The Trial of Adolf Eichmann
Lord Hankey remarks furthermore[208] that today, in England
and in the USA, an uneasy feeling existed with regard to
trials of war criminals, owing to the application of
different laws to victors and vanquished. He considers the
judgments of Nuremberg and Tokyo as an infringement on the
principles of independence and impartiality of the tribunal
as well as of the prohibition of legislation with
retrospective effect.[209] Therefore these verdicts did not
benefit international law. On the contrary:
(d) Application of the results arrived at to the Eichmann
case
(aa) Crimes against humanity
As to crimes against humanity - and to this category belong
also the crimes against the Jewish People imputed to the
Accused - it results from our enquiry up to now that the
London Charter and the judgment of the Nuremberg
International Military Tribunal did not change international
law so as to extend the universality principle to the
aforesaid category of crimes. Insofar as the Allied Powers
had tried and punished crimes against humanity, this power
was not based upon the universality principle, but upon
their claim to exercise such a jurisdiction; being a state
which had not been at war with Germany, it cannot rely
either on the jurisdiction over crimes against humanity,
deriving possibly, from the unconditional surrender, the
existence of a condominium or the law of occupation.
As far as Israel is concerned, the legal situation has to be
determined by existing international law in force at the
time when the offences imputed to the Accused were
committed.
However, in this respect it has to be stated that the view
may quite well be advanced that crimes against humanity are
to be considered as unlawful acts in international law;[219]
but the crime against humanity is not - and was not at the
time - recognized as a criminal offence by general
international law.[220]
Occasionally an attempt has been made to base the claim for
criminal jurisdiction of a state over crimes against
humanity upon a right of humanitarian intervention. In this
respect, e.g., the American Military Tribunal[221] in the
Nuremberg Trials has relied upon a statement of the Swiss
scholar of international law, J.K. Bluntschli, made in 1878
which reads "that states are entitled to voice protest in
the name of international law, where human rights have been
infringed to the detriment of any race."[222]
However, the idea of a humanitarian intervention cannot be
used as a solid basis for Israeli jurisdiction over the
Accused Eichmann.
It must be admitted that during the nineteenth century there
were a number of humanitarian interventions.[223] However,
it has to be stated at the same time, that, notwithstanding
this practice of States, the legitimacy of these
interventions was, at least, controversial.[224] Moreover,
it is important to emphasize that in most cases the
intervention was confined to diplomatic protests and
representations, rupture of diplomatic relations, military
threats by mobilization of the navy, and that active
intervention had been an isolated exception (e.g. 1860:
mission of a French expeditionary corps to Syria owing to
the extermination of Christian Maronites by Druse connived
at by the Turkish authorities; intervention of the USA in
Cuba which, in 1898, was the cause of the Spanish-American
war). However, the decisive fact is that in all these cases
no individual intervention was carried out - and the
punishment of a foreigner for crimes against humanity
committed abroad, on the strength of the universality
principle, would amount to such an intervention. In all
these cases collective interventions took place.
Exactly the same view had been expressed in 1920 in the 3rd
edition of Oppenheim's "International Law":
It will presumably not be necessary to explain in detail
that a humanitarian intervention (including - and
particularly - a collective intervention) can hardly be
imagined in view of the present political situation and
constellation. Let us only mention in passing the idea -
occasionally put forward in the USA - of the "liberation of
the peoples of Eastern Europe" within the meaning of a
humanitarian intervention or the possibility of a
humanitarian intervention by the USA in Cuba, in order to
show convincingly and irrefutably that the idea of
humanitarian intervention today is bare of any actual
contents in the political sphere.
Lauterpacht's description of the actual legal situation is
therefore correct; he states:
One does not have to go as far as the critical remarks made
on the lack of certainty in the definition of the offence
"crime against humanity" by the London scholar of
international law, Smith, who holds the view that this term
"has an obvious resemblance to Hitler's doctrine about acts
which are `contrary to sound public opinion' (gesundes
Volksempfinden).[227] Nevertheless unbiased examination
cannot avoid the result that the "crime against humanity" is
devoid of proper constituent facts, that it constitutes an
offence the precise outlines of which cannot be
ascertained.[228] In view of this situation, the extension
of the universality principle to "crimes against humanity"
would amount to the grant of national jurisdiction without
any boundaries whatsoever. For the soundness of this view
there are hardly more competent witnesses than the former
German Minister of Justice, Professor Gustav Radbruch - who
had been a victim of National-Socialist persecution and the
first professor at the German university who, on 9 May 1933,
was removed from the exercise of his functions by the
National-Socialists - and the respected French scholar and
French chief judge in the Nuremberg International Military
Tribunal, Professor Donnedieu de Vabres.
Radbruch was unable to see in art. 10 II 1 c of Law No. 10
of the Control Council - which, adopting exactly the London
Charter, made punishable crimes against humanity - as much
as "an attempt at defining punishable actions."[229]
Donnedieu de Vabres holds the same view and, in addition
thereto, has emphasized the danger of this legal institution
in the legal and political sphere:
Finally, modern practice of international agreements is
evidence against the extension of the universality principle
to crimes against humanity. Noteworthy in the first place is
the Convention on Genocide of 9 December 1948 which came
into force on 21 January 1951. On the question of
jurisdiction,[231] this agreement precisely does not base
itself on the universality principle, but on the territorial
principle.[232] Only the State on the territory of which
the genocide has been committed has jurisdiction over the
offender. This provision for jurisdiction corresponds also
to the mutual obligation of extradition provided for by the
agreement.
The European Convention on Human Rights and Basic Liberties
of 4 November 1950, it is true, grants any State the right
to intervene for the protection of human rights, to empower
the Commission for Human Rights to deal with complaints of
violations of the Convention, even if the injured person is
not one of its nationals (art.24), and in case of need, to
start proceedings in the Tribunal (art. 48). On the other
hand, the Convention has not provided for criminal
jurisdiction based upon the universality principle. In
conclusion, it has therefore to be emphasized that the
universality principle cannot be extended to crimes against
humanity. Therefore, Israel cannot base its jurisdiction
over the Accused Eichmann on the universality principle
either.
(bb) War crimes
The war crimes imputed to the Accused in count 8 of the
information appear to be, according to their nature, crimes
against humanity. The information mentions ill-treatment,
deportation and murder of Jewish inhabitants - i.e. facts
constituting crimes against humanity exactly as defined in
art. 1 of the "Nazis and Nazi Collaborators (Punishment)
Law."
The comments made above on "crimes against humanity" apply
therefore mutatis mutandis. Therefore Israel cannot rely
upon the universality principle in order to justify a claim
for jurisdiction over Eichmann in respect of the war crimes
imputed to him.
(cc) Membership in an enemy organization.
The universality principle also cannot serve as a basis for
the claim of jurisdiction of the State of Israel over
Eichmann by reason of his membership in an enemy
organization.
Two comments ought to be added in order to complete the
aforesaid: The penal provision in sec. 3 of the "Nazis and
Nazi Collaborators (Punishment) Law" is open to the same
fundamental objections as the corresponding provision in
art. 10 of the London Charter. Therefore they need not be
repeated. However, it is noteworthy that the Nuremberg
International Tribunal itself has applied this penal
provision only with certain restrictions. The International
Tribunal declared that mere membership is not sufficient in
order to prosecute a person for the "crime of
membership".[233] The verdict in the Wilhelmstrasse case
also adheres to this principle: "Mere membership is not
sufficient proof of guilt."[234] This restrictive
interpretation has to be understood in connection with the
tendency of the International Military Tribunal and the
American military tribunals to uphold categorically the
principle of personal guilt.[235]
It is however, more important that Israel, by incorporating
art. 9 of the London Charter and the findings of the
judgment of the Nuremberg International Tribunal of 30
September 1946, concerning the "criminal organization" in
sec.3 of the Nazis and Nazi Collaborators (Punishment) Law,
has not converted a rule of existing international criminal
law into a provision of its municipal law. It has to be
emphasized again that neither the London Charter nor the
judgment of the International Military Tribunal has created
new general international criminal law which could now be
relied upon by Israel.
The criminal responsibility of the crime of membership is
therefore not merely declared by way of repetition in sec.
3, but legislatively created as such.
Therefore in sec. 3, too, a claim for national criminal
jurisdiction is put forward which is not based upon any
principle of international law and not even on the
universality principle.
C. Conclusion of the first part:
The conclusion of the foregoing is that Israel cannot rely
upon any rule of international law in order to justify its
claim for jurisdiction over Eichmann and that the exercise
of Israeli jurisdiction over the Accused Eichmann would, on
the contrary, be in violation of existing international law.
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Defence Submission 1
(Part 8 of 8)
The tribunals were established by, and derived their powers
from, the victors alone, for the trial of the vanquished and
of no one else. It was by the victors alone that the Charter
and the Code of International Law were drawn up. There was
something cynical...in the spectacles of British, French and
American judges sitting on the Bench with colleagues who,
however impeccable as individuals, represented a country
which before, during and since the trial has perpetrated
half the political crimes in the calendar. And in spite of
the specious arguments (on page 38) of the Nuremberg
Judgment, I do not see how anyone can deny that under a
cloak of justice these trials were just an old, old story -
one law for the victors and another for the vanquished. Vae
victis!"[207]
"In these circumstances the value of the Nuremberg and
Tokyo trials for the establishment of a Rule of Law
appear negligible. Rather have they given it a grave
setback."[210]
Lord Hankey continues and quotes[211], in support of his
statement, an article published in the "Times" of 21 June
1949 by Lord Oaksey who, as Lord Justice Lawrence, had been
President of the Nuremberg International Military Tribunal.
In this article, the former President of the Tribunal made
the following statement:
"After the Nuremberg Trial it seemed that the rules of
law laid down there would be recognized by all
civilized nations. Now it was doubtful whether that
acceptance could be relied on...It does not appear that
there is any principle we can hope to rely on for the
rule of law that must some day govern the world. It
appears at present impossible to rely on the submission
of all nations to a complete system of international
law."[212].
After these statements, which show a mood of resignation,
Lord Hankey, too, reaches the conclusion:
"that the Nuremberg and the Tokyo trials have failed to
establish international confidence in any rule of law they
sought to apply."[213]
Summarizing and for the sake of completeness it ought to be
mentioned that writers such as Kelsen[214], Finch,[215],
Borchard,[216] Morgan[217] and Jescheck[218] have also
refused to recognize the Nuremberg judgment of the
International Military Tribunal as a precedent in
international criminal law.
"...whether there is really a rule of the Law of
Nations which admits such interpretation may well be
doubted...it may perhaps be said that in time the Law
of Nations will recognize the rule that interventions
in the interest of humanity are admissible, provided
they are exercised in the form of collective
intervention of the Power."[225]
However, just recently, the law of intervention has
developed rather towards an accentuation of the prohibition
of intervention in the internal and external affairs of
another State. Suffice it to recall, in support of this
statement, art. 15 of the Bogota Charter of the Organization
of American States of 30 April 1948 which reads as follows:
"No State or group of States has the right to
intervene, directly or indirectly, for any reason
whatsoever, in the internal or external affairs of any
other State."
This prohibition extends, of course, also to humanitarian
intervention.
"No general rule of positive international law can as
yet be asserted which gives to States the right to
punish foreign nationals for crimes against humanity in
the same way as they are, for instance, entitled to
punish acts of piracy."[226]
An additional reasoning - although more in the nature of
consideration of legal policy - prohibits the extension of
the universality principle to crimes against humanity.
"The doctrine of crimes against humanity is dangerous -
dangerous for the nations owing to the lack of precise
definition, and dangerous for Governments as being
likely to be used as a pretext for the intervention of
a State in the internal affairs of weaker
States."[230]
The question which has been raised cannot be answered
differently by assuming that the wrongful nature and the
criminality of crimes against humanity can be based upon the
consensus of moral conceptions of all civilized nations,
upon "international morality." This term, however, cannot
constitute a sound basis for the extension of the
universality principle to crimes against humanity. This will
be demonstrated and supported by authorities in detail,
later on, in the second part of this investigation, when the
principle of "nulla poena sine lege" will be discussed. In
this context it will be sufficient to refer to the tragedy -
as it may be called without exaggeration - of the project of
a Convention on Human Rights. Since the establishment of the
United Nations, so far no agreement has been reached on a
binding catalogue of basic human values and basic human
liberties. Even the "General Declaration of Human Rights"
dated 10 December 1948 - which could be adopted at all, on
condition that no obligations whatsoever in international
law be attached to it - did not meet with the unanimous
approval of the members of the United Nations. This
reference should be sufficient, in this context, to show the
extent of the consensus of today's community of
international law in the question of humanitarian values and
the real force which may be attributed today to
"international morality."