The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of Adolf Eichmann
Defence Submission 2
(Part 1 of 4)

Holocaust, Adolf Eichmann, Eichmann trial, holocaust, Jewish holocaust
Part 2: The meaning of "nullum crimen, nulla poena sine lege praevia" in the criminal proceedings against Eichmann

A. General remarks and scope of the discussion

I. The principle of the prohibition of criminal statutes having retrospective effect is generally described, in continental jurisdiction, by the maxim "nullum crimen, nulla poena sine lege (scripta et praevia)"; in Anglo-American jurisdictions, it is customary to call it: prohibition of "ex-post-facto legislation". The principle of "nullum crimen" includes, in addition to the prohibition of legislation having retrospective effect, also the principle of certainty, i.e., the requirement of a distinct definition of the facts constituting an offence.

II. The Accused Eichmann is charged in the Information with the commission of offences all of which are classified as offences against sec.1. (crimes against the Jewish People, crimes against humanity and war crimes) and against sec. 3 (crimes of membership) of the Nazi Punishment Law. In the Information, reference is made, in addition to the aforesaid provisions, also to sec. 23 of the Criminal Code Ordinance, 1936. This latter provision does not define facts constituting an offence, but the rules regarding accessories; in particular it regulates the question of the indirect commission of an offence. This provision can therefore be disregarded in the following discussion; for Eichmann's punishment as having acted indirectly would be unobjectionable even without the existence of a provision regulating the indirect commission of an offence (provided, of course, that Israel has jurisdiction and the material validity of the Nazi Punishment Law is established). The discussion can therefore be confined to secs. 1 and 3 of the Nazi Punishment Law.

Owing to this restriction, there is also no need to discuss the question whether objections based upon the principle of "nullum crimen" might be raised against secs. 2 and 4 of the Nazi Punishment Law which refer expressly to offences under the "Criminal Code Ordinance" of 1936. However - should the Information be amended so as to apply a different legal provision to the facts as charged - it will be sufficient to state that the Criminal Code Ordinance continues to be in force as new Israeli law. Although the Ordinance continues to be in force as to its contents - more or less - as enacted in 1936, its legal basis as part of Israeli law, however, is only the provision of the Declaration of Independence, dated 14 May 1948 - that the law in force in Palestine on that date shall continue to be in force, inasmuch as it is not in contradiction to the legal principles embodied in the Declaration of Independence - and the corresponding provision of sec. 11 of the "Law and Administration Ordinance, 5708-1948," dated 21 May 1948.

III. Crime against humanity[1] and the crime of membership in an organization (as a crime against humanity in the wider connotation) are offences unknown in Israeli law before the enactment of the Nazis and Nazi Collaborators (Punishment) Law on 1 August 1950. Neither were these offences known in international criminal law up to the end of the Second World War. This statement cannot be met by the objection that in Israeli law - as well as in the law of other nations - certain varieties of the crime against humanity, as for instance homicide, had been punishable by law already before 1950, and that to that extent crimes against humanity should not be considered as being a "new" offence at all. But in reply to that objection it has to be stated that sec. 1 of the Nazi Punishment Law - as well as art. 6(c) of the London Charter and art.II 1(c) of the Control Council Law No.10 which already served as the model for the Israeli provision - is not intended to bring about only a specification of facts which had already constituted an offence and a change in the penalties provided, but to establish a new offence which is intended to deal with a kind of criminal activity entirely new in the view of Israel (and of the allied victorious powers).[2] This applies, in particular, to the crimes against the Jewish People characterized by the offender's intention "to destroy the Jewish People in whole or in part" (sec. 1 (b) of the Nazi Punishment Law). The criminal proceedings in Israel against Eichmann are distinguished, in addition, by the fact that at the time when the Accused had committed the offences imputed to him, a general Israeli criminal code under which the "classic" crimes, as murder, unlawful wounding, deprivation of liberty etc., had been made punishable, had not even existed and that Israel, as has been demonstrated above in detail, cannot claim jurisdiction under international law over the Accused Eichmann either in respect of these "classic" crimes or in respect of the crimes against humanity.

These facts are corroboration of the view that secs. 1 and 3 of the Nazi Punishment Law constitute, without any doubt, an "ex-post-facto law" - a criminal law having no retrospective effect.

B. I. The principle of "nulla poena sine lege" in continental-European jurisdictions

1. Germany

The catchwordlike formulation of the principle has its origin with Paul Johann Anselm Feuerbach who, in his "Lehrbuch des gemeinen in Deutschland gueltigen peinlichen Rechts" (1st ed. 1801), coined the following dictum:

"Nulla poena sine lege, nulla poena sine crimine, nullum crimen sine poena legali."
However, it would be erroneous to assume that this formula is also the historical origin of the principle itself, the history of the principle is much longer.[3]

At the time of the Weimar Republic, this principle has been entrenched constitutionally as a basic right in art. 116 of the Constitution of the Reich. The Bonn Basic Law for the Federal Republic of Germany, dated 1949, has likewise established the prohibition of legislation with retrospective effect as a basic right, in art. 103 (II). The retrospective effect of the criminal statute, as well as its construction by way of analogy to the detriment of the Accused, has been - or is - prohibited in both cases by virtue of constitutional provision.

2. France

The prohibition of construction by way of analogy and of legislation with retrospective effect had already been one of the demands of the French revolution. This demand had been expressed in art. 8 of the Declaration of Human Rights, dated 26 August 1789, as follows:

"Nul ne peut etre puni qu'en vertu d'une loi etablie et promulgee anterieurement au delit et legalement appliquee."
Art. 14 of the French constitution added thereto:
"La loi qui punirait des delits avant qu'elle existat, serait une tyrannie, l'effet retroactif donne a cette loi, un crime."
The Penal Code of 1810 - which is still in force at present - has given expression to the prohibition of legislation with retrospective effect in its art. 4, as follows:
"Nulle contravention, nul delit, nul crime, ne veuvent etre punis de peines qui n'etaient pas prononcees par la loi avant qu'ils fussent commis."
The result of the foregoing is that France, too, has established the prohibition of legislation with retroactive effect and of the construction of statutes by way of analogy. It has to be admitted that French jurisprudence has claimed the power of elastic interpretation to a wider extent than e.g. German jurisprudence; in these instances it has frequently at least verged upon analogy as a means of construction.[4] Moreover, there have been in France criminal statutes with retrospective effect; however, these statutes always provided only for the increase of penalties but not for the creation of new offences.[5]

3. The Soviet Union

Already the "Principles of Criminal Procedure of the USSR and of the Republics of the Union" of 1924 provided, in art. 3., for the prohibition of legislation with retrospective effect. However, in practice, these principles have been frequently disregarded.[6]

The "Principles of Criminal Legislation of the USSR and of the Republics of the Union", dated 25 December 1958, expressly provided, in art. 6 (1) and (3), for the prohibition of retrospective application:

"(1) The criminal nature and the punishment of an act are determined by the law which was in force at the time when the act was committed.


(3) A statute providing for the punishment of an act or increasing penalties has no retrospective effect."

Although the practice which disregards the prohibition of retrospective application which had been in force already in 1924 justifies even today the exercise of some caution in the evaluation of the chances of the actual respect for the principle, nevertheless, in Schroeder's opinion,7 it cannot be denied that the prohibition of retrospective application established in art. 6 of the "Principles of 1958" has some actual contents of reality for political and social reasons.

II. The principle of "nulla poena sine lege" in Anglo- American jurisdictions

As to interpretation by way of analogy and the creation of new offences, Anglo-American law has always conferred upon the courts wider powers than those vested in the continental courts. This difference is based, in the last analysis, upon the principles of the common law which, by its very nature, is prevented from excluding the creation of criminal customary law. An important example is provided by the decision in Rex v. Manley[8] - which has met with some vehement criticism[9] - where the court practically created a new offence, although relying upon precedents (their relevance in the case in question has been strongly disputed). On the whole it may, however, be concluded that in England the practice of judge-made law within the framework of the Common Law, has been recognized, as a matter of principle, also as far as criminal law is concerned, but that this practice has been exercised with the greatest caution.[10] This is also confirmed by Radbruch:

"The English judges have exercised their power to create new criminal law by way of precedent, only with judicious caution: `In all periods of English history it has been far more difficult to enlarge the scope of criminal law by way of judicial precedent than any other branch of the law' (Holdsworth)."[11]
For the sake of completeness, however, two statements from more recent times ought to be mentioned where - in connection with the trials of war criminals - the existence of the law-making function of judges has been denied generally. In this sense, it has been stated by the American Judge Leon W. Power:[12]
"One thing which should be made unmistakably clear at the outset is that the Tribunal is not a law-making institution. I violently disagree with the opinion that we are engaged in enforcing international law which has not been codified, and that we have an obligation to lay down rules of conduct for the guidance of nations in future. Such a conception entirely misconstrues our function and our power, and must inevitably lead to error of the grossest sort."
A similar opinion has been voiced by the Indian judge Pal.[13] Moreover, there is no room for exaggerating the difference between English judge-made law and the continental system of statutory offences. The meshwork of precedents, in the meantime, has become so closely knit, that, owing to the existing binding force of precedents there is no longer any material difference between the continental and the Anglo-American systems of criminal law. Jescheck is therefore correct in stating that the "era of unfettered power to create new law has come to an end and is a matter of the past."[14]

In addition thereto it has to be stated that since the beginning of the second half of the nineteenth century criminal law in England and the USA is more and more regulated by statute.[15] Today, in England, most provisions of criminal law and most of the definitions of offences are based upon statute.[16]


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