The Nizkor Project: Remembering the Holocaust (Shoah)

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

Holocaust, Adolf Eichmann, Eichmann trial, holocaust, Jewish holocaust
And on page 17, in paragraph 13 of the judgment, he states:
"As far as the question of the incorporation of the principles of international law in the national law is concerned, we adhere to the words of Blackstone in his Commentaries on the Laws of England. And this is what Blackstone says (Book 14, Chapter Five) - here I quote in English: "...In England...the law of in its full extent by the common law, and is held to be a part of the law of the land. And those Acts of Parliament which have from time to time been made to enforce this universal law... are not to be considered as introductive to any new rule but merely as declaratory of the old fundamental constitutions of the kingdom without which it must cease to be part of the civilized world'."
Presiding Judge: What page is this?

Attorney General: This is on page 17.

This is the end of the quotation from "Blackstone." And the late Justice Heshin continues:

"This is the position also in other countries, such as the United States of America, France, Belgium and Switzerland where the usages of international law have been recognized to be part of the national law, even though some of them uphold the principle of the territorial jurisdiction of their own Courts."
Presiding Judge: Was this the judgment of the Court, or was it the opinion of Justice Heshin?

Attorney General: This was the majority opinion - Judge Witkon concurred with Justice Heshin, while Justice Goitein gave a dissenting judgment.

I quote from page 17:

"But in addition to everything that has been said, it seems to me that even if we cannot be assisted by Article 46 of the Order-in-Council and by Article 1 of the aforementioned English Act of 1849, we still have to decide that the said principle has become part of the laws of this country by virtue of Israel being a sovereign country and standing on its own authority. The Declaration of Independence procured for the new State access to international laws and practices which all states enjoy by virtue of their sovereignty, and enriched its legal system by the accepted principles of the Law of Nations. We are no longer obliged to obtain these principles second-hand, through subsidiary channels which have been specially provided, since today we are able by virtue of the State of Israel's being a member of the family of nations, to draw

003-03 directly from the sources by virtue of the final passage of Section 11 of the Administration and Law Ordinance, or even without this paragraph and without any connection with it. The State of Israel sends its fleet of ships to the high seas under its own flag. The people who are on board these ships are protected by its flag and enjoy its law and its jurisdiction. For these reasons, I do not see anything to prevent the Courts from interpreting their competence so as to include all persons found on these ships and to try them according to its laws, just as any other civilized country would do in regard to ships flying its flag and in regard to the people aboard them."

Parenthetically, I would note that in countries of the common law the principle has nevertheless been laid down that where a contradiction can been seen to exist between the provisions of domestic law and the provisions of international law, the domestic law would prevail. I say this only to complete the argument, since in my view there is no conflict, and therefore there is no necessity at all to include this principle. But if there were such - then the domestic law would prevail.

And this is what Dicey says, in his tenth edition.

Presiding Judge: What is the book?

Attorney General: Dicey - The Law of the Constitution - on page 62.

Presiding Judge: Which edition?

Attorney General: The tenth, Sir.

"Acts of Parliament, it has been asserted, are invalid if they are opposed to the principles of morality or to the doctrines of international law. Parliament, it is in effect asserted, cannot make law opposed to the dictates of private and public morality...There is no legal basis for the theory that judges, as exponents of morality may overrule Acts of Parliament. Language which might seem to imply this amounts in reality to nothing more than the assertion that the judges, when attempting to ascertain what is the meaning to be affixed to an Act of Parliament, will presume that Parliament did not intend to violate the ordinary rules of morality, or the principles of international law, and will therefore, whenever possible, give such an interpretation to a statutory enactment as may be consistent with the doctrines both of private and of international morality. A modern judge would never listen to a barrister who argued that an Act of Parliament was invalid because it was immoral, or because it went beyond the limits of Parliamentary authority."
Judge Halevi: In English law, and in the common law - and therefore also in Israeli law, this principle such as that of "unrichtiges Recht" to which you previously referred, is not accepted.

Attorney General: No Sir, it is not accepted. But I referred to it in another context altogether. If I did not explain myself properly, perhaps I should do so again. My intention, in regard to "unrichtiges Recht" was that it was essential for civilized peoples to fill that void, to bridge the Nazi anarchy. The answer of international law to the state of anarchy was: what you at the time called laws, were not laws but arbitrary acts. And therefore, from the year 1945 onwards, we are going to fill retroactively that vacuum which you created when you brought the principles of law down from their elevated status as signposts for all mankind and decreed arbitrariness as the sole principle for your actions. And international law says: A law which is an "unrichtiges Recht" is no law and must not be taken into account when international law comes to fill the vacuum which was created by arbitrary and atrocious acts.

In Criminal Appeal 5/51, Steinberg versus the Attorney General, Piskei Din Volume 5, page 1061, at the foot of page 1065, Justice Sussman observes as follows:

"It is a well-known rule that in interpreting a law the Court will endeavour as far as possible to avoid a clash with national law and the rules of international law which are binding on the State, but this is only one of the laws of interpretation. For when we deal not with the common law but with the statute law and where the intention of the legislator becomes clear from the wording of that law, in such a case the will of the legislator must be implemented without taking into account a conflict between that law and international law. Possibly international law imposes a certain obligation upon the State, but seeing that this law does not deal with the relations between the State and its citizens, but with its relations with other States, this obligation is imposed only for the benefit of another State or States, whereas the citizen himself has no right to demand that it be carried out. Moreover the courts of this country derive their judicial powers from the laws of the State and not from the system of international law. Consequently when a person is called upon to account for a breach of one of the laws of the State, he cannot find any defence in international law, since the courts only pronounce judgment on relations between the individual and the State according to the local law."
But, Your Honours, I do not call upon you to rely on this rule, seeing that there is no need for it. The Nazis and Nazi Collaborators (Punishment) Law is nothing more than a repetition of an Israeli version, in the light of the special tragic version concerning the Jewish people, of those principles which are firmly entrenched in general international law.

In Criminal Appeal 22/52, Honigman versus Attorney General, the late Justice Heshin discussed this law we are dealing with. The report is to be found in Piskei Din Volume 7 on page 296, and I read from page 303 opposite the letter e:

"The Law we are examining" is intended to enable the punishment in Israel of Nazis, their associates and their collaborators, for the murder, destruction and exploitation of the Jewish people, and for their crimes against humanity in general."
In these terms the bill was described and we quote these words from that source, not as a binding legal authority, but in order to explain the background to the legislation. And, indeed, this Law is absolutely different in its characteristics, its legal principles and the moral principles of its fundamental terms, and its spirit, from all the usual enactments to be found in the criminal statute book. This Law is retroactive and extraterritorial, and is intended - inter alia - to serve as an authority for punishing crimes which are not defined in the criminal law of Israel, since they are the special outcome of the Nazi reign of persecution, such as the handing over of a persecuted person to a hostile regime.

Its severity is greater than that of other laws. It provides the Courts with the authority to try, for a second time in Israel, persons who have already been brought to trial once abroad, for the crimes mentioned in the Law, if the full severity of the punishment had not been meted out to them. The normal rules of prescription have been completely abolished in connection with the grave crimes mentioned in this Law, and in regard to the other, lighter offences, the usual period of prescription has been prolonged. And even these lighter offences have been excluded from the scope of general pardon. Special authority is given to the Courts to deviate from the rules of evidence. What is the reason for all these severe provisions? There is only one answer to this: the circumstances in which these crimes were perpetrated are extraordinary, and hence it is right and proper that the Law, its contents, the manner of applying it, the objective which the state seeks to achieve by means thereof, all these, too, should be exceptional.

In his argument yesterday, Defence Counsel analysed what seemed to him to be the objectives of our law, and if I understand him correctly he argued that if there were room for talking about expiation on the part of the Accused, it would be proper to try him in Germany or some other country. He added that the Accused as an individual could not expiate the acts of his State which sent him to commit the crimes. The Accused, so Defence Counsel contends, was dragged, without any guilt on his part, into the criminal network. This last argument would require proof, and it is still premature to discuss it. For my part I can already say at this point that we contend that Adolf Eichmann was not merely a small cog in the machine, and we shall attempt to prove to the Court that he initiated, planned, organized and carried out the extermination of the Jewish people in Europe. I agree that this is a factual argument which at the present moment is a matter of dispute between Defence Counsel and myself. I have not yet proved this, but he, too, has not yet substantiated his argument, and consequently the Court cannot rely on this factual argument for purposes of this preliminary discussion.

As for expiation: there does not stand on trial before you a repentant transgressor on his way to Canossa in order to atone for moral offences. There stands on trial a man who is accused of having committed crimes, and his individual responsibility for his crimes was recognized in principle when other war criminals were sentenced at Nuremberg and in other countries of the world. In the judgment of the International Military Tribunal - I read this time from Volume 22 of the Blue Series in the English edition -

Presiding Judge: Why are you not consistent in this matter and do not quote from the first volume?

Attorney General: This secret I can explain easily - the books were left during the night in this locked courtroom and when I had to prepare my authorities for this morning, I needed this judgment for my purpose, and it is found in both volumes.

I quote from page 465:

"It was submitted that international law is concerned with the actions of sovereign states and provides no punishment for individuals; and further, that where the act in question is an act of state, those who carry it out are not personally responsible, but are protected by the doctrine of the sovereignty of the state. In the opinion of the Tribunal, both these submissions must be rejected. That international law imposes duties and liabilities upon individuals as well as upon states has long been recognized. In the recent case of Ex parte Quirin (1942-317, US-1), before the Supreme Court of the United States, persons were charged during the War with landing in the United States for purposes of spying and sabotage. The late Chief Justice Stone, speaking for the Court, said: 'From the very beginning of its history this Court has applied the law of war as including that part of the law of nations which prescribes for the conduct of war, the status, rights and duties of enemy nations as well as enemy individuals.'
He went on to give a list of cases tried by the courts, where individual offenders were charged with offences against the laws of nations, and particularly the laws of war. Many other authorities could be cited, but enough has been said to show that individuals can be punished for violations of international law. Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.

The principle of international law which, under certain circumstances, protects the representatives of a state, cannot be applied to acts which are condemned as criminal by international law. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings. Article 7 of the Charter expressly declares: 'The official position of defendants, whether as heads of state, or responsible officials in government departments, shall not be considered as freeing them from responsibility, or mitigating punishment'." And here follows an important paragraph:

"On the other hand the very essence of the Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual state. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state, if the state in authorizing action moves outside its competence under international law."
And on page 496 and subsequent pages, where the International Military Tribunal was dealing with crimes against humanity and with war crimes, the Court will find the following extract (I read from page 407 - the Chapter begins on page 496):
"The Tribunal is of course bound by the Charter, in the definition which it gives both to War Crimes and Crimes against Humanity. With respect to War Crimes, however, as had already been pointed out, the crimes defined by Article 6, section (b) of the Charter were already recognized as War Crimes under international law. They were covered by Articles 46, 50, 52 and 56 of the Hague Convention of 1907, and Articles 2, 3, 4, 46 and 51 of the Geneva Convention of 1929. That violations of these provisions constituted crimes for which the guilty individuals were punishable is too well settled to admit of argument."
And in the "Justice Case" (Green Series Vol. 3 on page 968) it says: "The IMT Charter, the IMT judgment and C.C. Law 10 are merely 'great new cases in the book of international law.' They constitute authoritative recognition of principles of individual penal responsibility in international affairs..." There was another statement in Defence Counsel's speech regarding expiation which calls for a reply from me. If I understood him correctly, he said: Germany has in fact already atoned. You have received reparations. What more do you want? I want to stress with all the emphasis at my command that the Reparations Agreement did not seek to atone, did not seek to cause us to forgive or to forget. For such crimes there is no expiation, there is no forgiveness or forgetting. We can only hope and believe that the new generation will be different from the fathers and that future generations will arise and that the sons will not pay for the sins of their forbears. But for those who perpetrated the crimes - there can be no pardon, no forgiveness, no atonement for them. The Jewish people remembers for over two thousand years someone who once tried to commit genocide, possibly for the first time in history - Haman the Agagite. It will never forget the one who succeeded partly, in committing this crime.

Presiding Judge: How much time, in your estimation, do you still need for argument?

Attorney General: I do not want to commit myself, but in order to give the Court some idea, I think I shall need all day.

Presiding Judge: All day? And do you think that will be sufficient?

Attorney General: Perhaps, Sir, seeing that we shall not be sitting tomorrow, I shall possibly need another hour only, on Friday morning in order to reply to some of the written arguments after we have managed to examine them.

Presiding Judge: Apart from this - all day today?

Attorney General: Yes.

Presiding Judge: We shall adjourn now for a quarter of an hour or twenty minutes.

Presiding Judge: Are the witnesses Tohar and Shimoni in or near the courtroom? If so, please call them.

[The witnesses Tohar and Shimoni enter the Court.]

Presiding Judge: Mr. Tohar and Mr. Shimoni, I want to inform you that you are free until Monday morning of next week. From Monday onwards, you will be at the Court's disposal upon telephonic advice to be given to you three hours in advance. Please give your telephone numbers to the Clerk of the Court. Meanwhile you are discharged.

Attorney General: I wish only to add to my argument of this morning: If, according to the Statute of the International Court at the Hague (the same section 38 which I quoted) the writings of well-known publicists also have validity, then how much more so should we regard a recommendation of the International Law Commission of the United Nations, composed as it was of the most outstanding jurists representing the civilized peoples, as part of international law? And if this matter has not yet been converted into the text of the Charter or an official decision of the United Nations Assembly, at any rate one must certainly regard it as one of the sources of international law.

Defence Counsel raised two arguments in principle against our law and against the trial of Eichmann according to it. Firstly - he says - there is here a retroactive criminal application and secondly, this is an extraterritorial enactment. If I had wanted to simplify my task, I would perhaps be satisfied with a very short reply: You, the judges of Israel, have to accept the law of the State as you find it, and you are not able to declare the law to be ultra vires. This, in fact, is what Dicey lays down in the principle I read out before the adjournment. But in view of the circumstances, may I be permitted to expand somewhat on the formulation of this argument and to reply in somewhat greater detail to the oral remarks which were made and also to some of the written ones I have managed to read.

It is not my purpose to justify retroactive criminal legislation in general terms. And there is no need in this case to lay down a general rule concerning the principle "nullum crimen sine lege." By the way, we do not need to have this maxim in Latin words; it is to be found in our [Jewish] sources: "There can be no punishment unless there is a prior warning."{Gemara, Tractata Sanhedrin 56b} My contention is, and in this matter I am following the course of the general prosecution of the Nuremberg Trial, that the lex exists and is in effect, and that the legislation did not harm the principle "nullum crimen sine lege." The law was in force but they ignored it. They chose to break it - they preferred not to act according to its precepts. This still does not mean that the law was not right: and in connection with this matter the International Military Tribunal - and with the permission of the Court I shall return to the first volume of the Blue Series - on page 219 - says the following:

"It was urged on behalf of the defendants that a fundamental principle of all law - international and domestic - is that there can be no punishment of crime without a pre_existing law. "Nullum crimen sine lege, nulla poena sine lege" It was submitted that ex post facto punishment is abhorrent to the law of all civilized nations, that no sovereign power had made aggressive war a crime at the time that the alleged criminal acts were committed, that no statute had defined aggressive war, that no penalty had been fixed for its commission, and no court had been created to try and punish offenders. In the first place, it is to be observed that the maxim "05nullum crimen sine lege" is not a limitation of sovereignty, but it is in general a principle of justice. To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighbouring states without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from being unjust to punish him, it would be unjust if his wrongs were allowed to go unpunished. Occupying the positions they did in the Government of Germany, the defendants, or at least some of them must have known of the treaties signed by Germany, outlawing recourse to war for the settlement of international disputes; they must have known that they were acting in defiance of all international law when in complete deliberation they carried out their design of invasion and aggression. On this view of the case alone, it would appear that the maxim has no application to the present facts."
And so it is with us, Your Honours. The acts for which the Accused has been brought to trial are repugnant to all principles of law and morality. They are opposed to the elementary concepts of human society. And even if we suppose that the principle "nullum crimen sine lege" which is nothing more than a principle of justice, is opposed to the principle which is fundamental to the Nazi and Nazi Collaborators (Punishment) Law, or in all the other laws similar to it, in such cases where there is a clash of these principles, between the principle of law and the principle of justice, the law will prevail since there is another principle embodied in the principle of this law, no less just than "nullum crimen sine lege" - that those who commit crimes should not go unpunished.

When the legislator has to choose between the two: to infringe the principle of nullum crimen sine lege and to enact a law which will subject offenders to the criminal law ex post facto, and between the possibility that unprecedented criminal acts will go entirely unpunished and the possibility of not being able to try them in any Court, in the event of a conflict between these two principles, the principle "let justice be done" shall prevail.

I shall add another quotation from the report of the judgment in the Blue Series on pages 223 and 227: -

"The Tribunal proposes, therefore, to deal quite generally with the question of War Crimes and to refer to them later when examining the responsibility of the individual defendants in relation to them. Prisoners of war were ill_treated and tortured and murdered, not only in defiance of the well-established rules of international law, but in complete disregard of the elementary dictates of humanity. Civilian populations in occupied territories suffered the same fate."
What should we do if we are seeking to do justice in the abstract - despite my argument that the Court should always deal with the matter in the concrete and not in the abstract? Let us follow Defence Counsel and examine the Knesset's right to enact such a law, or the right of the Occupying Powers to enact the Law of Control No. 10 - for this, in fact, is what Defence Counsel is attacking. What should have been done? Should it have been said - seeing that there is the principle of nullum crimen sine lege- we have to shut our eyes and pass over it. Silence without any possibility of bringing to trial and inflicting punishment for all that our eyes have seen? Or should it have been said: Very well, there is the principle of nullum crimen sine lege, but there is an even more important principle: to do justice. I contend that the second principle ought to prevail, and it has in fact prevailed. It has prevailed in the dictate of international law and it has prevailed in the legislation of the Israel Knesset.

In case No. 9 of the Subsequent Trials, known as the "Case of the Einsatzgruppen" over which the President of the Appeals Court of the State of Pennsylvania, Judge Musmanno, presided, the following remarks were made, in the fourth volume of the Green Series on pages 458-459:

"Defence counsel have particularly thrust at Control Council Law No. 10 with Latin maxim 'nullum crimen sine lege, nulla poena sine lege.' It is indeed fundamental in every system of civilized jurisprudence that no one may be punished for an act which was not prohibited at the time of its commission. But it must be understood that the lex referred to is not restricted to statutory law. Law does, in fact come into being as the result of formal written enactment and thus we have codes, treaties, conventions and the like, but it may also develop effectively through custom and usage and through the application of common law. The latter methods are not less binding than the former... "Of course some fields of international law have been codified to a substantial degree and one such subject is the law of land warfare which includes the law of belligerent occupation because belligerent occupation is incidental to warfare... "But the jurisdiction of this Tribunal over the subject matter before it does not depend alone on this specific pronouncement of international law. As already indicated, all nations have held themselves bound to the rules or laws of war which came into being through common recognition and acknowledgement. Without exception these rules universally condemn the wanton killing of noncombatants. In the main, the defendants in this case are charged with murder. Certainly no one can claim with the slightest pretense at reasoning that there is any taint of ex post factoism in the law of murder."
And in the Case of the Judges - Nazi judges - in the same Volume 3 which I have already referred to, the following remarks appear on pages 974-975:-
"The defendants claim protection under the principle 'nullum crimen sine lege, though they withheld from others the benefit of that rule during the Hitler regime. Obviously the principle in question constitutes no limitation upon the power or right of the Tribunal to punish acts which can properly be held to have been violations of international law when committed... "Under written constitution the ex post facto rule condemns statutes which define as criminal acts committed before the law was passed, but the ex post facto rule cannot apply in the international field as it does under constitutional mandate in the domestic field. Even in the domestic field the prohibition of the rule does not apply to the decision of common law courts, though the question at issue be novel. International law is not the product of statute for the simple reason that there is as yet no world authority empowered to enact statutes of universal application. International law is the product of multipartite treaties, conventions, judicial decisions and customs which have received international acceptance or acquiescence. It would be sheer absurdity to suggest that the ex post facto rule, as known to constitutional states, could be applied to a treaty, a custom or a common law decision of an international tribunal or to the international acquiescence which follows the event. To have attempted to apply the ex post facto principle to judical decisions of common international law would have been to strangle that law at birth. As applied in the field of international law, the principle 'nullem crimen sine lege' received its true interpretation in the opinion of the IMT in the case versus Goering et al..."
To the same effect we quote the distinguished statesman and international authority, Henry L. Stimson:
"A mistaken appeal to this principle has been the cause of much confusion about the Nuremberg trial. It is argued that parts of the Tribunal's Charter, written in 1945, make crimes out of what before were activities beyond the scope of national and international law. Were this an exact statement of the situation, we might well be concerned, but it is not. It rests on a misconception of the whole nature of the law of nations. International law is not a body of authoritative codes and statutes; it is the gradual expression, case by case, of the moral judgments of the civilized world. As such, it corresponds precisely to the common law of Anglo-American tradition. We can understand the law of Nuremberg only if we see it for what it is - a great new case in the books of international law. A look at the charges will show what I mean.

"It was the Nazi confidence that we would never chase and catch them, and not a misunderstanding of our opinion of them, that led them to commit their crimes. Our offence was thus that of the man who passed by on the other side. That we have finally recognized our negligence and named the criminals for what they are is a piece of righteousness too long delayed by fear.'"{"The Nuremberg Trial: Landmark in Law" Foreign Affairs1, January 1947, pp.180, 184.}

This question of retroactive criminal legislation also arose in Israel in Criminal Appeal 1/48, Sylvester versus the Attorney General: which appears in Pesakim 1 page 513, in which the Court refers to the English decision in the case of Phillips versus Eyre. I quote from paragraph 28:
"The Judgment in Phillips versus Eyre, and the judgments referred therein affirm in my opinion the legitimacy of the laws, the validity of which was challenged by defence counsel, and certainly do not bring forward any arguments against their validity.

What Judge Willis says in his judgment on page 27 can be summed up in the two following principles: (a) although retroactive legislation it not, generally speaking desirable, it must not be pronounced to be automatically and of necessity unjust. There are reasons - and these involve the security of the state - which can justify retroactive legislation, on the grounds that normal laws being enacted under normal circumstances and the needs of society cannot meet all the requirements of justice. (b) The decision on the question as to whether the circumstances warrant retroactive legislation, is in the hands of Parliament and not in those of the Courts; it is not their function to examine the necessity for such legislation."

I believe that this summing-up provides the answer to Defence Counsel's argument.

Further in this matter may I be permitted to refer to the article of Sheldon Gluck in the Harvard Review Vol. 59, Page 396. The title of the article is "The Nuremberg Trial and Aggressive War" and I want to quote two extracts - beginning at page 443:-

"That which Hitler and his clique did not know was that while they would be given every reasonable facility for defence, they would not be permitted to escape personal liability by hiding their flagrant deeds behind the protective mantle of the convenient "State." Is their ignorance of that suddenly to transform them into innocents whose prosecution is frightfully unjust and fatally 'illegal,' and obnoxiously 'ex post facto' because it involves something of which they had no prior notice?"
And on page 428:
"It is perfectly obvious that the application of a universal principle of non-responsibility of a State's agents could easily render the entire body of international law a dead letter. For any group of criminally minded persons comprising the temporary Government that has seized power in a State could readily arrange to declare all of its violations of the law of nations - either in initiating an illegal war or in conducting it contrary to the laws and customs of recognized legitimate warfare - to be 'acts of State.' Thus all its treaty obligations and international law generally could be rendered nugatory; and thus the least law-abiding member of the Family of Nations could always have a weapon with which to emasculate the very law of nations itself. The result would be that the most lawless and unscrupulous leaders and agents of a State could never be brought to account. If such a State won an aggressive war, the politicians, militarists and industrialists who had planned, ordered or executed even the most flagrant atrocities and cynical breaches of international and municipal law, would of course not be subject themselves to prosecution in their own courts. And if they happened to lose - as Germany and its chronic militarists happened in our day twice to do - they would again be assured of personal immunity through application of an irrational technicality. Only the State would have to pay reparations; and that would mean that either the war-impoverished losing State would gradually wriggle out of its obligation and even transform it into a loss to the people of the victor State (as was true in Germany vis-a-vis the United States after the First World War); or many ordinary citizens of the losing State, who had nothing to do with initiating or conducting an unjust and ruthless war, would be penalized through heavy taxation to meet the fine imposed on their nation. The scoundrels at the top, who had actually plotted and carried out the breaches of international and municipal law, would conveniently escape with their lives and fortunes and conserve their strength for still another try at world domination - a process in which they have nothing to lose and everything to gain."
To sum up, therefore, this legislation which proclaimed the horrible acts of the Nazis as crimes and gave them their correct appellation, is not retroactive legislation. It only appears to be so. It declares in the language of a law what was always law. But even if we were to accept the contention - for the sake of argument only - that this legislation is retroactive, it is nevertheless just. And the justice embodied therein is stronger, more fundamental and more convincing than the justice entrenched in the principle "nullum crimen sine lege."

The Court will find a detailed analysis of this reasoning in another collection of judgments of war criminals. This time I refer to the well-known British collection entitled Law Reports of Trials of War Criminals. This one is in 15 volumes, but not 15 books - merely a few thin volumes, some of them bound together. The last volume contains books 13, 14 and 15. In this volume the Court will find an analysis of the precept "nullum crimen sine lege" in all the various trials of the IMT cases - Hostages, Flick, I. G. Farben, High Command and the Einsatzgruppen.

Presiding Judge: Is this a judgment?

Attorney General: No - it is an analysis by the editor of the collection in which he reviews, at the end, the main defence arguments that were submitted in the various trials. The Court will also find there what was said by the Dutch Court of Cassation in the trial of the war criminal Rauter in the same context. And I shall refer the Court, without reading it, to what is said on pages 166-170. I shall only read the concluding paragraph of the summing-up on page 170:

"The view of the problem most commonly adopted seems, however, to be that since the rule against the enforcement of ex post facto law is in essence a principle of justice it cannot be applied in war crime trials where the ends of justice would be violated by its application."
Accordingly I ask you not to accept the submission of Defence Counsel that our law is contrary to the principles of international law. And I ask you to reject the argument that this Court has no authority to judge because the indictment charges the Accused in a way which is in violation of the law. The contrary is true: the law gives expression to the lofty principles of meting out justice.

The second argument of the defence sounds something like this: The Accused did not commit crimes on your soil, did not harm your State or its citizens, because you were not in existence at the time when he perpetrated those acts which you ascribe to him: therefore you do not have the right to try him - for two reasons: Firstly because he was brought here forcibly, and secondly because your law which purports to be an extraterritorial law is contrary on this point to the principles of international law.

On the first point I have already spoken, yesterday, and I only want clearly to differentiate between two different arguments which - it seems to me - were mixed up in the submission of Defence Counsel. There is no connection between the issue of bringing a man within the jurisdiction of a country by force, and the extraterritorial issue. If we assume for a moment that our law is void because it is exterritorial...

Presiding Judge: Should this not be extraterritorial?

Attorney General: It can be either way. In American literature they say exterritorial, while others say extraterritorial. But if the Court prefers extraterritorial;...

Presiding Judge: No, do as you prefer.

Attorney General: If our law is in fact invalid, then even if the Accused had come here of his own free will and not by force, it would not be possible to try him, if the law is not a law. And if his being brought here forcibly negates the trial and the jurisdiction, it invalidates the jurisdiction in respect of all offences, including laws which are not exterritorial, even normal laws. Therefore it is necessary to differentiate between the two arguments and there is no inherent connection between them. Defence Counsel linked them together, and I ask to deal with each one separately, since each of them points to different legal concepts.

Yesterday, I discussed the question of bringing a man within the jurisdiction by force and there is no need for repetition. I shall, therefore refer to the other part of the argument, which claims to invalidate our law on the grounds that it applied to acts which were not committed on the territory of Israel, at the time when the State of Israel was not yet a reality.

The principles which generate jurisdiction to deal with criminal matters were examined already before the Second World War by a number of outstanding jurists in the United States, in a research study conducted under the auspices of Harvard University. The Court will find abundant material in the report of the researchers. It is a scientific study. I shall only read a short extract therefrom, to be found in the American Journal of International Law, Volume 29 of the year 1934 - Supplement. I quote from page 445:

"An analysis of modern national codes of penal law procedure, checked against the conclusions of reliable writers and the resolutions of international conferences or learned societies, and supplemented by some exploration of the jurisprudence of national courts, discloses five general principles on which a more or less extensive penal jurisdiction is claimed by States at the present time. These five general principles are: first, the territorial principle, determining jurisdiction by reference to the place where the offence is committed; second, the nationality principle, determining jurisdiction by reference to the nationality or national character of the person committing the offence; third, the protective principle, determining jurisdiction by reference to the national interest injured by the offence; fourth, the universality principle determining jurisdiction by reference to the custody of the person committing the offence; and fifth, the passive personality principle, determining jurisdiction by reference to the nationality or national character of the person injured by the offence. Of these five principles, the first is everywhere regarded as of primary importance and of fundamental character. The second is universally accepted, though there are striking differences in the extent to which it is used in the different national systems. The third is claimed by most States, regarded with misgivings in a few, and generally ranked as the basis of an auxiliary competence. The fourth is widely, but by no means universally accepted as the basis of an auxiliary competence, except for the offence of piracy with respect to which it is the generally recognized principle of jurisdiction. The fifth, asserted in some form by a considerable number of States and contested by others, is admittedly auxiliary in character and is probably not essential for any State if the ends served are adequately provided for in other principles."
It is, therefore, not true to say that one principle only generates jurisdiction, and that is the territorial principle. There are a number of principles, some more accepted, some less, some more widely spread, some less. In 1935 the Harvard researchers had not yet experienced the [Second] World War and its crimes, and the principle which would have to be developed as a consequence thereof. But even if we deal with the territorial principles and a State's right to enact laws which have applications beyond its borders, it would appear that even before the World War principles had become accepted that were not in conformity with what Defence Counsel submitted here. The problem was discussed in greater comprehensiveness by the International Court at the Hague, in the well-known judgment in the matter of the "Lotus." The facts in the "Lotus" case and the judgment were published in the official publication of the International Court, Booklet 10 - "Affaire du 'Lotus'."

Presiding Judge: Booklet 10 - what series was this?

Attorney General: Publications of the Permanent Court of International Justice, Series A - No. 10. The facts are as follows (they appear on page 10): The French ship "Lotus" which was on its way to Constantinople collided with the Turkish ship "Boz-Kourt" on the open seas. The fact that this was on the high seas is clear from page 5 where it is stated:

"On the high seas between the French steamer Lotus and the Turkish steamer Boz-Kourt, a collision occurred on August 2nd, 1926..." The Turkish ship was cut into two and eight Turkish subjects who were on board, were drowned. When Mr. Demons who was the officer of the watch of the ship "Lotus" at the time of the collision reached Constantinople and disembarked from his ship, he was arrested by the Turkish authorities and brought to trial for the offence of harming Turkish citizens. He argued that the Turkish extraterritorial law, which laid down that the infliction of injury upon a Turkish subject anywhere in the world was a criminal offence under Turkish law, was not valid, and accordingly, as he argued, the Turkish Court did not have jurisdiction to deal with his case. The Court did not accept his argument, and after a dispute had arisen between France, Demons' country, and Turkey which was demanding jurisdiction for herself, the two countries agreed to refer the question of the legitimacy of the Turkish law to the decision of the International Court at the Hague."
I quote from page 12 (in English)
"The violation, if any, of the principles of international law would have consisted in the taking of criminal proceedings against Lieutenant Demons. It is not therefore a question relating to any particular step in these proceedings - such as his being put to trial, his arrest, his detention pending trial or the judgment given by the Criminal Court of Stamboul - but the very fact of the Turkish Courts exercising criminal jurisdiction. That is why the arguments put forward by the Parties in both phases of the proceedings relate exclusively to the question whether Turkey has or has not, according to the principles of international law, jurisdiction to prosecute in this case. The Parties agree that the Court has not to consider whether the prosecution was in conformity with Turkish law; it did not, therefore, consider whether, apart from the actual question of jurisdiction, the provisions of Turkish law cited by Turkish authorities were really applicable in this case, or whether the manner in which the proceedings against Lieutenant Demons were conducted might constitute a denial of justice, and accordingly, a violation of international law. The discussions have borne exclusively upon the question whether criminal jurisdiction does or does not exist in this case."
And at the foot of page 18:-
"Now the first and foremost restriction imposed by international law upon a State is that - failing the existence of a permissive rule to the contrary - it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial, it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention. "It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law. Such a view would only be tenable if international law contained a general prohibition to States to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, and if, as an exception to this general prohibition, it allowed States to do so only in certain specific cases. But this is certainly not the case under international law as it stands at present. Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable."
And consequently this was the final majority conclusion in the"Lotus" case on page 32:
"For THESE REASONS the Court, having heard both parties, gives, by the President's casting vote - the votes being equally divided - judgment to the effect: (1) that, following the collision which occurred on August 2nd, 1926, on the high seas between the French steamship Lotus and the Turkish steamship Boz-Kourt, and upon the arrival of the French ship at Stamboul, and in consequence of the loss of the Boz-Kourt having involved the death of eight Turkish nationals, Turkey, by instituting criminal proceedings in pursuance of Turkish law against Lieutenant Demons, officer of the watch on board of the Lotus at the time of the collision, has not acted in conflict with the principles of international law..."
Judge Halevi: I have a question to the Attorney General. Did the majority in the International Court accept the general principles, or did the majority only decide in fact that Turkey had not violated international law, and was this majority made up of judges holding conflicting views regarding the general principles?

Attorney General: It was so, Your Honour. But I will submit immediately that not only the views of the majority have to be examined, but also those of the minority; and I want to ask myself: if the "Lotus" issue had been discussed not when it was discussed but today, what would those same minority judges say - the Dutch, for example, or the English - in view of the developments in their policies on the territorial question which occurred meanwhile in their countries.

The Dutch judge said that the criminal law cannot apply beyond the jurisdiction of the country which enacted it, and he was firm on this principle, on that of his country, the territorial principle. But the law develops and now let us see what Holland herself did in the meantime. Let us look at the International Law Report of the year 1951, page 206, edited by Lauterpacht:

"The defendant, a woman of Belgian nationality and domiciled in Belgium, was prosecuted in the Special Police Court of Breda on November 2, 1950, for having acted in Belgium as an accessory to offences committed by Netherland subjects against the Dutch Currency Decree...The conviction was upheld by the Court of Appeal at s'Hertogenbosch on March 7, 1951."
The defendant appealed further.
"Held (by the Supreme Court): that the accused was rightly convicted. The acts committed by the accused did not come under any of the general principles of applicability of Netherlands criminal law as laid down in Book 1, Section 1, of the Netherlands Penal Code. These acts could therefore only fall under the scope of Dutch criminal law in virtue of the special provisions contained in Article 31 of the Emergency Decree of 1945 on Currency Restrictions. Those provisions were directed not only against Netherlands subjects who committed currency offences in a foreign country, but also to foreign nationals abroad who were accessories to such offences."
The Dutch law, in this age of aircraft - I could add possibly today, in the age of jets and rockets - says: It is impossible to stand firm any longer on the territorial principle. We must depart from these limitations. There are crimes which by their very nature are committed between countries. True, in a relatively primitive period, at the beginning the law adhered to this principle. Here is the crime, here are your judges, here are your witnesses, here they know you - here you will be judged. But today, with the development of the world, and the development of the principle of international law, there is no longer this faithfulness to the territorial principle, and I doubt whether that same British judge, Lord Finlay, who also dissented from the majority opinion in "Lotus," would today give the judgment that he gave then.

Presiding Judge: Why, Sir, are you connecting this with the most sophisticated means of transportation - if we may presume that rockets are means of transportation?

Attorney General: Rockets are simply a sign of the times. It is a fact that the world has been converted into one world, and in consequence of easy opportunities to move from place to place today, to commit crimes that cross boundaries, the law has had to adjust itself to a new framework. Let us take the well-known instance of the judgment in the case of Joyce who was known by the popular name of Lord Haw_Haw (Joyce v. Director of Police Prosecutions, 1946 Appeals cases - A.C. 347). What did Joyce do? Joyce served the Nazi Germans by broadcasts directed to England. He did not set foot on English soil while he committed his crimes. His words travelled over the ether waves. His insidious and subversive propaganda was the aspect found to be treasonable. That was what brought him to trial. I am not dealing now with the special aspects of the Joyce case, his loss of British nationality, his own surrender of British nationality and so on. This does not affect us. But what does matter to me is this territorial principle. When the matter was argued in Court, Joyce said: "What do you want of me? You are the country attached more than others to the territorial principle. How can you judge me? I did not step on English soil for one moment at the time I committed those acts which you now say are treasonable." What did the Court say? What did the Lord Chancellor, Lord Jowitt say? On page 372 he says:

"No principle of comity demands that a state should ignore the crime of treason committed against it outside its territory. On the contrary a proper regard for its own security requires that all those who commit that crime, whether they commit it within or without the realm should be amenable to its law."
And Lord Jowitt simply ignores the territorial principle and says:
"It does not matter where you committed the offence. The security of the state makes it essential that legislation should embrace the whole world, and wherever you commit this act - when you are caught by us, you will pay the penalty for it."
This development of the law in this case is even more noteworthy when we compare to this the authority on which Lord Finlay, the English judge in the "Lotus" case relied. He relied on the statement appearing in the third edition of International Law by Oppenheim (the book was published in 1920). In the first volume, Peace, the author says (on page 240):
"The question is, therefore, whether States have a right to jurisdiction over acts of foreigners committed in foreign countries, and whether the home State of such an alien has a duty to acquiesce in the latter's punishment in case he comes into the power of these States. The question which is controversial, ought to be answered in the negative. For at the time such criminal acts are committed the perpetrators are neither under the territorial not under the personal supremacy of the States concerned. And a State can only require respect for its laws from such aliens as are permanently or transiently within its territory. No right for a State to extend its jurisdiction over acts of foreigners committed in foreign countries can be said to have grown up according to the Law of Nations."
On this, Lord Finlay based his dissenting opinion and said: "Turkey had no right to try Demons." But let us take that same book International Law by Oppenheim, the first volume Peace (published by Lauterpacht) in the eighth edition of the year 1955 - the same section in the same paragraph 147, on page 33. The beginning is the same but the continuation is different, and this is what he says:
"The question is, therefore, whether States have a right to exercise jurisdiction over acts of foreigners committed in foreign countries, and whether the home State of such an alien has a duty to acquiesce in the latter's punishment in case he comes into the power of those States."
The same sentence, so far.
"Some answer this question in the negative."
The Court should please note:
"They assert that at the time such criminal acts are committed the perpetrators are neither under the territorial nor under the personal supremacy of the State concerned, and that a State can only require respect for its laws from such aliens as are permanently or transiently within its territory. This is probably the accurate view with regard to some cases. But it is not a view which, consistently with the practice of States and with common sense, can be rigidly adopted in all cases."
If Lord Finlay had to deal today with the "Lotus" case and wanted to be guided by Oppenheim's classic work, he would at least have to consent with the opinion of the President and the other judges.

Presiding Judge: I presume the eighth edition quotes the "Lotus" case?

Attorney General: Yes. Since international law continues to develop, and this is its only hope. We should, therefore, not be surprised when we read the article, referred to by the Court, by Professor Lauterpacht who was the editor of the latter edition of Oppenheim, in his article in the Cambridge Law Journal of the year 1947, Volume 9, an article entitled "Allegiance, Diplomatic Protection and Criminal Jurisdiction over Aliens."

The article begins on page 330, and I read on page 345:

"There is international authority - in the Judgment of the Permanent Court of International Justice in the Lotus Case - in support of the extension, by reference to the place in effect, of the territorial principle. In that case the Court accepted as a valid proposition of law that 'it is certain that the courts of many countries, even of countries which have given their criminal legislation a strictly territorial character, interpret criminal law in the sense that offences, the authors of which at the moment of commission are in the territory of another State, are nevertheless to be regarded as having been committed in the national territory, if one of the constituent elements of the offence, and more especially its effects, have taken place there'."
I have emphasized the words "its effects" because I shall still have something to say on the effect, on the conclusions and the consequences of the acts against the State of Israel, of which Adolf Eichmann has been accused.

I shall conclude this portion of my argument with Lauterpacht's concluding observation, in the final words of that article, on page 348:-

"It would be in accordance with an enlightened principle of justice - a principle which has not as yet become part of the law of nations - if, in the absence of effective extradition, the courts of a State were to assume jurisdiction over common crimes, by whomsoever and wherever committed, of a heinous nature. Territoriality of jurisdiction is a rule of convenience in the sphere of the law of evidence. It is not a requirement of justice or even a necessary postulate of the sovereignty of the State."
Presiding Judge: How does the Law of Evidence enter into this matter?

Attorney General: The Law of Evidence enters here, as the problem is: Where are the witnesses and where are the judges, where are the authorities, where would it be more convenient to conduct the trial? I shall continue my argument on this point when the Court resumes its sittings. (The session terminated at 13.00)

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