10. The first contention of Counsel that Israel Law is in
conflict with international law, and that therefore it
cannot vest jurisdiction in this Court, raises the
preliminary question as to the validity of international law
in Israel and as to whether, in the event of a conflict
between it and the laws of the land, it is to be preferred
to the laws of the land. The law in force in Israel
resembles that which is in force in England in this regard.
See Oppenheim (Lauterpacht), International Law, 8th Ed.,
1955, para. 21a, p. 39:
“As regards Great Britain, the following points must be
noted: (a) All such rules of customary international
law as are either universally recognized or have, at
any rate, received the assent of this country are per
se part of the law of the land. To that extent there
is still valid in England the common law doctrine, to
which Blackstone gave expression in a striking passage,
that the Law of Nations is part of the law of the
land.”
But on the other hand (p. 41):
“(c) English statutory law is absolutely binding upon
English courts, even if in conflict with international
law, although in doubtful cases there is a presumption
that an Act of Parliament did not intend to overrule
international law. The fact that international law is
part of the law of the land and is binding directly on
courts and individuals does not mean that English law
recognizes in all circumstances the supremacy of
international law.
(Note 3) It is of importance not to confuse, as many do, the
question of the supremacy of international law and of the
direct operation of its rules within the municipal sphere.
It is possible to deny the former while fully affirming the
latter.”
See also – Croft v. Dunphy (1933) A.C. 156 (p. 164):
“Legislation of the Imperial Parliament, even in
contravention of generally acknowledged principles of
international law, is binding upon and must be enforced
by the courts of this country, for in these courts the
legislation of the Imperial Parliament cannot be
challenged as ultra vires (Mortensen v. Peters).”
And also – Polites v. Commonwealth of Australia (1945) 70
C.L.R. 60 (Annual Digest, 1943-1945, Case No. 61):
“The Commonwealth Parliament can legislate on these
matters in breach of international law, taking the risk
of international complications. This is recognized as
being the position in Great Britain… The position is
the same in the United States of America… It must be
held that legislation otherwise within the power of the
Commonwealth Parliament does not become invalid because
it conflicts with a rule of international law, though
every effort should be made to construe Commonwealth
statutes so as to avoid breaches of international law
and of international comity.”
As regards Israel, the Deputy President, Justice Cheshin,
said in Criminal Appeal 174/54 (10 Piske Din, 5,p.17):
“As regards the question of the adoption by the
national law of the principles of international law, we
may safely rely on Blackstone’s view in his
Commentaries on the Laws of England (Book IV, Chap. 5):
“`In England…the law of nations…is…adopted in its
full extent by the common law, and is held to be part
of the law of the land…without which it must cease to
be a part of the civilized world.’
And that is the case in other countries, such as the U.S.A.,
France, Belgium, and Switzerland, where the usages of
international law have been acknowledged as part of the law
of the land…”
With respect to statutory law, Justice Agranat said in High
Court Case 279/51 (6 Piske Din 945, p. 966):
“It is a well known rule that a local statutory law
must be construed in accordance with the rules of
public international law, unless its tenor requires
another interpretation.”
And in Criminal Appeal 5/51 (5 iske Din 1061), Justice
Sussman said (p. 1065):
“It is a well-known rule that in interpreting the law,
the court shall endeavour, as far as possible, to avoid
a clash between the national law and the rules of
international law which are binding upon the state; but
this rule is only one of the rules of interpretation.
When we are not dealing with the common law, but with
statutory law, where the will of the legislator is
clear from its wording, the will of the legislator must
be enforced without regard to any contradiction between
that statutory law and international law… Moreover,
the courts of this country derive their jurisdiction
not from the system of international law but from the
laws of the land.”
Our jurisdiction to try this case is based on the Nazis and
Nazi Collaborators (Punishment) Law, a statutory law the
provisions of which are unequivocal. The Court has to give
effect to the law of the Knesset, and we cannot entertain
the contention that this law conflicts with the principles
of international law. For this reason alone, Counsel’s
first contention must be rejected.
11. But we have also perused the sources of international
law, including the numerous authorities mentioned by learned
Counsel in his comprehensive written brief upon which he
based his oral pleadings, and by the learned Attorney
General in his comprehensive oral pleadings, and have failed
to find any foundation for the contention that Israeli law
is in conflict with the principles of international law. On
the contrary, we have reached the conclusion that the Law in
question conforms to the best traditions of the law of
nations.
The power of the State of Israel to enact the Law in
question or Israel’s “right to punish” is based, with
respect to the offences in question, from the point of view
of international law, on a dual foundation: The universal
character of the crimes in question and their specific
character as being designed to exterminate the Jewish
People. In what follows, we shall deal with each of these
two aspects separately.
12. The abhorrent crimes defined in this Law are crimes not
under Israeli law alone. These crimes which offended the
whole of mankind and shocked the conscience of nations are
grave offences against the law of nations itself (“delicta
juris gentium”). Therefore, so far from international law
negating or limiting the jurisdiction of countries with
respect to such crimes, in the absence of an International
Court, the international law is in need of the judicial and
legislative authorities of every country, to give effect to
its penal injunctions and to bring criminals to trial. The
jurisdiction to try crimes under international law is
universal.
13. This universal authority, namely the authority of the
“forum deprehensionis” (the court of the country in which
the accused is actually held in custody) was already
mentioned in the Corpus Juris Civilis (see: C. 3, 15, “ubi
de criminibus agi oportet”), and the towns of northern Italy
had already in the Middle Ages taken to trying specific
types of dangerous criminals (“banniti, vagabundi,
assassini”) who happened to be within their area of
jurisdiction, without regard to the place in which the
crimes in question were committed (see Donnedieu de Vabres
Les Principes Modernes du Droit Penal International, 1928,
p. 136). Maritime nations have also since time immemorial
enforced the principle of universal jurisdiction in dealing
with pirates, whose crime is known in English law as “piracy
jure gentium.” See Blackstone, Commentaries on the Laws of
England, Book IV, Chap. 5 “Of Offences against the Law of
Nations,” p. 68:
“The principal offences against the law of nations,
animadverted on as such by the municipal laws of
England, are of three kinds… 3. Piracy.”
p. 71:
“Lastly, the crime of piracy, or robbery and
depredation upon the high seas, is an offence against
the universal law of society; a pirate being, according
to Sir Edward Coke (3 Inst. 113) hostis humani generis.
As, therefore, he has renounced all the benefits of
society and government, and has reduced himself afresh
to the savage state of nature, by declaring war against
all mankind, all mankind must declare war against him;
so that every community hath a right by the rule of
self-defence, to inflict that punishment upon him which
every individual would in a state of nature have been
otherwise entitled to do, for any invasion of his
person or personal property.”
See also In re Piracy Jure Gentium, (1934) A.C. 586 (per
Viscount Sankey L.C.):
“With regard to crimes as defined by international law,
that law has no means of trying or punishing them. The
recognition of them as constituting crimes, and the
trial and punishment of the criminals, are left to the
municipal law of each country. But whereas according
to international law the criminal jurisdiction of
municipal law is ordinarily restricted to crimes by its
own nationals wherever committed, it is also recognized
as extending to piracy committed on the high seas by
any national on any ship, because a person guilty of
such piracy has placed himself beyond the protection of
any state. He is no longer a national, but hostis
humani generis, and as such he is justiciable by any
state anywhere.”
14. Hugo Grotius had already in 1625 raised in his famous
book De Jure Belli ac Pacis (On the Law of War and Peace)
the basic question of the “right to punish” under
international law, the very question learned Counsel raised.
In Book Two, chapter 20 “De Poenis” (On Punishment), the
author says, inter alia:
“Qui punit, ut recte puniat, jus habere debet ad
puniendum, quod jus ex delicto nocentis nascitur.” (In
order that he who punishes may duly punish, he must
possess the right to punish, a right deriving from the
criminal’s crime.)
In the writer’s view, the object of punishment may be the
good of the criminal, the good of the victim, or the good of
the community. According to natural justice, the victim may
take the law into his hand and himself punish the criminal,
and it is also permissible for any person of integrity to
inflict punishment upon the criminal; but all such natural
rights have been limited by organized society and have been
delegated to the courts of law. The learned author here
adds these important words (our emphasis):
“Sciendum quoque est reges, et qui par regibus jus
obtinent, jus habere poenas poscendi non tantum ob
injurias in se aut subditos suos commissas, sed et ob
eas quae ipsos peculiariter non tangunt, sed in
quibusvis personis jus naturae aut gentium immaniter
violantibus.” (It must also be known that kings, and
any who have rights equal to the rights of kings, may
demand that punishment be imposed not only for wrongs
committed against them or their subjects, but also for
all such wrongs as do not specifically concern them,
but violate in extreme formin relation to any persons,
the law of nature or the law of nations.”
And he goes on to explain:
“Nam libertas humanae societati per poenas consulendi,
quae initio ut diximus penes singulos fuerat,
civitatibus ac judiciis institutis penes summas
potestates resedit, non proprie quo aliis imperant, sed
qua nemini parent. Nam subjectio aliis id jus
abstulit.” (For the liberty to serve the welfare of
human society by imposing penalties which had at first
been, as already stated, in the hands of the
individuals, has been exercised since the constitution
of states and courts, by those with the supreme
authority, not because they dominate others, but
because they are subject to no one. For subjection to
government has taken this right away from others.)
It is therefore the moral duty of every sovereign state (of
“kings and any who have rights equal to the rights of
kings”) to enforce the natural right to punish, possessed by
the victims of the crime whoever they may be, against
criminals whose acts have “violated in extreme form the law
of nature or the law of nations.” By these pronouncements
the father of international law laid the foundations for the
future definition of the “crime against humanity” as a
“crime under the law of nations” and to universal
jurisdiction over such crimes.
15. Vattel says in his book Le Droit des Gens (1758) Book I,
chap. 19, paragraphs 232-233, inter alia:
“Car la Nature ne donne aux hommes et aux Nations le droit
de punir, que pour leur defence et leur surete, d’ou il suit
que l’on ne peut punir que ceux par qui on a ete lese.
“Mais cette raison meme fait voir, que si la Justice de
chaque Etat doit en general se borner a punir les
crimes commis dans son territoire, il faut excepter de
la regle ces scelerats, qui, par la qualite et la
frequence habituelle de leurs crimes, violent toute
surete publique, et se declarent les ennemis du Genre-
humain. Les empoisonneurs, les assassins, les
incendiaires de profession peuvent etre extermines
partout ou on les saisit; car ils attaquent et
outragent toutes les Nations, en foulant aux pieds les
fondemens de leur surete commune. C’est ainsi que les
Pirates sons envoyes a la potence par les premiers
entre les mains de qui ils tombent.”
Wheaton states in his Elements of International Law, 5th
English Ed., 1916, p. 104 (our emphasis):
“The judicial power of every independent state…extends
…to the punishment of piracy and other offences against
the law of nations, by whomsoever and wheresoever
committed.”
Hyde states in his International Law (Chiefly as
Interpreted and Applied by the United States), Vol. 1,
2nd Ed. (1947) in paragraph 241 (p. 804):
“In order to justify the criminal prosecution by a
state of an alien on account of an act committed and
consummated by him in a place outside of its
territory…it needs to be established that there is a
close and definite connection between that act and the
prosecutor, and one which is commonly acknowledged to
excuse the exercise of jurisdiction. There are few
situations where the requisite connection is deemed to
exist… The connection is, however, apparent when the
act of the individual is one which the law of nations
itself renders internationally illegal or regards as
one which any member of the international society is
free to oppose and thwart.”
It must be added that the learned author, who (in keeping
with the Anglo-Saxon tradition) is generally meticulous and
rigid in his pronouncements on the question of criminal
jurisdiction with respect to crimes committed by foreigners
abroad (see also his further remarks, ibid., p. 805, and his
supporting reference to the dissenting opinion of Justice
Moore in the “Lotus” case), specifically favours a clear
exception with respect to “offences under the law of
nations.” See also ibid., para. 11(a) (p. 33):
“The commission of particular acts, regardless of the
character of the actors, may be so detrimental to the
welfare of the international society that its
international law may either clothe a state with the
privilege of punishing the offender, or impose upon it
the obligation to endeavour to do so… In both
situations, it is not unscientific to declare that he
is guilty of conduct which the law of nations itself
brands as internationally illegal. For it is by virtue
of that law that such sovereign acquires the right to
punish and is also burdened with the duty to prevent or
prosecute.”
Glaser in Infraction Internationale, 1957, defines each of
the crimes dealt with here, especially the crime against
humanity” and the “genocide crime” as “infraction
internationale” or “crime d’ordre international” (p. 69),
and states (p. 31)
“Les infractions internationales sont soumises, aussi
longtemps qu’une jurisdiction criminelle internationale
n’existe pas, au regime de la repression ou de la
competence universelle. Dans ce regime, les auteurs de
pareilles infractions peuvent etre poursuivis et punis
en quelque pays que ce soit, donc sans egard au lieu ou
l’infraction a ete commise: Ubi te invenero, ibi te
judicabo.”
Cowles, in “Universality of Jurisdiction over War Crimes,”
33 California Law Review (1945), p. 177, et seq., states in
the following terms the reasons for the rule of law as to
the “universality of jurisdiction over war crimes,” which
was adopted and determined by the United Nations War Crimes
Commission (See: Law Reports of Trials of War Criminals,
Vol. 1, p. 53):
“The general doctrine recently expounded and called
`universality of jurisdiction over war crimes,’ which
has the support of the United Nations War Crimes
Commission and according to which every independent
state has, under international law, jurisdiction to
punish not only pirates but also war criminals in its
custody, regardless of the nationality of the victim or
of the place where the offence was committed,
particularly where, for some reason, the criminal would
otherwise go unpunished.”
Instances of the extensive use made by the Allied Military
Tribunals of the principle of universality of jurisdiction
of war crimes of all classes (including “crimes against
humanity”) will be found in Vols. 1-15 of the Law Reports of
Trials of War Criminals.
16. We have said that the crimes dealt with in this case are
not crimes under Israeli law alone, but are in essence
offences against the law of nations. Indeed, the crimes in
question are not a free creation of the legislator who
enacted the law for the punishment of Nazis and Nazi
collaborators, but have been stated and defined in that law
according to a precise pattern of international laws and
conventions which define crimes under the law of nations.
The “crime against the Jewish People” is defined on the
pattern of the genocide crime defined in the “Convention for
the prevention and punishment of genocide” which was adopted
by the United Nations Assembly on 9 December 1948. The
“crime against humanity” and the “war crime” are defined on
the pattern of crimes of identical designations defined in
the Charter of the International Military Tribunal (which is
the Statute of the Nuremberg Court) annexed to the Four-
Power Agreement of 8 August 1945 on the subject of the trial
of the principal war criminals (the London Agreement), and
also in Law No. 10 of the Control Council of Germany of 20
December 1945. The offence of “membership of a hostile
organization” is defined by the pronouncement in the
judgment of the Nuremberg Tribunal, according to its
Charter, declaring the organizations in question to be
“criminal organizations,” and is also patterned on the
Control Council Law No. 10. For purposes of comparison, we
shall set forth in what follows the parallel articles and
clauses side by side.
Last-Modified: 1999/05/27
