The United States of America acted in the same way and
published “Regulations for the trial of war crimes in the
Mediterranean Theater of Operations, provisions regarding
Military Commissions in the European Theater of Operation
and in the Pacific Theater of Operations.”
Presiding Judge: Of what year?
Attorney General: It is not stated here. I read this from
the report of the United Nations War Crimes Commission which
on 1 October 1946 gave the first survey of legislation for
the punishment of war criminals which up to that point had
been adopted in various countries.
However, the matter has meanwhile become more far-reaching
and comprehensive and has involved many different countries
in the east and the west, in the north and the south, all
of whom found it necessary to do what the State of Israel
had done, namely to pass retroactive legislation for the
punishment of persons who committed crimes during the time
of this war. The Court will find that these laws came from
Austria, Bulgaria, Belgium, Canada, Czechoslovakia, Denmark,
France, Greece, Hungary, Italy, Luxembourg, Holland, Norway,
Poland, Rumania, Yugoslavia and Australia. The State of
Israel belongs to that same category of nations which
enacted these laws.
Judge Halevi: Mr. Attorney General, I would like to ask one
question: Were these permanent laws or temporary laws for
the duration of the war?
Attorney General: These are permanent laws enacted for the
purpose of closing the breach which had been made by the
Nazi regime.
Judge Halevi: I enquired because of the expression “Theater
of Operations.”
Attorney General: The Americans had their special approach
to this question. There is no internal American legislation.
The American legislation applied to a specific “Theater of
Operations” but the laws which I quoted here and which I
shall submit to you here and which you will be able to
examine, Your Honour, are all permanent laws. For example I
shall read one of them to you – the law of Denmark. The
English translation is that of the United Nations War Crimes
Commission:
“Danish provisions regarding punishment of war crimes.
If a non-Danish subject, being in the service of
Germany or serving under one of Germany’s allies has
infringed the rules or customs of International Law
governing occupation and war and has performed in
Denmark or to the detriment of Danish interests any
deed punishable per se in Danish law, an action can be
brought against such person in respect of the crime
committed and a punishment imposed in a Danish Court in
pursuance of this Act.
In addition to the instances cited in paragraph 1,
persons having committed the following crimes shall be
liable to prosecution under this act: war crimes,
crimes against humanity, such as murder, maltreatment
of civilians, prisoners or seamen, killing of hostages,
looting of public or private property, requisitioning
of money or other valuables, violation of the
constitution, imposition of collective punishment,
destruction by explosives or otherwise – all and so far
as these actions were performed in violation of the
rules of international law governing occupation and
warfare. This act should further apply to deportation
or other political racial or religious persecutions
contrary to principles of Danish law…”
I should like to emphasize:
“…and further to all actions which although not
specifically cited above, are covered by Article 6 in
the Charter of the International Military Tribunal and
the order issued by the Danish Ministry for Foreign
Affairs Law General Number 7 dated 13 November 1945.”
The Court will find that these or similar expressions, at
shorter or greater length, are used in laws for the
punishing of the Nazis and their collaborators.
Judge Raveh: In what year was this law promulgated?
Attorney General: In the year 1946.
Presiding Judge: Will you kindly submit this collection.
Attorney General: I am ready immediately to submit it
together with the Australian law, of which I do not have a
photostat, but it is to be found in the official Australian
Compilation Acts of Parliament of the Commonwealth of
Australia.
The Court will find that many countries set up special
courts. Even those countries which are not in the habit of
establishing extraordinary or special tribunals set up such
tribunals in order to try Nazi offenders for their war-time
crimes. We in our law of 1950 did not make any innovation
except for the fact that in connection with crimes against
humanity we singled out a special category for crimes
against the Jewish people. Why did we do so? This matter
will be clear to the Court when I quote the remarks of the
Minister of Justice, Mr. Pinhas Rosen, at the time when he
introduced his bill to the Knesset. I read from Knesset
report Vol. 14:
Judge Halevi: Do the remarks of a Minister bind the Court?
Attorney General: They are not binding. But I want to show
why the Parliament of the State of Israel singled out from
amongst all the crimes against humanity, a crime against the
Jewish people.
Judge Halevi: Is this not clear from the law itself?
Attorney General: This is clear from the tragic history of
the Jewish people. Whereas a heavy disaster befell
Australia, Canada and Hungary as a result of the War, it
was, notwithstanding, not a Holocaust. Hitler’s regime
clashed with all these countries in the military arena, but
it did not resolve to exterminate any one of them. And there
was no need to enact a law for crimes against the Australian
people; but a law had to be enacted for crimes against the
Jewish people, because of what the Nazis did. We did not
make any innovations here. This crime is entirely covered by
crimes against humanity. And when the persecutions of the
Jews and the dastardly atrocities committed by the Nazis on
the Jewish people were recalled in the various trials in
Nuremberg and in other countries, these crimes were punished
on the ground that these were crimes against humanity. We
also charged the Accused for the same acts, also according
to the section dealing with crimes against humanity.
However, there was one people only, whom the evil regime had
determined to wipe out utterly. That was the Jewish people.
Consequently when the Parliament of the State of Israel
decided to pass its own law for punishing Nazis, it singled
out, if I may be allowed to say so, it was obliged to single
out a special status for this aspect of the crime against
humanity.
And this is what the Minister of Justice said – I quote from
Knesset Reports Vol. IV page 1147-
“The law for the punishment of Nazis and their
collaborators, like the law which is presently being
considered by the Knesset, the law for the punishment
and prevention of the crime of genocide, where the
Knesset has commenced but not yet completed its special
reading, has again raised before the Knesset the tragic
chapter, the most tragic in the story of our people,
the chapter of the campaign of extermination and
destruction, in which six million members of our people
were annihilated. There is no consolation in the
enactment of such laws. The laws will not restore our
dead to us. And to the extent that it is possible to be
confronted we have to turn our attention to the task of
creativity and construction and the ingathering of the
exiles which are today being undertaken in our country.
“But by enacting these laws we are fulfilling a duty,
an elementary and natural duty, for it would be
impossible for a legislative body, speaking the
language of the rule of law, to pass over these crimes
in silence, the crimes of the Nazis which shocked the
world with their cruelty and brought about a complete
revolution in legal thinking.
“These acts, never before encountered, brought about
innovations which have not even been heard of before in
law. In the well-known Nuremberg Charter and the well-
known Nuremberg trials new juridical principles were
formulated. In the law which I am now proposing too,
you will find innovations and departures from accepted
concepts, that were accepted in the legal world even
before the manifestation of Nazi crimes. These are the
departures from principles which are generally taken as
sacrosanct, from which criminal law could not have
easily dissociated itself, had it not been for the Nazi
crimes.
“And these are the departures from the accepted
principles of the criminal law: Firstly, the law’s
purpose is to inflict punishment for acts, which in
part had not yet been described as offences at the time
they were committed. Secondly, in terms of the proposed
law offenders will be brought to trial for crimes which
they committed beyond the borders of the State.
Generally speaking there is, in this too, a noteworthy
departure from the usual. Thirdly, the law is
retroactive, and as is known it is generally forbidden
for criminal laws to be retroactive.
“The proposed law is distinguished from the law for the
prevention and punishment of the crime of genocide,
which, as I have said, is still under consideration by
the Knesset. That law applies to the future. It has
been introduced in order to prevent a recurrence of
acts that were performed in the past, a recurrence of
crimes similar to those which were perpetrated by the
Nazis. On the other hand, the law which is now being
proposed applies to the past, to a certain period in
history, which began with the rise to power of Hitler
and ended with his destruction.
“It seems to me that we have done well to distinguish
between these two laws. The proposed law refers to the
past. We shall not forget – nor shall we forgive!
“There is, herein, some drawing up of accounts with the
past. Therefore the law does away with the principle of
prescription regarding the most serious crimes, those
which have been included in this law as war crimes,
crimes against humanity and concerning the slaughter of
oppressed people for the sole reason that they were
being oppressed. To these grave crimes the principle of
prescription will not apply.
“The proposed law is an expression of the revolution
that has taken place in the political position of the
Jewish people. While other nations enacted laws soon
after the end of the War, and a few of them actually
before the end of the War, in regard to the punishment
of the Nazis and their collaborators, the Jewish people
whose account with the Nazis was the longest and the
bitterest was deprived, until the establishment of the
State of Israel, of the political authority to put the
Nazi criminals and the collaborators on trial. And it
lacked the political authority to demand the
extradition of these criminals for the purpose of
judging them in its own country, as is proposed in this
law. It is in this sense that the change will now
occur.”
Presiding Judge: Which volume of the Knesset Reports?
Attorney General: Volume IV page 1147.
Under this law various people were tried in the State of
Israel before Adolf Eichmann, from 1950 until this day, and
quite substantial sentences were imposed not only on these
Nazis but also on collaborators of the Nazis, and even on
Jews who implemented their orders and who to the extent that
they could not provide a defence for themselves as
persecuted persons and to the extent that this wicked regime
blunted their moral sense, were found guilty and punished
under this law.
Presiding Judge: Why are you referring now to Israeli
judicial decisions?
Attorney General: Because it defines how the Court views the
law, and that is important. I quote from Criminal Appeal
119/51, Pal versus the Attorney General, Piskei Din, Vol. 6,
on page 498. On page 502, paragraph 4, the following remarks
were made by the President, Justice Olshan:
“If we compare Sections 1 and 2, it will be clear to us
that all the offences specified in Section 2 are also
included, in actual fact, in Section 1, and in that
part of it which deals with crimes against the Jewish
people or crimes against humanity, except that here
they are included in a general framework, such as
murder, extermination, enslavement, starvation,
expulsion and any other inhuman act. The difference is
only this, that in the first Section the crimes are
directed against a group (civilian populations) and in
Section 2 they are directed against the individual.
According to Section 1, too, a person can be found
guilty of a crime he committed in fact against specific
persons, if the act against these persons was
perpetrated as a result of intent to cause harm to a
group, and the act committed by the criminal against
these persons was a kind of ‘part performance’ of his
evil intent in regard to the group as a whole, whether
this group is the Jewish people or any other civilian
population. (It should be pointed out that the term
‘civilian population’ is a broad term, including also a
part of the civilian population belonging to a
national, religious, racial or political group).”
Israel is a party to the Convention dealing with the
Prevention and Punishment of the Crime of Genocide;
incidentally, to our great regret, it is one of the few
signatories to the Convention that have fulfilled their
obligation to adopt the wording of the Convention into the
language of the local law, and it has enacted an internal
Israel law regarding the crime and prevention of
genocide.{Laws of the State of Israel, vol. 4, 5710 –
1949/50, p. 101} This is to be found in Volume 1 of Rashumot
No. 5, on page 66:
“Recognizing that at all periods of history Genocide has
inflicted great losses on humanity; and
Being convinced that in order to liberate mankind from this
odious scourge, international cooperation is required.”
United Nations Treaty Series, vol. 78, p. 277}
The parties to the Convention confirm that genocide, whether
in times of peace or war, is a crime under international
law, and the parties to the Convention undertake to prevent
it and to punish it. ”
Naturally we cannot charge Eichmann in terms of the law that
we enacted by virtue of this Convention, because that law,
as was already explained in the remarks of the Minister of
Justice in the Knesset, applied only to the future.
Presiding Judge: What is the year of our law?
Attorney General: The year 5710-1950.
I proceed now to the analysis of the problem of how public
international law was absorbed into the Israeli domestic
law. The law of the State of Israel follows the Law of
Nations, in that local statute law must be interpreted
according to the principles of public international law.
This has been laid down in a series of judgments. In High
Court 279/51, Piskei Din 6, Vol. 2, 945, on page 966,
paragraph (b) the Court said:
“It is a well-known rule that local statute law, is to
be interpreted according to the rules of public
international law, unless its contents require a
different interpretation.”
In Civil Case (Jerusalem) 208/52, District Court Judgment 8,
page 455, it is stated on page 458:
“The principles of international law, accepted in all
civilized countries, are valid in the State of Israel,
if not by virtue of international law itself, then at
any rate as part of the English common law which is
valid in Israel, in the absence of provisions to the
contrary, by virtue of Article 46 of the Order-in-
Council, and Section 11 of the Administration and Law
Ordinance, 5708-1948.”
Presiding Judge: Whose judgment is this?
Attorney General: Justice Witkon in the case of Shebabo
versus the Belgian Consulate.
When the problem of the State of Israel’s jurisdiction arose
in connection with the ships flying its flag on the high
seas, the Deputy President of the Supreme Court found a
number of sources for the application of international law
to Israel. The judgment was Stampfer versus the Attorney
General, Criminal Appeal 174/54 Piskei Din 10, page 5. On
page 14 opposite the letter a it is stated:
“The said principle, in my opinion, has become part of
the law of this country in three ways: Firstly, by
means of Article 46 of the Order-in Council 1922;
secondly, by virtue of Section 1 of the Admiralty
Offences (Colonial) Act of 1849, which became
incorporated in the laws of Palestine by virtue of
Article 35 of the Order-in-Council 1922; and thirdly by
virtue of the sovereignty of the State of Israel.”
Last-Modified: 1999/05/28
