Section 1(b) of the Israeli Law provides:
In this section —
“Crime against the Jewish People” means any of the
following acts, committed with intent to destroy the
Jewish People in whole or in part:
(1) killing Jews;
(2) causing serious bodily or mental harm to Jews;
(3) placing Jews in living conditions calculated to
bring about their physical destruction;
(4) devising measures intended to prevent births among
Jews”
(Subsections (5) to (7) have no relevance to this case).
Article II of the Convention for the Prevention and
Punishment of the Crime of Genocide provides:
“In the present Convention genocide means any of the
following acts committed with intent to destroy, in
whole or in part, a national, ethnic or religious group
as such:
(a) killing members of the group;
(b) causing serious bodily or mental harm to members of
the group;
(c) deliberately inflicting on the group conditions of
life calculated to bring about its physical destruction
in whole or in part;
(d) imposing measures intended to prevent births within
the group;
(e) forcibly transferring children of the group to
another group.
Section 1(b) of the Israeli Law also provides:
“Crime against humanity” means any of the following acts:
murder, extermination, enslavement, starvation or
deportation and other inhumane acts committed against any
civilian population, and persecution on national, racial,
religious or political grounds.”
Article 6 of the Charter of the Nuremberg Tribunal provides,
inter alia:
“The following acts, or any of them, are crimes coming
within the jurisdiction of the Tribunal for which there
shall be individual responsibility:
(c) Crimes against humanity: namely murder,
extermination, enslavement, deportation, and other
inhumane acts committed against any civilian
population, before or during the war, or persecutions
on political, racial or religious grounds in execution
of or in connexion with any crime within the
jurisdiction of the Tribunal whether or not in
violation of the domestic law of the country where
perpetrated.”
Article II of Control Council Law No. 10 provides:
“1. Each of the following acts is recognized as a
crime:
(c) Crimes against humanity. Atrocities and offences,
including, but not limited to, murder, extermination
enslavement, deportation, imprisonment, torture, rape
or other inhuman acts committed against any civilian
population or persecution on political, racial or
religious grounds, whether or not in violation of the
domestic laws of the country where perpetrated.”
Section 1(b) of the Israeli Law provides:
“War crime” means any of the following acts:
Murder, ill-treatment or deportation to forced labour
or for any other purpose, of civilian population of or
in occupied territory; murder or ill-treatment of
prisoners of war or persons on the seas; killing of
hostages; plunder of public or private property; wanton
destruction of cities, towns or villages, and
devastation not justified by military necessity.”
Article 6 of the Nuremberg Tribunal Charter provides:
“(b) War crimes, namely violation of the laws of
customs of war. Such violations shall include, but not
be limited to: murder, ill-treatment or deportation to
slave labour or for any other purpose, of civilian
population of or in occupied territory, murder or ill-
treatment of prisoners of war or persons on the seas,
killing of hostages, plunder of public or private
property, wanton destruction of cities, towns or
villages, or devastation not justified by military
necessity.”
Article II of Control Council Law No. 10 provides:
“(b) War Crimes. Atrocities or offences against persons
or property constituting violations of the laws or
customs of war, including, but not limited to, murder,
ill-treatment or deportation to slave labour or for any
other purpose, of civilian population from occupied
territory, murder or ill_treatment of prisoners of war
or persons on the seas, killing of hostages, plunder of
public or private property, wanton destruction of
cities, towns or villages or devastation not justified
by military necessity.”
Section 3(b) of the Israeli Law provides:
“In this section, “hostile organization” means:
(1) A body of persons which, under Article 9 of the
Charter of the International Military Tribunal, annexed
to the Four_Power Agreement of 8 August 1945 on the
trial of the major war criminals, has been declared, by
a judgment of that Tribunal, to be a criminal
organization.”
Article 9 of the International Military Tribunal Charter
provides, inter alia:
“At the trial of any individual member of any group or
organization the Tribunal may declare (in connexion
with any act of which the individual may be convicted)
that the group or organization of which the individual
was a member was a criminal organization.”
Article 10 of the same statute proceeds to add:
“In cases where a group or organization is declared
criminal by the Tribunal, the competent national
authority of any signatory shall have the right to
bring individuals to trial for membership therein
before national, military or occupation courts. In any
such case the criminal nature of the group or
organization is considered proved and shall not be
questioned.”
Article II of Control Council Law No. 10 provides:
“(d) Membership in categories of a criminal group or
organization declared criminal by the International
Military Tribunal.”
17. The crime of “genocide” was first defined by Raphael
Lemkin in his book Axis Rule in Occupied Europe (1944), in
view of the methodical extermination of peoples and
populations, and primarily the Jewish People by the Nazis
and their satellites (after the learned author had already
moved, at the Madrid 1933 International Congress for the
Consolidation of International Law, that the extermination
of racial, religious or social groups be declared “a crime
against international law”). On 11 December 1946, after the
International Military Tribunal pronounced its judgment
against the principal German criminals, the United Nations
Assembly, by its Resolution No. 96 (I), unanimously declared
that “genocide” is a crime against the law of nations. That
resolution said:
Genocide is a denial of the right of existence of
entire human groups, as homicide is the denial of the
right to live of individual human beings; such denial
of the right of existence shocks the conscience of
mankind, results in great losses to humanity in the
form of cultural and other contributions represented by
these groups, and is contrary to moral law and to the
spirit and aims of the United Nations.
Many instances of such crimes of genocide have occurred
when racial, religious, political and other groups have
been destroyed, entirely or in part.
The punishment of the crime of genocide is a matter of
international concern.
THE GENERAL ASSEMBLY, THEREFORE, AFFIRMS that genocide
is a crime under international law which the civilized
world condemns, and for the commission of which
principals and accomplices – whether private
individuals, public officials or statesmen, and whether
the crime is committed on religious, racial, political
or any other grounds – are punishable;
INVITES the Member States to enact the necessary
legislation for the prevention and punishment of this
crime;
RECOMMENDS that international co-operation be organized
between States with a view to facilitating the speedy
prevention and punishment of the crime of genocide,
and, to this end,
REQUESTS the Economic and Social Council to undertake
the necessary studies, with a view to drawing up a
draft convention on the crime of genocide to be
submitted to the next regular session of the General
Assembly.”
On 9 December 1948, the United Nations Assembly unanimously
adopted the Convention for the Prevention and Punishment of
the Crime of Genocide. The preamble and the first Article
of the Convention read as follows:
“The Contracting Parties,
Having considered the declaration made by the General
Assembly of the United Nations in its resolution 96(1)
dated 11 December 1946 that Genocide is a crime under
international law contrary to the spirit and aims of
the United Nations and condemned by the civilized
world;
Recognizing that at all periods of history Genocide has
inflicted great losses on humanity; and
Being convinced that in order to liberate mankind from
such an odious scourge international co-operation is
required Hereby agree as hereinafter provided:
Article 1
The Contracting Parties confirm that genocide, whether
committed in time of peace or in time of war is a crime
under international law, which they undertake to
prevent and to punish.
18. On 28 May 1951, the International Court of Justice gave,
at the request of the United Nations Assembly, an Advisory
Opinion on the question of the reservations to that
Convention on the Prevention and Punishment of the Crime of
Genocide. The Advisory Opinion stated, inter alia (p. 23):
“The origins of the Convention show that it was the
intention of the United Nations to condemn and punish
genocide as `a crime under international law’ involving
a denial of the right of existence of entire human
groups, a denial which shocks the conscience of mankind
and results in great losses to humanity, and which is
contrary to moral law and to the spirit and aims of the
United Nations (Resolution 96 (1) of the General
Assembly, December 11th, 1946). The first consequence
arising from this conception is that the principles
underlying the Convention are recognized by civilized
nations as binding on States, even without any
conventional obligation. A second consequence is the
universal character both of the condemnation `in order
to liberate mankind from such an odious scourge’
(Preamble to the Convention). The Genocide Convention
was therefore intended by the General Assembly and by
the contracting parties to be definitely universal in
scope. It was in fact approved on December 9th, 1948,
by a resolution which was unanimously adopted by fifty-
six States.”
19. In the light of the repeated affirmation by the United
Nations in the 1946 Assembly resolution and in the 1948
Convention, and in the light of the Advisory Opinion of the
International Court of Justice, there is no doubt that
genocide has been recognized as a crime under international
law in the full legal meaning of this term, ex tunc; that is
to say: The crimes of genocide committed against the Jewish
People and other peoples were crimes under international
law. It follows, therefore, in the light of the
acknowledged principles of international law, that the
jurisdiction to try such crimes is universal.
20. This conclusion encounters a serious objection in the
light of Article 6 of the Convention which provides that:
“Persons charged with genocide or any of the other acts
enumerated in Article 3 shall be tried by a competent
tribunal of the States in the territory of which the
act was committed, or by such international penal
tribunal as may have jurisdiction with respect to those
contracting parties which shall have accepted its
jurisdiction.”
Prima facie this provision might appear to yield support for
an argumentum e contrario, the very contention voiced by
learned Counsel against the applicability of the principle
of universal jurisdiction, and even against any
exterritorial jurisdiction with respect to the crime in
question: If the United Nations failed to give their support
to universal jurisdiction by each country to try a crime of
genocide committed outside its boundaries, but has expressly
provided that, in the absence of an international criminal
tribunal, those accused of this crime shall be tried by “a
competent court of the country in whose territory the act
was committed,” how may Israel try the Accused for a crime
that constitutes “genocide”?
21. In order to answer this objection, we must direct
attention to the distinction between the rules of customary
and the rules of conventional international law, a
distinction which also found expression in the Advisory
Opinion of the International Court of Justice with respect
to the Convention in question. That Convention fulfils two
roles simultaneously: In the sphere of customary law it
re_affirms the deep conviction of all peoples that
“genocide, whether in times of peace or in times of war, is
a crime under international law” (Article 1). That
confirmation which, as stressed in the Advisory Opinion of
the International Court of Justice, was given “unanimously
by fifty-six countries” is of “universal character,” and the
purport of which is that “the principles inherent in the
Convention are acknowledged by the civilized nations as
binding on the country even without a conventional
obligation” (ibid). “The principles inherent in the
convention” are, inter alia, the criminal character of the
acts defined in Article 2 (that is, the article upon which
the definition of “a crime against the Jewish People” in the
Israeli Law has been patterned), the penal liability for any
form of participation in this crime (Article 3), the lack of
immunity from penal liability for rulers and public
officials (Article 4), and the fact that for purposes of
extradition no political “character” may be attributed to
any such crime (Article 7). These principles are
“recognized by civilized nations,” according to the
conclusion of the International Court of Justice, and are
“binding on the countries even without a conventional
obligation”; that is to say, they constitute part of
customary international law. The words “approve” in Article
1 of the Convention and “recognize” in the Advisory Opinion
indicate approval and recognition ex tunc, namely the
recognition and confirmation that the above-mentioned
principles had already been part of the customary
international law at the time of the perpetration of the
shocking crimes which led to the United Nations’ resolution
and the drafting of the Convention – crimes of genocide
which were perpetrated by the Nazis. So much for the first
aspect of the Convention (and the important one with respect
to this judgment) – the confirmation of certain principles
as established rules of law in customary international law.
22. The second aspect of the Convention – the practical
object for which it was concluded – is the determination of
the conventional obligations between the contracting parties
to the Convention for the prevention of such crimes in
future and the punishment therefor in the event of their
being committed. Already in UN Resolution 96(I) there came,
after the “confirmation” that the crime of genocide
constitutes a crime under international law, an
“invitation,” to all Member States of the United Nations “to
enact the necessary legislation for the prevention and
punishment of this crime,” together with a recommendation to
organize “international co-operation” between the countries
with a view to facilitating the “prevention and swift
punishment of the crime of genocide,” and to this end the
Economic and Social Council was charged with the preparation
of the draft Convention. Accordingly, the “affirmation”
that genocide, whether committed in time of peace or in time
of war, constitutes a crime under international law is
followed in Article 1 of the Convention by the obligation
assumed by the contracting parties who “undertake to prevent
and punish it,” and by Article 5 they “undertake to pass the
necessary legislation to this end.”
In the wake of these obligations of the contracting parties
to prevent the perpetration of genocide by suitable
legislation and enforce such legislation against future
perpetrators of the crime, comes Article 6 which determines
the courts which will try those accused of this crime. It
is clear that Article 6, like all other articles which
determine the conventional obligations of the contracting
parties, is intended for cases of genocide which will occur
in future, after the ratification of the treaty or adherence
thereto by the country or countries concerned. It cannot be
assumed, in the absence of an express provision in the
Convention itself, that any of the conventional obligations,
including Article 6, will apply to crimes perpetrated in the
past.
It is of the essence of conventional obligations, as
distinct from the confirmation of existing principles, that
unless another intention is implicit, their application
shall be ex nunc and not ex tunc. Article 6 of the
Convention is a purely pragmatic provision and does not
presume to confirm a subsisting principle. Therefore, we
must draw a clear line of distinction between the provision
in the first part of Article 1, which says that “the
contracting parties confirm that genocide, whether in times
of peace or in times of war, is a crime under international
law,” i.e., a general provision which confirms the principle
of customary international law that “is binding on all
countries even without conventional obligation,” and the
provision of Article 6 which is a special provision in which
the contracting parties pledged themselves to the trial of
crimes that may be committed in future. Whatever may be the
purport of this obligation within the meaning of the
Convention (and in the event of differences of opinion as to
the interpretation thereof the contracting party may, under
Article 9, appeal to the International Court of Justice),
it is certain that it constitutes no part of the principles
of customary international law, which are also binding
outside the contractual application of the Convention.
Last-Modified: 1999/05/27
