The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of Adolf Eichmann
Defence Submission 1
(Part 8 of 8)

Holocaust, Adolf Eichmann, Eichmann trial, holocaust, Jewish holocaust
The tribunals were established by, and derived their powers from, the victors alone, for the trial of the vanquished and of no one else. It was by the victors alone that the Charter and the Code of International Law were drawn up. There was something the spectacles of British, French and American judges sitting on the Bench with colleagues who, however impeccable as individuals, represented a country which before, during and since the trial has perpetrated half the political crimes in the calendar. And in spite of the specious arguments (on page 38) of the Nuremberg Judgment, I do not see how anyone can deny that under a cloak of justice these trials were just an old, old story - one law for the victors and another for the vanquished. Vae victis!"[207]

Lord Hankey remarks furthermore[208] that today, in England and in the USA, an uneasy feeling existed with regard to trials of war criminals, owing to the application of different laws to victors and vanquished. He considers the judgments of Nuremberg and Tokyo as an infringement on the principles of independence and impartiality of the tribunal as well as of the prohibition of legislation with retrospective effect.[209] Therefore these verdicts did not benefit international law. On the contrary:

"In these circumstances the value of the Nuremberg and Tokyo trials for the establishment of a Rule of Law appear negligible. Rather have they given it a grave setback."[210]
Lord Hankey continues and quotes[211], in support of his statement, an article published in the "Times" of 21 June 1949 by Lord Oaksey who, as Lord Justice Lawrence, had been President of the Nuremberg International Military Tribunal. In this article, the former President of the Tribunal made the following statement:
"After the Nuremberg Trial it seemed that the rules of law laid down there would be recognized by all civilized nations. Now it was doubtful whether that acceptance could be relied on...It does not appear that there is any principle we can hope to rely on for the rule of law that must some day govern the world. It appears at present impossible to rely on the submission of all nations to a complete system of international law."[212].
After these statements, which show a mood of resignation, Lord Hankey, too, reaches the conclusion:
"that the Nuremberg and the Tokyo trials have failed to establish international confidence in any rule of law they sought to apply."[213]
Summarizing and for the sake of completeness it ought to be mentioned that writers such as Kelsen[214], Finch,[215], Borchard,[216] Morgan[217] and Jescheck[218] have also refused to recognize the Nuremberg judgment of the International Military Tribunal as a precedent in international criminal law.

(d) Application of the results arrived at to the Eichmann case

(aa) Crimes against humanity

As to crimes against humanity - and to this category belong also the crimes against the Jewish People imputed to the Accused - it results from our enquiry up to now that the London Charter and the judgment of the Nuremberg International Military Tribunal did not change international law so as to extend the universality principle to the aforesaid category of crimes. Insofar as the Allied Powers had tried and punished crimes against humanity, this power was not based upon the universality principle, but upon their claim to exercise such a jurisdiction; being a state which had not been at war with Germany, it cannot rely either on the jurisdiction over crimes against humanity, deriving possibly, from the unconditional surrender, the existence of a condominium or the law of occupation.

As far as Israel is concerned, the legal situation has to be determined by existing international law in force at the time when the offences imputed to the Accused were committed.

However, in this respect it has to be stated that the view may quite well be advanced that crimes against humanity are to be considered as unlawful acts in international law;[219] but the crime against humanity is not - and was not at the time - recognized as a criminal offence by general international law.[220]

Occasionally an attempt has been made to base the claim for criminal jurisdiction of a state over crimes against humanity upon a right of humanitarian intervention. In this respect, e.g., the American Military Tribunal[221] in the Nuremberg Trials has relied upon a statement of the Swiss scholar of international law, J.K. Bluntschli, made in 1878 which reads "that states are entitled to voice protest in the name of international law, where human rights have been infringed to the detriment of any race."[222]

However, the idea of a humanitarian intervention cannot be used as a solid basis for Israeli jurisdiction over the Accused Eichmann.

It must be admitted that during the nineteenth century there were a number of humanitarian interventions.[223] However, it has to be stated at the same time, that, notwithstanding this practice of States, the legitimacy of these interventions was, at least, controversial.[224] Moreover, it is important to emphasize that in most cases the intervention was confined to diplomatic protests and representations, rupture of diplomatic relations, military threats by mobilization of the navy, and that active intervention had been an isolated exception (e.g. 1860: mission of a French expeditionary corps to Syria owing to the extermination of Christian Maronites by Druse connived at by the Turkish authorities; intervention of the USA in Cuba which, in 1898, was the cause of the Spanish-American war). However, the decisive fact is that in all these cases no individual intervention was carried out - and the punishment of a foreigner for crimes against humanity committed abroad, on the strength of the universality principle, would amount to such an intervention. In all these cases collective interventions took place.

Exactly the same view had been expressed in 1920 in the 3rd edition of Oppenheim's "International Law":

"...whether there is really a rule of the Law of Nations which admits such interpretation may well be may perhaps be said that in time the Law of Nations will recognize the rule that interventions in the interest of humanity are admissible, provided they are exercised in the form of collective intervention of the Power."[225]
However, just recently, the law of intervention has developed rather towards an accentuation of the prohibition of intervention in the internal and external affairs of another State. Suffice it to recall, in support of this statement, art. 15 of the Bogota Charter of the Organization of American States of 30 April 1948 which reads as follows:
"No State or group of States has the right to intervene, directly or indirectly, for any reason whatsoever, in the internal or external affairs of any other State."
This prohibition extends, of course, also to humanitarian intervention.

It will presumably not be necessary to explain in detail that a humanitarian intervention (including - and particularly - a collective intervention) can hardly be imagined in view of the present political situation and constellation. Let us only mention in passing the idea - occasionally put forward in the USA - of the "liberation of the peoples of Eastern Europe" within the meaning of a humanitarian intervention or the possibility of a humanitarian intervention by the USA in Cuba, in order to show convincingly and irrefutably that the idea of humanitarian intervention today is bare of any actual contents in the political sphere.

Lauterpacht's description of the actual legal situation is therefore correct; he states:

"No general rule of positive international law can as yet be asserted which gives to States the right to punish foreign nationals for crimes against humanity in the same way as they are, for instance, entitled to punish acts of piracy."[226]
An additional reasoning - although more in the nature of consideration of legal policy - prohibits the extension of the universality principle to crimes against humanity.

One does not have to go as far as the critical remarks made on the lack of certainty in the definition of the offence "crime against humanity" by the London scholar of international law, Smith, who holds the view that this term "has an obvious resemblance to Hitler's doctrine about acts which are `contrary to sound public opinion' (gesundes Volksempfinden).[227] Nevertheless unbiased examination cannot avoid the result that the "crime against humanity" is devoid of proper constituent facts, that it constitutes an offence the precise outlines of which cannot be ascertained.[228] In view of this situation, the extension of the universality principle to "crimes against humanity" would amount to the grant of national jurisdiction without any boundaries whatsoever. For the soundness of this view there are hardly more competent witnesses than the former German Minister of Justice, Professor Gustav Radbruch - who had been a victim of National-Socialist persecution and the first professor at the German university who, on 9 May 1933, was removed from the exercise of his functions by the National-Socialists - and the respected French scholar and French chief judge in the Nuremberg International Military Tribunal, Professor Donnedieu de Vabres.

Radbruch was unable to see in art. 10 II 1 c of Law No. 10 of the Control Council - which, adopting exactly the London Charter, made punishable crimes against humanity - as much as "an attempt at defining punishable actions."[229] Donnedieu de Vabres holds the same view and, in addition thereto, has emphasized the danger of this legal institution in the legal and political sphere:

"The doctrine of crimes against humanity is dangerous - dangerous for the nations owing to the lack of precise definition, and dangerous for Governments as being likely to be used as a pretext for the intervention of a State in the internal affairs of weaker States."[230]
The question which has been raised cannot be answered differently by assuming that the wrongful nature and the criminality of crimes against humanity can be based upon the consensus of moral conceptions of all civilized nations, upon "international morality." This term, however, cannot constitute a sound basis for the extension of the universality principle to crimes against humanity. This will be demonstrated and supported by authorities in detail, later on, in the second part of this investigation, when the principle of "nulla poena sine lege" will be discussed. In this context it will be sufficient to refer to the tragedy - as it may be called without exaggeration - of the project of a Convention on Human Rights. Since the establishment of the United Nations, so far no agreement has been reached on a binding catalogue of basic human values and basic human liberties. Even the "General Declaration of Human Rights" dated 10 December 1948 - which could be adopted at all, on condition that no obligations whatsoever in international law be attached to it - did not meet with the unanimous approval of the members of the United Nations. This reference should be sufficient, in this context, to show the extent of the consensus of today's community of international law in the question of humanitarian values and the real force which may be attributed today to "international morality."

Finally, modern practice of international agreements is evidence against the extension of the universality principle to crimes against humanity. Noteworthy in the first place is the Convention on Genocide of 9 December 1948 which came into force on 21 January 1951. On the question of jurisdiction,[231] this agreement precisely does not base itself on the universality principle, but on the territorial principle.[232] Only the State on the territory of which the genocide has been committed has jurisdiction over the offender. This provision for jurisdiction corresponds also to the mutual obligation of extradition provided for by the agreement.

The European Convention on Human Rights and Basic Liberties of 4 November 1950, it is true, grants any State the right to intervene for the protection of human rights, to empower the Commission for Human Rights to deal with complaints of violations of the Convention, even if the injured person is not one of its nationals (art.24), and in case of need, to start proceedings in the Tribunal (art. 48). On the other hand, the Convention has not provided for criminal jurisdiction based upon the universality principle. In conclusion, it has therefore to be emphasized that the universality principle cannot be extended to crimes against humanity. Therefore, Israel cannot base its jurisdiction over the Accused Eichmann on the universality principle either.

(bb) War crimes

The war crimes imputed to the Accused in count 8 of the information appear to be, according to their nature, crimes against humanity. The information mentions ill-treatment, deportation and murder of Jewish inhabitants - i.e. facts constituting crimes against humanity exactly as defined in art. 1 of the "Nazis and Nazi Collaborators (Punishment) Law."

The comments made above on "crimes against humanity" apply therefore mutatis mutandis. Therefore Israel cannot rely upon the universality principle in order to justify a claim for jurisdiction over Eichmann in respect of the war crimes imputed to him.

(cc) Membership in an enemy organization.

The universality principle also cannot serve as a basis for the claim of jurisdiction of the State of Israel over Eichmann by reason of his membership in an enemy organization.

Two comments ought to be added in order to complete the aforesaid: The penal provision in sec. 3 of the "Nazis and Nazi Collaborators (Punishment) Law" is open to the same fundamental objections as the corresponding provision in art. 10 of the London Charter. Therefore they need not be repeated. However, it is noteworthy that the Nuremberg International Tribunal itself has applied this penal provision only with certain restrictions. The International Tribunal declared that mere membership is not sufficient in order to prosecute a person for the "crime of membership".[233] The verdict in the Wilhelmstrasse case also adheres to this principle: "Mere membership is not sufficient proof of guilt."[234] This restrictive interpretation has to be understood in connection with the tendency of the International Military Tribunal and the American military tribunals to uphold categorically the principle of personal guilt.[235]

It is however, more important that Israel, by incorporating art. 9 of the London Charter and the findings of the judgment of the Nuremberg International Tribunal of 30 September 1946, concerning the "criminal organization" in sec.3 of the Nazis and Nazi Collaborators (Punishment) Law, has not converted a rule of existing international criminal law into a provision of its municipal law. It has to be emphasized again that neither the London Charter nor the judgment of the International Military Tribunal has created new general international criminal law which could now be relied upon by Israel.

The criminal responsibility of the crime of membership is therefore not merely declared by way of repetition in sec. 3, but legislatively created as such.

Therefore in sec. 3, too, a claim for national criminal jurisdiction is put forward which is not based upon any principle of international law and not even on the universality principle.

C. Conclusion of the first part: The conclusion of the foregoing is that Israel cannot rely upon any rule of international law in order to justify its claim for jurisdiction over Eichmann and that the exercise of Israeli jurisdiction over the Accused Eichmann would, on the contrary, be in violation of existing international law.


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