Eichmann trial - The District Court Sessions









The Trial of Adolf EichmannSession 3(Part 3 of 3)


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 nations...is...adopted 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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