Archive/File: people/e/eichmann.adolf/transcripts/Appeal/Appeal-Session-07-04
Last-Modified: 1999/06/15

The international character of crimes of this type and the
universal interest that sustains the object of imposing
punishment for them were also stressed by Cowles in his
article "Universality of Jurisdiction over War Crimes" (33
California Law Review 217) in the following words:

"...while the state whose nationals were directly affected
has a primary interest, all civilized states have a very
real interest in the punishment of war crimes.  `The
unpunished criminal is itself a menace to the social order.'
And an offence against the laws of war, as a violation of
the law of nations, is a matter of general interest and
concern...war crimes `are offences against the conscience of
civilized humanity'."

(c) In view of the characteristic traits of international
crimes discussed above, and the organic development of the
law of nations - a development that advances from case to
case under the impact of the humane sentiments common to
civilized nations, and under the pressure of the needs that
are vital for the survival of mankind and for ensuring the
stability of the world order - it definitely cannot be said
that when the Charter of the Nuremberg International
Military Tribunal was signed and the categories of `War
Crimes' and `Crimes against Humanity' were defined in it,
this merely amounted to an act of legislation by the
victorious countries.  The truth is, as the Tribunal itself
said, that the Charter, with all the principles embodied in
it, including that of individual responsibility, must be
seen as:

"the expression of international law existing at the time of
its creation; and to that extent (the Charter) is itself a
contribution to international law (IMT (1947) vol. 1, p.
218).

See also the identical view expressed by Court No. III in
the American Zone of Germany concerning two of the types of
crimes mentioned in Control Commission Law No. 10.

"All of the war crimes and many, if not all, of the crimes
against humanity as charged in the indictment...were...(not)
violative of pre-existing principles of international law.
To the extent to which this is true, C.C. law may be deemed
to be a codification, rather than original substantive
legislation" (U.S. v. Altstoetter, TWC, vol. 3, p. 966).

It should be added that many of those who voiced criticism
of the Charter and the judgment of the International
Military Tribunal at Nuremberg directed it against the
incorporation into the Charter of the `Crime against Peace,'
but not against incorporating the other two categories (see
articles by Finch in the Am. Journal of Int. Law, vol. 41
(1947) pp. 22, 23; and Doman in the Columbia Law Review,
vol. 60 (1960) p. 413).  Insofar as other writers have
criticized the incorporation of `Crimes against Humanity' as
being contrary to international law de lege lata, they did
so on the ground that the punishment of Nazi criminals for
the commission of such crimes within Germany and against
German citizens imported an excessive interference with the
domestic competence of the state (see article by Schick in
the same volume of the Am. Journal of Int. Law, pp. 778-779.
The reply to this contention is: First, it is possible to
draw a direct line to the inclusion of the above crimes in
the Charter from the wording of the aforementioned provision
of the Geneva Convention No. IV, 1907, which refers to the
`Laws of Humanity' and the dictates of `public conscience.'
It stands to reason, as Quincy Wright said (see his article,
ibid., p. 60), that these words should apply "to atrocities
against nationals as well as against aliens."  To quote the
picturesque language of Friedmann (in his book Legal Theory,
4th ed., p. 316):

"...it is hardly necessary to invoke natural law to condemn
the mass slaughter of helpless human beings.  Murder is
generally taken to be a crime in positive international
law."

Second, and most important, the interest in preventing and
imposing punishment for acts comprised in the category in
question - especially when they are perpetrated on a very
large scale - must necessarily extend beyond the borders of
the state to which the perpetrators belong, and which
passively tolerated or encouraged their outrages; for such
acts can undermine the foundations of the international
community as a whole and impair its very stability.
Evidence of the manifestation of this international concern
before World War I can be found in a series of incidents
which occurred during the nineteenth and the beginning of
the twentieth centuries and resulted in forceful diplomatic
intervention by various countries on the ground of
`humanitarian considerations' in respect of the terrible
atrocities initiated or directed by certain other countries
against whole sections of their own citizens (see a list of
these incidents in the above-mentioned case of Altstoetter,
pp. 981-982; also in Greenspan's book The Modern Law of Land
Warfare (1959) p. 438).

Third, the above criticism affects, at most, the question of
criminal jurisdiction, with which we shall yet deal; but it
cannot derogate from the character of the above crimes as
offences against international law by every standard of
civilized humanity.

Fourth, if we are to regard customary international law as a
developing progressive system, as we are bound to do, the
criticism becomes devoid of value.  This is because ever
since the International Military Tribunal at Nuremberg
decided this question, that decision must necessarily be
seen as a judicial act which establishes a `precedent'
defining the rule of international law.  In any event, it
would be unseemly for any other court to disregard such a
rule and not to follow it.  As Schwelb stated (ibid., p.
212):

"He would be a bold judge of any national, occupation, or
military court, who would decline to be guided by the
reasoned judgment of a court composed of four eminent
members of the legal profession of the four Great Powers,
arrived at after a trial, unique in its history, backed by
the authority not only of the four signatories, but also of
nineteen `adherent' states, always provided that the facts -
and the law to be applied - are the same."

Fifth, if there was any doubt as to this appraisal of the
Nuremberg Principles as principles that have formed part of
customary international law `since time immemorial,' such
doubt has been removed by two international documents.  We
refer to the United Nations Assembly resolution of 11.12.46
which "affirms the principles of international law
recognized by the Charter of the Nuremberg Tribunal, and the
judgment of the Tribunal," and also to the United Nations
Assembly resolution of the same date, No. 96 (1) in which
the Assembly "affirms that genocide is a crime under
international law."

As to the first document, Woetzel stated in his book, ibid.,
p. 57):

"this additional endorsement by the United Nations
represents further tangible evidence for assuming that the
principles of the Charter as well as those in the judgment
in the IMT were valid principles of international law, and
that their application was justified."

As to both the above-mentioned documents, Sloan said (in his
article in the British Yearbook of International Law (1948),
p. 24):

"while it must be conceded that the General Assembly cannot
enact new law, it has already adopted resolutions declaring
what it finds to be an existing rule of international law.
Perhaps the most important of such resolutions have been the
affirmation of the Nuremberg principles and the declaration
that genocide is an international crime... If fifty-eight
nations unanimously agree on a statement of existing law, it
would seem that such a declaration would be all but
conclusive evidence of such a rule, and agreement by a large
majority would have great value in determining what is
existing law."

Furthermore, in the wake of Resolution 96 (1) of 11.12.46,
the United Nations Assembly unanimously adopted on 9.12.48
the Convention for the Prevention and Punishment of the
Crime of Genocide.  Article 1 of this document provides
that: "The Contracting Parties confirm that genocide,
whether committed in time of peace or in time of war, is a
crime under international law..."  As the District Court has
shown, on the strength of the Advisory Opinion of the
Permanent Court of International Justice dated 28.5.51, the
import of this provision is that the principles inherent in
the Convention - as distinct from the contractual
obligations embodied therein - "had already been part of
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 on crimes of
genocide which were perpetrated by the Nazis" (paragraph 2
of the Judgment).

The deduction to be made from the above analysis is that the
crimes established in the Law of 1950, which we have grouped
under the inclusive heading `Crimes against Humanity,' must
be seen today as acts that have always been forbidden by
customary international law - acts which are of a
`universal' criminal character and entail individual
criminal responsibility.  This being so, the enactment of
the Law was not, from the point of view of international
law, a legislative act that conflicted with the principle
nulla poena or the operation of which was retroactive, but
rather one by which the Knesset gave effect to international
law and its objectives.  For this reason, too, the first
contention of Counsel for the Appellant rests on shaky
foundations.

12. The second proposition.  It will be recalled that,
according to this proposition, it is the universal character
of the crimes in question which vests in every state the
power to try those who participated in the perpetration of
such crimes and to punish them therefor.  This proposition
is closely linked with the one adduced in the preceding
paragraph from which, indeed, it follows as a logical
outcome.  The reasoning behind it is as follows:

(a) One of the principles whereby states assume, in one
degree or another, the power to try and punish a person for
an offence he has committed, is the principle of
universality.  Its meaning is, in essence, that that power
is vested in every state regardless of the fact that the
offence was committed outside its territory by a person who
did not belong to it, provided he is in its custody at the
time he is brought to trial.  This principle has wide
support and is universally acknowledged with respect to the
offence of piracy jure gentium.  But while there exists
general agreement as to its application to this offence,
there is a difference of opinion as to the scope of its
application (see Harvard Research (1935), p. 503 ff).  Thus
one school of thought holds that it cannot be applied to any
offence other than the one mentioned above, lest this entail
excessive interference with the competence of the state in
which the offence was committed.  This view is reflected in
the following extract from the judgment of Judge Moor in the
Lotus case (ibid., p. 71):

"It is important to bear in mind the foregoing opinions of
eminent authorities as to the essential nature of piracy by
law of nations, especially for the reason that nations have
shown the strongest repugnance to extending the scope of the
offence, because it carried with it...the principle of
universal jurisdiction ..."

and supra (p. 70)

"Piracy by law of nations, in its jurisdictional aspects, is
sui generis."

A second school of thought - represented by the authors of
the draft Convention on this subject in the Harvard Research
(ibid., p. 559) - though agreeing to the extension of the
principle to all manner of extra-territorial offences
committed by foreign nationals, considers it to be no more
than an auxiliary principle, to be applied in circumstances
in which no resort can be had to the principle of
territorial sovereignty or to the nationality principle,
both of which are universally agreed to.  The authors of
this draft, therefore, impose various restrictions on the
application of the principle of universal jurisdiction,
which are designed to obviate opposition by those states
that find themselves competent to punish the offender
according to either of the other two principles mentioned.
One of these reservations - to which we shall yet revert -
is that the state contemplating the exercise of the power in
question must first offer the extradition of the offender to
the state within whose territory the offence was committed
(forum delicti commissi).  The justification seen by that
school of thought - as distinct from the first-mentioned
school - for the adoption of this principle, albeit as a
purely auxiliary principle, is the consideration that it is
calculated to prove useful in circumstances in which the
offender is likely to evade punishment, if it is not
applied.

A third school of thought holds that the rule of universal
jurisdiction, which is valid in cases of piracy, logically
applies also to all such criminal acts of commission or
omission which constitute offences under the law of nations
(delicta juris gentium) without any reservation whatever or,
at most, subject to a reservation of the kind mentioned
above.  (See quotation in paragraph 14 of the judgment of
the District Court from Wheaton's Elements of International
Law, 5th English edition, p. 184; also proposals in this
spirit referred to in Harvard Research, p. 555 and pp. 562,
563.)  This view has been opposed in the past because of the
difficulty in securing general agreement as to the offences
to be included in the above-mentioned class (ibid., pp. 555,
558).

A fourth view is that expressed de lege ferenda by
Lauterpacht in the Cambridge Law Journal of 1947 (vol. 9, p.
348, note 61):

"It would be in accordance with an enlightened principle of
justice - a principle which has not 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 character..."

(b)  This brief survey of views set out above shows that,
notwithstanding the differences between them, there is full
justification for applying here the principle of universal
jurisdiction, since the international character of the
`crimes against humanity' (in the wide meaning of the term)
is, in this case, not in doubt, and the unprecedented extent
of their injurious and murderous effects is not open to
dispute at the present day.  In other words, the basic
reason for which international law recognizes the right of
each state to exercise such jurisdiction in piracy offences
- notwithstanding the fact that its own jurisdiction does
not extend to the scene of the commission of the offence
(the high seas) and the offender is a national of another
state or is stateless - applies with all the greater force
to the above-mentioned crimes.  That reason is, it will be
recalled, that the interest to prevent bodily and material
harm to those who sail the seas, and to persons engaged in
free trade between nations, is a vital interest, common to
all civilized states and of universal scope, as was
emphasized by the authors of the Harvard Research (p. 552):

"...The competence to prosecute and punish for piracy was
commonly explained by saying that the pirate...was the enemy
of all alike... The competence is better justified at the
present time upon the ground that the punishable acts are
committed upon the seas where all have an interest in the
safety of commerce and where no state has territorial
jurisdiction.  Notwithstanding the more effective policing
of the seas in modern times, the common interest and mutual
convenience which gave rise to the principle have conserved
its vitality as a means of preventing the recurrence of
maritime depredations of a piratical character."

That is to say that it was not the recognition of the
universal jurisdiction to try and punish the person who
committed `piracy' that justified the viewing of such an act
as an international crime sui generis, but it was the agreed
vital interest of the international community that justified
the exercise of the jurisdiction in question:

"As a result of this attitude of mankind towards these two
great public crimes...piracy and the slave trade, wherever
practised, are subject to punishment by any political
authority apprehending the persons engaged therein
irrespective of their nationality or allegiance" (Robert
Lansing, op. cit., p. 25).

It follows that the state which prosecutes and punishes a
person for that offence acts solely as the organ and agent
of the international community, and metes out punishment to
the offender for his breach of the prohibition imposed by
the law of nations:

"...with regard to the pirate, the state punishing him acts
as as an organ of the international legal community.  For it
is international law which the state applies against the
pirate" (Kelsen op. cit., p. 345).

"...the prosecution must perforce be conducted in the courts
of the state which has seized the pirate; but the violation
of the law invoked is one which concerns the entire
community of nations, and the prosecuting state is acting,
in effect, as agent of all civilized states in vindicating
the law common to them all" (Glueck, op. cit., p. 100).

The above explanation of the substantive basis underlying
the exercise of universal jurisdiction in respect of the
crime of piracy also justifies its exercise in regard to the
crimes with which we are dealing in this case.

Home ·  Site Map ·  What's New? ·  Search Nizkor