The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of Adolf Eichmann
Session 3
(Part 1 of 3)

Holocaust, Adolf Eichmann, Eichmann trial, holocaust, Jewish holocaust
0226 Nissan 5721 (12 April 1961)

Presiding Judge: I declare the third session of this trail open and read out Decision No. 2

On the application of the Attorney General by virtue of my powers according to paragraph 16 of the Criminal Procedure Amendment (Investigation of Crimes and Causes of Death) Law (5718-1958){Laws of the State of Israel, Vol. 12 (5718 - 1947/8, p. 66}, I hereby order the detention of the Accused until the conclusion of the trial in this Court.

The Attorney General may continue his argument.

Attorney General: With the Court's permission, when I ended yesterday I was dealing with the question as to whether the International Military Tribunal at Nuremberg had introduced anything new into public international law as contrasted with what had existed previously. This morning I want to continue to establish my contention by saying that even the Moscow Declaration, as well as the London Agreement and the Nuremberg Charter and also the judgment of the Military Trinunal, as well as other decisions given against Nazi War Criminals, did not change anything. They merely set down in black on white what was previously taken for granted. What are the sources of public international law? This is defined in Article 38 of the Statute of the International Court of Justice at the Hague, which was signed in San Francisco on 26 June 1945. When the United Nations was established and the judicial competence of the International Court at the Hague was redefined, the following provisions were laid down in Article 38:

"The Court whose function is to decide in accordance with International Law such disputes as are submitted to it, shall apply:

(a) International conventions whether general or particular, establishing rules expressly recognized by the contesting states; (b) international custom as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; (d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations as subsidiary means for the determination of rules of law."

I have been reading from the official publication "International Court of Justice, Charter of the U. N. Statute and Rules of Court, Series D. No. 1."

These are the sources of public international law recognized by the family of nations. And this is how the matter was expressed in one of the judgments of the American Military Tribunal in Case No. 11, presided over by Judge Wannerstrom, a judge of the State of Iowa, Judge Carter, a judge of the State of Nebraska, and Judge George Burke, a member of the Supreme Court of the State of Michigan. I read from Volume 11 of the Green Series , from the judgment in the matter of United States versus List, a case known as the "Hostage Case," on page 1235.

"The sources of international law which are usually enumerated are (1) customs and practices accepted by civilized nations generally, (2) treaties, conventions, and other forms of interstate agreements, (3) the decisions of international tribunals, (4) the decisions of national tribunals dealing with international questions, (5) the opinions of qualified text writers, and (6) the diplomatic papers.

These sources provide a frame upon which a system of international law can be built but they cannot be deemed a complete legal system in themselves. Any system of jurisprudence, if it is to be effective, must be given an opportunity to grow and expand to meet changed conditions. The codification of principles is a helpful means of simplification but it must not be treated as adding rigidity where resiliency is essential. To place the principles of international law in a formalistic straitjacket would ultimately destroy any effectiveness that it has acquired.

The tendency has been to apply the term "customs and practices accepted by civilized nations generally," as it is used in international law, to the laws of war only. But the principle has no such restricted meaning. It applies as well to fundamental principles of justice which have been accepted and adopted by civilized nations generally. In determining whether such a fundamental rule of justice is entitled to be declared as principles of international law, an examination of the municipal laws of states in the family of nations will reveal the answer. If it is found to have been accepted generally as a fundamental rule of justice by most nations in their municipal law, its declaration as a rule of international law would seem to be fully justified."

My argument is that the acts which were defined as crimes in the Nuremberg Charter and thereafter in a large number of countries and amongst them, I am glad to say, the State of Israel, are general principles of behaviour of man towards his neighbour, without which human society cannot exist at all. The fact that Hitler's regime destroyed these principles makes absolutely no difference. They are still, nevertheless, principles of international law. And perhaps it would not be superfluous to point out that courts in Germany itself do, today, recognize the fact that an unjust law "unrichtiges Recht," is not law and is not to be implemented. I would draw the Court's attention to the judgment of the Court for Major Crimes No. 1, of the District Court at Nuremberg (this was a German case - not international) of 10 May 1949 (the reference number is 230/48). I shall submit the entire judgment, with a Hebrew translation of the extract on which I am relying.

Presiding Judge: Is this a case regarding international law or perhaps it contains something about the conflict between an ordinary law and the Constitution?

Attorney General: That is there too, but I am only relying on this judgment in order to show that Germany too, after the War, recognized that the laws enacted during the time of the Nazi regime were not to be recognized as lawful.

Presiding Judge: Is the reference to laws of the Nazis?

Attorney General: Yes.

Presiding Judge: This is what was not clear.

Attorney General: Oppression should not take the place of justice. {1 The allusion is to Isaiah 15:7.} Germany too acknowledges this today.

Dr. Servatius: I object to the production of this document because, in my opinion, it is irrelevant and it does not apply here. We have to test whether it is relevant to the question of international law or not. The question whether the laws of the Nazis were just laws or not does not serve any purpose here and it is of no importance to this matter which we are discussing. Similarly, the judgment quoted here was not the judgment of a superior court but a decision of a "Landgericht." It is in no way a binding authority.

Presiding Judge: Perhaps this is only a case of misunderstanding. The Attorney General is not seeking to submit this judgment as an exhibit in the case, that is to say, as evidence but as a legal authority. We are accustomed to accept such authorities as well - quite freely. The only question could be whether the copy is accurate.

Dr. Servatius: I have no objection to the submission of the judgment for this purpose. I would be grateful to receive a copy of the judgment.

Presiding Judge: Do you have a copy for Dr. Servatius?

Attorney General: We shall prepare copies and hand one to Dr. Servatius.

Presiding Judge: But are these pages a translation of extracts of the judgment?

Attorney General: They are a translation of one portion only, of that portion to which I referred when speaking of "unrichtiges Recht."

In a recent judgment of the Supreme Court in the Federal Republic which is to be found in "Neue Juristische Wochenschrift," dated 9 February 1961, similar remarks are made. The judgment is on page 278:

"No person who had a more or less comprehensive insight into the events and into what has happened since then, no such person could have doubted any more by the year 1940 that the Nazi regime did not recoil from committing crimes. Hence, only with exceedingly naive persons is there reason to assume that there could have been a error here - an error regarding the illegal nature of what was done - on the part of those who participated in Nazi crimes out of devoted adherence to the regime."
Again, I quote this, not in order to argue any point, but to illustrate that, in Germany too, courts recognize today that the regime as such perpetrated crimes.

After the end of the Second World War, efforts were made to ensure the fundamental rights of man. International treaties were drawn up in order to facilitate the solution of the problems of the suffering and the oppressed, in order to declare to the whole world what were man's rights as a human being. The Court will observe, amongst the authorities which I have quoted, that even in this supreme effort to guarantee human rights to all dwellers on earth, one deliberate and systematic exception was made - namely war criminals. The right to try them was specifically reserved, and it is still laid down in all these treaties that in spite of anything which may be said therein, it is permitted to place them on trial for their misdeeds.

The fundamental declaration was the Universal Declaration of Human Rights. I read from an official publication of the United Nations, which translated it into the languages of all members of the United Nations, including Hebrew, with the emblem of the United Nations. In it was laid down the basic rights of freedom from arrest, the principle of equal rights, the principle of fair and open trial for all mankind. But this is what is stated in Article 11 (2):

"No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law at the time when it was committed..."
Through the Universal Declaration of Human Rights, mankind took upon itself to punish crimes against international law, and to punish people, not states, and to punish individuals, not groups. The principle of individual responsibility, about which I shall have more to say later, was also laid down in this universal declaration, entrenching rights but also imposing duties. All human beings have this right, the basic freedoms, but there is an obligation, the obligation to behave according to the principles of justice and the law acceptable to the peoples of the world, and whoever does not behave in this manner should be placed on trial for a breach of international law.

The European Convention for the protection of Human Rights and Fundamental Freedoms is to be found in the United Nations publication Yearbook on Human Rights for 1950, on page 418. I read Article 7 on page 421:

"Art. 7. (1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. (2) This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by civilized nations."
Presiding Judge: Which convention is this?

Attorney General: The European Convention, drawn up in Rome on 4 November 1950 in which many countries joined, including those who were not members of the United Nations, and, in this context, West Germany as well.

Already in 1947, the United Nations decided to assign to the International Law Commission, which is the second most important body in the world in matters of international law, the formulation of the principles of international law, as they were defined in the Nuremberg Charter and in the judgment of the International Military Tribunal.

This honourable Court should kindly take note that they were speaking of formulating existing principles. As I have already said, the civilized nations acknowledged that these principles had long been their heritage.

In accordance therewith the Commission prepared the formulation of principles, and I submit here the official report of the International Law Commission, which had been presented to the United Nations Assembly already in the year 1950. On page 11 can be found Part III, and I shall read from the English edition of the Formulation of the Nuremberg Principles:

"Under General Assembly's resolution 177 (II) Paragraph a, the International Law Commission was directed to 'formulate the principles of international law, recognized in the Charter of the Neurnberg Tribunal and in the judgment of the Tribunal.'

The Principles adopted are as follows:

Principle I: Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.

Principle II: The fact that Internal Law does not impose a penalty for an act which constitutes a crime under International Law, does not relieve the person who committed the act from responsibility under International Law.

Principle III: The fact that the person who committed an act, which constitutes a crime under International Law, acted as Head of State or responsible Government official, does not relieve him from responsibility under International Law.

Principle IV: The fact that the person acted pursuant to an order of his Government or of his superior, does not relieve him from responsibility under International Law, provided a moral choice was in fact possible to him.

Principle V: Any person charged with a crime under International Law has the right to a fair trial on the facts and law."

Presiding Judge: Is this the Commission's Report?

Attorney General: Yes - this is the Report of the International Law Commission.{United Nations Document A/1306, Yearbook of the International Law Commission, 1950, Vol. 2, p. 364}

Presiding Judge: What happened to this Report?

Attorney General: The United Nations were involved from 1950 to 1961 in many pressing matters, and this Report was put off from agenda to agenda and to this day remains on the agenda of the United Nations.{See Resolutions of the United Nations General Assembly Nos. 488(V) of 12 December 1950 and 1186(XII) of 11 December 1957} But, in fulfilling the objective of formulating the principles - and this is the deciding factor - the Commission, comprising jurists of all the nations, met and reached finality and formulated the principles which, in the opinion of that Commission - and it was a very important body - are the principles of public international criminal law. And there is no significance at all in the fact whether the whole Assembly of the United Nations did or did not approve of that report. The fact that the principles were formulated in accordance with the resolution of the United Nations - that is the decisive factor. And following this:

"Principle VI: The crimes hereinafter set out are punishable as crimes under International Law:

(a) Crimes against peace:

planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;


(b) War crimes:

violations of the laws or customs of war...

c) Crimes against humanity:

murder, starvation, enslavement, deportation and other inhuman acts, done against any civilian population or prosecution on political, racial or religious grounds, when such acts are done or such prosecutions are carried on in execution of or in connection with any crime against peace or any war crimes."

A further evolution in the same matter occurred with the adoption at Geneva on 28 July 1951 of a Convention relating to the Status of Refugees. When the United Nations were obliged to solve the problem of refugees in the world, they drew up a treaty amongst themselves, with which were associated not only the members of the United Nations but also Switzerland, the Vatican and West Germany. The treaty is to be found in Rashumot (Conventions and Agreements) Volume 3, No. 65 on page 5.{See U.N. Treaty Series, vol. 189, p. 150} It was designated to alleviate the distress of refugees, but it provides in Chapter I, Article 1, F(a):
"The Provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime or a crime against humanity as defined in the international instruments drawn up to make provision in respect to such crimes.

And when the United Nations came to draw up a Convention of how to deal with stateless persons - the Court will find the Convention in Rashumot Volume 8, page 533, Convention No. 245 - it is again laid down there:

"This Convention shall not apply:

(iii) To persons with respect to whom there are serious reasons for considering that:

(a) They have committed a crime against peace, a war crime or a crime against humanity, as defined in the international instrument drawn up to make provisions in respect of such crimes"; [Chapter I, Article 1].

And I am quoting all these in order to point out that since 1945 and thereafter, the accepted principles of crimes against humanity were rooted in the judicial consciousness of the peoples of the world and these are today not subject to argument and that enlightened mankind willingly established in a number of rulings that such acts constituted crimes. Germany too, signed the two last- mentioned charters without any reservations. And when the State of Israel had to determine its domestic law for the punishment of Nazis and their collaborators, it did so on that basis. Legislation in that form or another, was adopted by many different countries. In the United Kingdom it was done by "Royal Warrant" dated 14 July 1945, which the Court

003-02 will find in Military Courts Manual by Treadwell, on page 101. (Treadwell was Lieutenant Colonel, Solicitor of the Supreme Court, formerly Military Prosecutor in the Jerusalem Military Court). In referring to war crimes he says:

"'War Crime' means a violation of the laws and usages of war committed during any war in which His Majesty has been or may be engaged at any time since the 2nd September 1939"
He thereafter develops the framework of "war crimes" and lays down the method of trial and punishment in respect of them.

Presiding Judge: Before military tribunals?

Attorney General: Before military tribunals.

Presiding Judge: English, British?

Attorney General: Yes, British.

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