Appeal Session 07-02, Eichmann Adolf

As to the ethical aspect of the principle, it may be agreed
that one’s sense of justice generally recoils from punishing
a person for an act committed by him which, at the time of
its commission, had not yet been prohibited by law, and in
respect of which he could not have known, therefore, that he
would become criminally liable. But that appraisal cannot
be deemed to apply to the odious crimes of the type
attributed to the Appellant, and all the more so when we
deal with crimes of the scope and dimensions described in
the Judgment. In such a case, the above-mentioned maxim
loses its moral value and is devoid of any ethical
foundation. One’s sense of justice must necessarily recoil
even more from not punishing one who participated in such
outrages, for he could not contend – even as it was
impossible for the Appellant successfully to argue about his
share in the implementation of the `Final Solution’ – that,
at the time of his actions, he was not aware that he was
violating deeply-rooted universal moral values. What Stone
wrote (ibid., pp. 369-370) in repudiating the relevance of
the ethical content of the principle of nulla poena to the
parallel crimes of which the major war criminals were
convicted in Nuremberg is also apposite here:

“…the ethical import of the maxim is confronted by the
countervailing ethical principles supporting the courts and
sentences. Killing, maiming, torturing and humiliating
innocent people are acts condemned by the value-judgments of
all civilized men, and punishable by every civilized
municipal legal system…. All this was known to the accused
when they acted, though they hoped, no doubt, to be
protected by the law of a victorious Nazi state from
punishment. If, then, the rules applied at Nuremberg were
not previously rules of positive international law, they
were at least rules of positive ethics accepted by civilized
men everywhere, to which the accused could properly be held
in the forum of ethics.”

Therefore, in the absence of a positive rule of
international law prohibiting criminal legislation with
retroactive effect, and in the absence also of a moral
justification for preventing the application of such
legislation to the offences which are the subject of this
Appeal, it follows that the second part of the contention of
Counsel for the Appellant – namely, that the State of Israel
was not in existence at the time of the commission of the
offences and its competence to impose punishment therefor is
limited to its own citizens – is equally unfounded. We
shall yet see in what follows that the crimes of which the
Appellant was convicted must be seen as having constituted,
since `time immemorial,’ a part of international law and
that, viewed from this aspect, the enactment of the Law of
1950 was not in any way in conflict with the maxim nulla
poena, nor did it violate the principle inherent in it.
Here we have confined ourselves to the rejection of the
`international’ submission of Counsel for the Appellant, on
the strength of the first rule, mentioned in the preceding
paragraph, which governs the relationship between local
municipal law and the provisions of international law. As
already stated, this rule postulates that the above-
mentioned principle is not deemed to be embodied in
municipal law by virtue of international law, and the
District Court therefore was not enjoined to pay heed to it.

This ground in itself is an adequate reply to the first
contention of Counsel for the Appellant.

9. The same applies to the second contention as well. It
will be recalled that according to that contention the
enactment of a criminal law applicable to an act committed
in a foreign country by a foreign national conflicts with
the principle of territorial sovereignty. But here, too, we
must hold that there is no such rule in customary
international law, and that to this day it has not won
universal international recognition. This is established by
the judgment of the Permanent Court of International Justice
in the Lotus case (P.C.I.J. Series No. 10, 1927). In that
case, the judges of the majority recognized the competence
of the State of Turkey to enact a criminal statute extending
to the negligent conduct of a French citizen while on duty
as Officer-of-the-Watch of a French ship, at the time of her
collision on the high seas – and therefore outside Turkey’s
territorial waters – with a ship flying the Turkish flag.
The collision caused the sinking of the Turkish ship and
also the death of eight of her passengers who were of
Turkish nationality. It was held in that case that the
principle of territorial sovereignty merely requires that a
state exercise its power to punish within its own borders,
not outside them; that subject to this restriction every
state may exercise a wide discretion as to the application
of its laws and the jurisdiction of its courts in respect of
acts committed outside the state; and that only insofar as
it is possible to point to a specific rule prohibiting the
exercise of this discretion – a rule agreed upon by
international treaty – is a state prevented from exercising
it. That view was based on the following two grounds: (1)
It is precisely the conception of state sovereignty which
demands the preclusion of any presumption that there is a
restriction on its independence; (2) even if it is true that
the principle of the territorial character of criminal law
is firmly established in various states, it is no less true
that in almost all such states criminal jurisdiction has
been extended, in ways that vary from state to state, so as
to embrace offences committed outside its territory.

As to the first ground, it was stated in the Judgment
(ibid., p. 18):

“Restrictions upon the independence of states cannot … be

As to the second ground, it was stated (ibid., p. 30):

“Though it is true that in all systems of law the principle
of the territorial character of criminal law is fundamental,
it is equally true that all or nearly all these systems of
law extend their action to offences committed outside the
territory of the state which adopts them, and they do so in
ways which vary from state to state. The territoriality of
criminal law, therefore, is not an absolute principle of
international law and by no means coincides with territorial

The view based on these two grounds was expressed in the
following terms (p. 18, 19):

“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 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 its territory, and if, as an
exception to their general prohibitionof another, it allowed
states to do so 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.”


“This discretion left to states by international law
explains the great variety of rules which they have been
able to adopt without objections or complaints on the part
of other states; it is in order to remedy the difficulties
resulting from such variety that efforts have been made for
many years past…to prepare conventions the effect of which
would be precisely to limit the discretion at present left
to states in this respect by international law…”

And finally:

“In these circumstances, all that can be required of a state
is that it should not overstep the limits which
international law places upon its jurisdiction; within these
limits, its title to exercise jurisdiction rests in its

It is worthy of note that in the same case the Permanent
Court of International Justice declared the criminal
jurisdiction of the State of Turkey valid on another, rather
more restricted, ground, namely, that the actual damage
caused by the negligent act of the French ship occurred in
the ship that was flying the Turkish flag. In other words,
the resultant damage which constituted an essential element
in the offence under Turkish law occurred in a place which
was deemed to be Turkish territory. Hence the principle of
territorial sovereignty was upheld (ibid., pp. 23, 25).
There are some who hold that this ground, which relates to
the special facts of the case in question, and which was
also supported in principle by the minority judge, Judge
Moore (ibid., p. 65), is the `precise’ ground that guided
the court in the above-mentioned decision (cf. Lauterpacht-
Oppenheim ibid., vol. 1, p. 334, and note 1). On the other
hand, many authorities in this field of law take the view
that it is the wide ground relied upon by the court, as set
out above, which correctly and positively reflects
international law in this matter (see articles by
Schwarzenberger in Current Legal Problems 1950, pp. 265-266;
Green, in Modern Law Review, vol. 23 (1960), p. 513; Mac-
Gibbon in the British Yearbook of International Law (1954)
pp. 184-185; W.B. Cowles in the California Law Review
(1945), vol. 33, pp. 178-181). As against these there are
international jurists who do not agree with that approach
(such as the minority judges in the Lotus case), or at least
do not view it with favour de lege ferenda (see W.W. Cook in
Logical and Legal Bases of the Conflict of Laws, p. 77).

We have no intention of dealing extensively with the above-
mentioned divided opinion, or of associating ourselves with
any one of them. Our only object in setting forth these
views, including the majority view in the Lotus case, is to
point to the fact that on the question of the jurisdiction
of a state to punish persons who are not its nationals for
acts committed beyond its borders, there is as yet no
international accord. In the words of Cook (ibid.):

“…that there is not at present any general agreement on
such rule of international law seems reasonably clear.”

Thus also Helen Silving in her article (American Journal of
International Law, vol. 55, pp. 321-322, note 45):

“The question…of the extent to which territorial
jurisdiction may deviate from territorial sovereignty has
not been uniformly answered in time or in space.”

Attention may also be drawn to the statement of Mac-Gibbon,
in his above article (ibid., p. 184):
“The difficulties of a plaintiff state in its search for a
prohibitive rule in such circumstances are not merely the
result of the unfettered independence of the defendant state
but are inherent in the unsettled state of the law which
such a situation presupposes.”

It follows that in the absence of general agreement as to
the existence of the rule of international law, upon which
Counsel for the Appellant relied, there is no escape from
the conclusion that it cannot be deemed to be embodied in
Israel municipal law, and therefore on that ground, too, his
second contention fails. We are fortified in this opinion
by the reply of the Privy Council to the contention that the
enforcement of a punitive sanction – the seizure of a boat
belonging to a foreign national – by the Mandatory
Government for an act committed outside the territorial
waters of Palestine, constituted a violation of the
principles of international law. In rejecting this
contention, the judges based themselves, inter alia, on the
following ground:

“There is room for much discussion within what limits a
state may for the purpose of enforcing its revenue or police
or sanitary law claim to exercise jurisdiction on the sea
outside its territorial water. It has not been established
that such a general agreement exists on this subject as to
satisfy the test laid down by Lord Alverstone… Their
Lordships, therefore, could not in any event conclude that
any principle of international law had been violated” (Naim
Molvan v. Attorney General for Palestine (1948 A.C. 351,

We should add that even if Counsel for the Appellant were
right in his view that international law prohibits a state
from trying a foreign national for an act committed outside
its borders, this would not avail his client in any way.
The reason for this is that, according to the theory of
international law, in the absence of an international treaty
which vests rights in an individual, that law only
recognizes the rights of a state; in other words, assuming
that there is such a prohibition in international law, the
violation of it is deemed to be a violation of the rights of
the state to which the accused belongs, and not a violation
of his own rights (vide Green in his article op. cit., ibid.
p. 512). Thus in the Molvan case the Privy Council (as an
additional reason for its decision) also found that it was
not open to the owner of the ship – for reasons which are no
concern of ours here – to claim

“the protection of any state nor could any state claim that
any principle of international law was broken by her
seizure” (ibid., p. 370).

It should be noted – and we shall yet revert to this fact
with reference to another contention of Counsel for the
Appellant – that, according to his own words, his
application to the Government of Western Germany to claim
its right to try the Appellant in Germany, was refused.

10. We have thus far stated our reasons for dismissing the
first two contentions of Counsel for the Appellant on the
strength of the rules that determine the relationship
between Israel municipal law and international law. Our
principal object was to make it clear – and this is a
negative approach that there was no prohibition whatever by
international law of the enactment of the Law of 1950,
either because it created ex post facto offences or because
such offences are of an extra-territorial character.
However, we too, like the District Court, do not content
ourselves with this solution, but have undertaken the task
of showing that these contentions are unjustifiable also
from a positive approach, namely that, when enacting the Law
in question, the Knesset only sought to apply the principles
of international law and to realize its objectives. The two
propositions on which we propose to base ourselves will
therefore be as follows:

(1) The crimes created by the Law and of which the Appellant
was convicted must be deemed today to have always borne the
stamp of international crimes, banned by international law
and entailing individual criminal liability;

(2) It is the particular universal character of these crimes
that vests in each state the power to try and punish anyone
who assisted in their commission. But before we
substantiate these propositions, and in order to lighten our
task on this point, we must make a few observations on the
four categories of the offences in question, and especially
on the inter-relation between them.

The definitions in the Law of these offences have been
clearly explained by the District Court in paragraph 16 of
its Judgment. It was there explained in the light of a
detailed comparative analysis that the sources of these
definitions are to be found in international documents that
define the corresponding crimes (`Genocide’ – corresponding
to a `crime against the Jewish People’ – in the Convention
adopted by the United Nations Assembly on 9.12.1948; `Crime
against Humanity’ and `War Crime’ – in the Nuremberg
Tribunal Charter of 8.8.45, and also in Law No. 10 of the
Control Commission of Germany of 20.12.45; the local offence
of `Membership of a Hostile Organization’ was defined by
reference to the pronouncement on `Hostile Organizations,’
embodied in the Judgment of the above-mentioned Tribunal).
We do not intend to repeat the explanatory and comparative
observations made there, but only to make it clear that the
local category of a `Crime against Humanity’ – which
includes the murder, extermination, starving and deportation
of a civilian population, on the one hand, and the
persecution on national, racial, religious or political
grounds on the other – may be seen as extending also to the
three other categories, as these were proved in the
proceedings in this case.

(1) Thus, the category of `Crime against the Jewish People’
is, as held by the District Court in paragraph 26 of its
Judgment, nothing but “the gravest type of crime against
humanity.” It is true that there are certain differences
between them as, for example, in the case of the first
offence, which requires a specific criminal intent. But
these are not differences material to our case.

(2) The category of a `War Crime’ comprises, in essence, the
acts which are prohibited by the laws and customs of war.
This category, therefore, only covers acts committed in time
of war, while the category of a `Crime against Humanity’
also comprises – according to the simple meaning of the
definition in the Law – inhuman acts that were committed
during the Nazi period that preceded the outbreak of the War
(1.9.1939). We attach no practical importance to this
distinction, even as we attach no such importance to the
finding of the Nuremberg Tribunal that for the purpose of a
conviction for the offence of a `Crime against Humanity’ as
defined in Article 6 (c) of the Charter, it was necessary to
prove that it was committed in connection with one of the
two other offences therein defined (a `Crime against Peace’
or a `War Crime’). The reason for our disregard of these
distinctions is that, as emerges from the Judgment of the
District Court, the outrages attributed to the Appellant in
the Counts on which he was convicted were perpetrated, for
the most part, during the War and in connection with the
War. It will be noted – and the Court has dwelt on this
fact in paragraph 29 of its Judgment – that, according to
the Judgment of the Nuremberg Tribunal, Hitler’s invasion of
Austria also constitutes `crimes within the jurisdiction of
the Court,’ in the sense of Article 6 (c) of the Charter –
in other words, a `Crime against Peace’ (see also the
article by Egon Schwelb on “Crimes against Humanity” in the
British Yearbook of International Law (1946) pp. 189-205).
There is yet another distinction between the two types of
crimes: While the acts comprised in the `Crime against
Humanity’ are limited to acts of murder etc. that were
perpetrated among the civilian population, this limitation
does not necessarily apply also to the acts comprised in the
`War Crimes’ category (ibid., p. 190). On the other hand, it
is clear that many of the acts included in the one category
overlap those in the other category, even though it is not
imperative that they should all be identical (ibid., pp.
188, 191).

Last-Modified: 1999/06/15