Archive/File: people/e/eichmann.adolf/transcripts/Appeal/Appeal-Session-02-06 Last-Modified: 1999/06/15 The Appellant's reliance on the Genocide Convention is unjustified. The argument is as if under this Convention it is laid down that only the injured country, i.e. the country where the crimes were committed, can judge them. This argument is incorrect. First of all, in the Convention itself it is stated that genocide is a crime under international law, and the Convention simply confirms this, i.e., according to this principle, what universality amounts to is the right of every society in the family of nations to punish this crime. All the Convention does now is to determine that this will also be an obligation for the parties to the Convention to take upon themselves the power of jurisdiction and punishment, and it is taken for granted that the parties to the Convention are formally bound by this obligation from the moment of signing. But this did not in any way restrict the pre-existing right of any state, also before the Convention was entered into, to bring the force of law to bear on crimes such as this. Thus the parallel which the Appellant wishes to draw is unfounded. The District Court epitomized this issue in paragraphs 27 to 25 of its Judgment, and I cannot but repeat what it said at the end: "Our view as to the universality of jurisdiction is not based on this Law or on this interpretation of Article 6 of the Convention, but derives from the basic nature of the crime of genocide as a crime of utmost gravity under international law." President: According to this argument, it would appear that from the viewpoint of international law, our law against the Nazis is not at all retroactive. If this is a crime that existed, this law simply provides the State of Israel with the tools to use in its respect, but in terms of the actual crime, it would appear that it is not retrospective. Attorney General: This was the interpretation at Nuremberg. We are saying that we will punish crimes that already existed, just as the President: put it. Justice Silberg: On which article of the Convention is Dr. Servatius basing himself? Attorney General: Article 6. President: This is an international penal court - what about the situation if it is something else? Attorney General: I will read Article 6: "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." Justice Silberg: Is that cited in paragraph 20 of the Judgment? Attorney General: This is in paragraphs 17-25 of the Judgment. I should just like to add the following remark: The State of Israel was one of those which fought for the establishment of an international penal court, and I would like to refer here to the efforts of my colleague for the Prosecution, Dr. Robinson, in this struggle in the U.N. And it is through no fault of the State that an international penal court was not set up, before whom it would have been possible to try international criminals today. The attempt to nullify in Jerusalem the principles of individual responsibility, which are shared by the entire civilized world, will not succeed. An Israeli court will not do anything to extinguish the candle that has been lit by international law and which incorporates a new hope of encouraging peaceful ties between peoples and deterring international criminals. It is not here that the wheel of progress of international law will be turned back. This is especially not something that we will do here, when so many jurists, including fellow Jews, have striven unceasingly for the development of international law as it has indeed been developed since the Second World War. In a recent book by Prof. Mushkat in Hebrew, called The Nuremberg Trial, published by Yad Vashem, the Court will find in the introduction a presentation of the way the principles of punishing war criminals have developed, including the struggle to impose the principle of individual responsibility for war crimes. And on page 36, there is a description of the contribution of Jewish scholars to the formulation of these principles. In the article by my colleague for the Prosecution, Dr. Robinson, published in the collection issued recently by the Hebrew University in memory of Prof. Lauterpacht, the Court will find an analysis of the initial patterns established in this field by Lauterpacht and which were subsequently accepted generally. In 1947, Hans Kelsen asked the following question in the International Law Quarterly (on page 153): Is the Nuremberg judgment a precedent? Even Kelsen, the last important survivor of the conservative approach, concludes that the principle of individual responsibility for crimes committed within the framework of the state is a loftier expression of justice than reliance on laws which ostensibly allowed those crimes to be perpetrated. And on page 165 he says: "A retroactive law providing individual punishment for acts which were illegal though not criminal at the time they were committed, seems also to be an exception to the rule against ex post facto laws. The London Agreement is such a law. It is retroactive only insofar as it established individual criminal responsibility for acts which at the time they were committed constituted violations of existing international law, but for which this law has provided only collective responsibility. The rule against retroactive legislation is a principle of justice. Individual criminal responsibility represents certainly a higher degree of justice than collective responsibility, the typical technique of primitive law..." Kelsen also admits that where two principles collide, the principle of basic justice on the one hand, and of formalism on the other, justice must gain the upper hand, and he concludes this section in the following words: "...In case two postulates of justice are in conflict with each other, the higher one prevails; and to punish those who were morally responsible for the international crime of the Second World War may certainly be considered as more important than to comply with the rather relative rule against ex post facto laws, open to so many exceptions." President: Which page is that? Attorney General: In the same section. Since Kelsen asked "Is Nuremberg a precedent?", a few years have passed, and his question can be answered in the affirmative: Nuremberg is a precedent. One of the great positivists in German juridical thinking, Gustav Radbruch, wrote the following after the War (on page 353 in Rechtsphilosophie): "It can no longer be said by any meams that what is legal is anything that serves the nation; rather, what is legal is what strengthens the law's certainty and aspires to justice." Justice Agranat: Are you quoting from a book or an article? Attorney General: This is from a book, not an article; it comes from a book which he wrote on illegal laws. I have the German original text, I am prepared to make it available to the Court. When the law does not even try to be just and denies the basic principles of fairness, about which there cannot be any dispute, then the mere external trappings of a provision cannot confer any legality on it. I should point out that war criminals and those who commit crimes against humanity have been explicitly excluded from the ambit of the international conventions that were concluded at the end of the War to protect individuals in need of such protection. In the Convention Relating to the Status of Refugees (Convention Documents, Vol. 3, p.5) it says in Article 1(a)(1): "The provisions of this Convention shall not apply to an individual about whom there is serious reason to believe that he carried out some offence against peace, a war crime or against humanity, as defined in international documents drawn up in order to lay down provisions in respect of such crimes." The same is stated in the Convention concerning the Treatment of Stateless Persons (Convention Documents, Vol. 8, p. 553) in Article 1, Paragraph 3). This indicates that war criminals are not included in the international protection that the organized world confers upon those in need of such protection, while the Declaration of Human Rights, the Magna Carta of our time, states in Article 11(1) that an individual can be put on trial for an act committed by him under national law or international law. President: What were you quoting just now? Attorney General: I quoted from the Declaration of Rights unanimously approved by the U.N. Assembly on 10 December 1948. Article 11(1) contains the text I referred to. There are crimes under national law and there are crimes under international law. Justice Silberg: Is the definition in our law taken from the Convention? Attorney General: Yes. It is taken from the Convention. Regrettably, the State of Israel is not one of the few countries which have enacted municipal legislation in the wake of the International Convention. Counsel for the Defence submitted an argument yesterday in connection with another Convention, and I fear that confusion was evident in respect of many concepts, and I will now try to deal with the resultant lack of clarity. There is a European Convention which is to be found in the 1950 Yearbook of Human Rights, published by the United Nations. It is called the "Convention for the Protection of Human Rights and Fundamental Freedoms." Justice Silberg: The Convention Counsel for the Defence referred to? Attorney General: Yes. But this is where the confusion arose. He said that he would petition the United Nations on this matter. The United Nations are not a party to this Convention. The Convention is applicable only to the members of the Council of Europe. And the Council of Europe has its own machinery. And even it cannot do anything to help Adolf Eichmann. In Article 5, the Convention states that no one shall be deprived of his liberty other than if a judgment has been handed down against him or if he is awaiting trial. In Article 7 it lays down the principle of international law to which I have already referred. Justice Silberg: Are you referring, Mr. Attorney General, to the Convention of 10 December 1948 or to the Rome Convention of 4 November 1950? Attorney General: I am referring to the Convention of 4 November 1950. That is a European convention, and not a general convention. The United Nations proclaimed the Ten Commandments of human liberties. Discussions are still continuing at the United Nations on a general convention, but these debates have not yet resulted in any written convention. The Council of Europe did not wait for the other countries of the world to support such a convention, and it produced its own Convention in Rome. Article 7 reads: "No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed." And immediately after this, in the same breath, to make this text clearer: "This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by civilized nations." In other words, Eichmann can be put on trial under this Convention also, even if the laws are formulated in an ex post facto fashion. Counsel for the Defence warns us with Article 25 of the Convention. What is Article 25? The Commission of the Council of Europe "may receive petitions addressed to the Secretary General of the Council of Europe from any person, non_governmental organization or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention." There are also restrictions on such petitions. We are not a party, although we have not infringed any of its provisions, even if we were a party to the Convention. In any case, we are not a party to it. He wants to submit a petition against Germany - by all means, he is free to do so. What is it he wants from this Court? Does he want you to issue an order nisi against the Bonn Government as to why it should not petition the Commission with a request for Eichmann's extradition? Should I intervene in the arguments between Eichmann and the West German Government? He has initiated proceedings there - so I gather from his Defence Counsel let him continue with them. I can add in parenthesis that he has no rights against a state under this Covenant, because it is not obligated to demand the extradition of one of its subjects who is standing trial elsewhere. The argument here is as follows: Why does Germany not demand his extradition from Israel? He wishes to apply Article 25 of the Covenant in this connection. I see nothing in the Covenant which would make it possible to do this. In any case, there is no such definition of responsibility. And he tells us that under Article 25 he will petition the United Nations. This is definitely out of the question. Justice Silberg: What does the United Nations Universal Declaration of Human Rights of 10 December 1948 say? Attorney General: You have the book. Justice Silberg: It says nothing there about fundamental liberties. Attorney General: It refers to human rights. Justice Silberg: In the Rome Declaration it refers to human rights and fundamental liberties. Attorney General: It is in there, Your Honour. The Court will find that the right to a fair trial is specified in detail, in that Declaration as well. An argument was put forward according to which Eichmann's acts might have been offences when he committed them, but that the Court cannot try him for them. I can reply briefly to this argument using the words of Lord Wright in his article "War Crimes under International Law," published in the Law Quarterly Review No. 245, January 1946). I will read three passages from pages 40-41. "International Law differs from these national systems because there is no central law-making authority. It may thus be described as the law of the international community. That community, however, consists of a number of independent sovereign nations, each with its own system of National or Municipal law. "The lawyer familiar with a municipal system of law will question how this is possible. The idea of law for him will be something to be precisely ascertained from Codes or Acts of the Legislature or decisions of competent Courts, something fixed, precise, coercive, something which corresponds to the ideal of analytical jurisprudence. But that concept does not exhaust the idea of what law is. Law consists of rules for determining conduct. There may be such rules without legislation, without Courts and without executives to give effect to them. There may be the customary or traditional rules which are so familiar that men obey them or act in accordance with them as a matter of ordinary course." At the bottom of page 41 it says: "...that they are not crimes because of the agreement of the four Governments, but that the Governments have scheduled them as coming under the jurisdiction of the Tribunal because they are already crimes by existing law. On any other assumption the Court would not be a Court of law but a manifestation of power. The principles which are declared in the Agreement are not laid down as an arbitrary direction to the court but are intended to define and do, in my opinion, accurately define what is the existing International Law on these matters." An additional argument on the basis of which the Appellant claims that he cannot be tried here is because he was kidnapped against his will. President: Perhaps we should postpone this until the next session on Monday? Attorney General: With this I shall be able to conclude my legal arguments and in the next session turn to the substance of the matter. Perhaps I shall have to ask the Court to continue for a few minutes after 13.00. President: We shall postpone this till Monday. [The session closed at 12.55]
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