The International Military Tribunal being in the nature of a tribunal "ad hoc" is in contradiction to the prohibition of extraordinary tribunals, established in most constitutions respecting the rule of law.

A further objection of considerable weight against the composition of the bench in the Nuremberg International Military Tribunal is the fact that Soviet judges participated in the trial of crimes against peace although the Soviet Union had been involved in the aggressive war against Poland.[191] However, even the Russian aggression of Poland can be disregarded and nevertheless the result will be that the Soviet judges, in respect of trials for crimes against peace, were disqualified ("judices inhabiles"), the Soviet Union having been declared to be aggressor by the League of Nations, in the case of the Soviet-Finnish war.

For all these reasons, it is impossible to recognize the London Charter as well as the judgment of the Nuremberg International Military Court of 30 September 1946 as having the force of precedent in international criminal law.

The soundness of the objections and of the conclusion resulting therefrom shall now be restated by way of summary. Already in 1944, Kelsen[192] called the Moscow Three- Power_Declaration a claim for jurisdiction of the victorious States over the war criminals of the enemy. He feared that such a jurisdiction would raise suspicion of vengeance:

" to the consideration that the criminal jurisdiction exercised by injured states over enemy subjects may be regarded as vengeance rather than justice and is consequently not the best means to guarantee future peace."[193]

Kelsen continues that "punishment of war criminals should be an act of international justice, not the satisfaction of a thirst for revenge. It is not compatible with the idea of international justice that only the vanquished states should be obliged to surrender their subjects to the jurisdiction of an international tribunal for the punishment of war crimes."[194] The victorious States, too, should submit themselves to the same law and to the jurisdiction of the same tribunal and have their war criminals tried by the international tribunal.[195]

When examining the London Charter and the Nuremberg verdict of the International Military Tribunal, Smith states that the "fundamental principle" of the "impartiality" of the tribunal has been violated.[196]

Moreover - and in addition to its nature as a "national tribunal of victors" - it has been affected with the further defect that "official aggressors" - this refers to Russia in respect of its aggression against Finland - had imputed to another nation the conduct of an aggressive war as an international crime and had been a judge in the matter of this accusation. Smith does not recoil from using the following language with regard to the case of Russia and Finland:

"Before the United Nations came into being, the Charter of the Nuremberg Tribunal gave dramatic expression to the new principle that aggression, if successful, has the effect of promoting the accused from the dock to the bench."[197]

Nuremberg had not been the implementation of international law as an "independent authority"; Nuremberg rather used "law as the instrument of power"[198] and thereby adopted a principle of "Nazi conception of justice."[199] For these reasons, Nuremberg could not constitute a precedent for the development of the customary law of nations.[200] Similar harsh criticism has been voiced by Lord Hankey whose name - as already mentioned - was included in a German list of allied "war criminals." He adopted[201] in the first place, with approval, a few sentences of the Indian judge Pal:

"A trial with law thus prescribed will only be a sham employment of legal process for the satisfaction of a thirst for revenge. It does not correspond to any idea of justice and may justly create the feeling that it is much more a political than a legal affair...[202] To say that the victor can define a crime as he will...and then punish...would be to revert back to those days when he was allowed to devastate the occupied country."[203]
Lord Hankey then repeats the speech[204] he had made on 5 May 1949 in the House of Lords to support an application for stay of proceedings against war criminals, made there by the Bishop of Chichester, Bell[205]. In this speech, Lord Hankey declared, inter alia, that in Nuremberg and in Tokyo the victors had tried the vanquished.[206]


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