| Source: http://www.nizkor.org Accessed 18 October 1999 Judgment in the Trial of Adolf Eichmann [Part 2] 15. Vattel says in his book Le Droit des Gens (1758) Book I, chap. 19, paragraphs 232-233, inter alia:
"Mais
cette raison meme fait voir, que si la Justice de chaque Etat doit en
general se borner a punir les crimes commis dans son territoire, il faut
excepter de la regle ces scelerats, qui, par la qualite et la frequence
habituelle de leurs crimes, violent toute surete publique, et se
declarent les ennemis du Genre-humain.
Les empoisonneurs, les assassins, les incendiaires de profession
peuvent etre extermines partout ou on les saisit; car ils attaquent et
outragent toutes les Nations, en foulant aux pieds les fondemens de leur
surete commune. C'est ainsi
que les Pirates sons envoyes a la potence par les premiers entre les
mains de qui ils tombent." Wheaton states in his Elements
of International Law, 5th English Ed., 1916, p. 104 (our emphasis): "The judicial power of every independent state...extends ...to the punishment of piracy and other offences against the law of nations, by whomsoever and wheresoever committed." Hyde
states in his International Law (Chiefly as Interpreted and Applied by
the United States), Vol. 1, 2nd Ed. (1947) in paragraph 241 (p. 804): "In
order to justify the criminal prosecution by a state of an alien on
account of an act committed and consummated by him in a place outside of
its territory...it needs to be established that there is a close and
definite connection between that act and the prosecutor, and one which
is commonly acknowledged to excuse the exercise of jurisdiction.
There are few situations where the requisite connection is deemed
to exist... The connection is, however, apparent when the act of the
individual is one which the law of nations itself renders
internationally illegal or regards as one which any member of the
international society is free to oppose and thwart." It must be added that the
learned author, who (in keeping with the Anglo-Saxon tradition) is
generally meticulous and rigid in his pronouncements on the question of
criminal jurisdiction with respect to crimes committed by foreigners
abroad (see also his further remarks, ibid., p. 805, and his supporting
reference to the dissenting opinion of Justice Moore in the
"Lotus" case), specifically favours a clear exception with
respect to "offences under the law of nations."
See also ibid., para. 11(a) (p. 33): "The
commission of particular acts, regardless of the character of the
actors, may be so detrimental to the welfare of the international
society that its international law may either clothe a state with the
privilege of punishing the offender, or impose upon it the obligation to
endeavour to do so... In both situations, it is not unscientific to
declare that he is guilty of conduct which the law of nations itself
brands as internationally illegal. For it is by virtue of that law that such sovereign acquires
the right to punish and is also burdened with the duty to prevent or
prosecute." Glaser in Infraction
Internationale, 1957, defines each of the crimes dealt with here,
especially the crime against humanity" and the "genocide
crime" as "infraction internationale" or "crime
d'ordre international" (p. 69), and states (p. 31) "Les
infractions internationales sont soumises, aussi longtemps qu'une
jurisdiction criminelle internationale n'existe pas, au regime de la
repression ou de la competence universelle.
Dans ce regime, les auteurs de pareilles infractions peuvent etre
poursuivis et punis en quelque pays que ce soit, donc sans egard au lieu
ou l'infraction a ete commise: Ubi te invenero, ibi te judicabo." Cowles, in "Universality of
Jurisdiction over War Crimes," 33 California Law Review (1945), p.
177, et seq., states in the following terms the reasons for the rule of
law as to the "universality of jurisdiction over war crimes,"
which was adopted and determined by the United Nations War Crimes
Commission (See: Law Reports of Trials of War Criminals, Vol. 1, p. 53): "The
general doctrine recently expounded and called `universality of
jurisdiction over war crimes,' which has the support of the United
Nations War Crimes Commission and according to which every independent
state has, under international law, jurisdiction to punish not only
pirates but also war criminals in its custody, regardless of the
nationality of the victim or of the place where the offence was
committed, particularly where, for some reason, the criminal would
otherwise go unpunished." Instances of the extensive use
made by the Allied Military Tribunals of the principle of universality
of jurisdiction of war crimes of all classes (including "crimes
against humanity") will be found in Vols. 1-15 of the Law Reports
of Trials of War Criminals. 16. We have said that the crimes
dealt with in this case are not crimes under Israeli law alone, but are
in essence offences against the law of nations.
Indeed, the crimes in question are not a free creation of the
legislator who enacted the law for the punishment of Nazis and Nazi
collaborators, but have been stated and defined in that law according to
a precise pattern of international laws and conventions which define
crimes under the law of nations. The
"crime against the Jewish People" is defined on the pattern of
the genocide crime defined in the "Convention for the prevention
and punishment of genocide" which was adopted by the United Nations
Assembly on 9 December 1948. The
"crime against humanity" and the "war crime" are
defined on the pattern of crimes of identical designations defined in
the Charter of the International Military Tribunal (which is the Statute
of the Nuremberg Court) annexed to the Four-Power Agreement of 8 August
1945 on the subject of the trial of the principal war criminals (the
London Agreement), and also in Law No. 10 of the Control Council of
Germany of 20 December 1945. The
offence of "membership of a hostile organization" is defined
by the pronouncement in the judgment of the Nuremberg Tribunal,
according to its Charter, declaring the organizations in question to be
"criminal organizations," and is also patterned on the Control
Council Law No. 10. For
purposes of comparison, we shall set forth in what follows the parallel
articles and clauses side by side. Section 1(b) of the Israeli Law
provides: In this section -- "Crime
against the Jewish People" means any of the following acts,
committed with intent to destroy the Jewish People in whole or in part: (1)
killing Jews; (2)
causing serious bodily or mental harm to Jews; (3)
placing Jews in living conditions calculated to bring about their
physical destruction; (4)
devising measures intended to prevent births among Jews" (Subsections (5) to (7) have no
relevance to this case). Article II of the Convention for
the Prevention and Punishment of the Crime of Genocide provides: "In
the present Convention genocide means any of the following acts
committed with intent to destroy, in whole or in part, a national,
ethnic or religious group as such: (a)
killing members of the group; (b)
causing serious bodily or mental harm to members of the group; (c)
deliberately inflicting on the group conditions of
life calculated to bring about its physical destruction in whole
or in part; (d)
imposing measures intended to prevent births within the group; (e)
forcibly transferring children of the group to another group. Section 1(b) of the Israeli Law
also provides: "Crime against
humanity" means any of the following acts: murder, extermination,
enslavement, starvation or deportation and other inhumane acts committed
against any civilian population, and persecution on national, racial,
religious or political grounds." Article 6 of the Charter of the
Nuremberg Tribunal provides, inter alia: "The
following acts, or any of them, are crimes coming within the
jurisdiction of the Tribunal for which there shall be individual
responsibility: (c)
Crimes against humanity: namely murder, extermination, enslavement,
deportation, and other inhumane acts committed against any civilian
population, before or during the war, or persecutions on political,
racial or religious grounds in execution of or in connexion with any
crime within the jurisdiction of the Tribunal whether or not in
violation of the domestic law of the country where perpetrated." Article II of Control Council
Law No. 10 provides: "1.
Each of the following acts is recognized as a crime: (c)
Crimes against humanity. Atrocities
and offences, including, but not limited to, murder, extermination
enslavement, deportation, imprisonment, torture, rape or other inhuman
acts committed against any civilian population or persecution on
political, racial or religious grounds, whether or not in violation of
the domestic laws of the country where perpetrated." Section 1(b) of the Israeli Law
provides: "War
crime" means any of the following acts: Murder,
ill-treatment or deportation to forced labour or for any other purpose,
of civilian population of or in occupied territory; murder or
ill-treatment of prisoners of war or persons on the seas; killing of
hostages; plunder of public or private property; wanton destruction of
cities, towns or villages, and devastation not justified by military
necessity." Article 6 of the Nuremberg
Tribunal Charter provides: "(b)
War crimes, namely violation of the laws of customs of war.
Such violations shall include, but not be limited to: murder,
ill-treatment or deportation to slave labour or for any other purpose,
of civilian population of or in occupied territory, murder or
ill-treatment of prisoners of war or persons on the seas, killing of
hostages, plunder of public or private property, wanton destruction of
cities, towns or villages, or devastation not justified by military
necessity." Article II of Control Council
Law No. 10 provides: "(b)
War Crimes. Atrocities or offences against persons or property
constituting violations of the laws or customs of war, including, but
not limited to, murder, ill-treatment or deportation to slave labour or
for any other purpose, of civilian population from occupied territory,
murder or illÞtreatment of prisoners of war or persons on the seas,
killing of hostages, plunder of public or private property, wanton
destruction of cities, towns or villages or devastation not justified by
military necessity." Section 3(b) of the Israeli Law
provides: "In
this section, "hostile organization" means: (1) A
body of persons which, under Article 9 of the Charter of the
International Military Tribunal, annexed to the FourÞPower Agreement of
8 August 1945 on the trial of the major war criminals, has been
declared, by a judgment of that Tribunal, to be a criminal
organization." Article 9 of the International
Military Tribunal Charter provides, inter alia: "At
the trial of any individual member of any group or organization the
Tribunal may declare (in connexion with any act of which the individual
may be convicted) that the group or organization of which the individual
was a member was a criminal organization." Article 10 of the same statute
proceeds to add: "In
cases where a group or organization is declared criminal by the
Tribunal, the competent national authority of any signatory shall have
the right to bring individuals to trial for membership therein before
national, military or occupation courts.
In any such case the criminal nature of the group or organization
is considered proved and shall not be questioned." Article II of Control Council
Law No. 10 provides: "(d)
Membership in categories of a criminal group or organization declared
criminal by the International Military Tribunal." 17. The crime of
"genocide" was first defined by Raphael Lemkin in his book
Axis Rule in Occupied Europe (1944), in view of the methodical
extermination of peoples and populations, and primarily the Jewish
People by the Nazis and their satellites (after the learned author had
already moved, at the Madrid 1933 International Congress for the
Consolidation of International Law, that the extermination of racial,
religious or social groups be declared "a crime against
international law"). On
11 December 1946, after the International Military Tribunal pronounced
its judgment against the principal German criminals, the United Nations
Assembly, by its Resolution No. 96 (I), unanimously declared that
"genocide" is a crime against the law of nations.
That resolution said: Genocide
is a denial of the right of existence of entire human groups, as
homicide is the denial of the right to live of individual human beings;
such denial of the right of existence shocks the conscience of mankind,
results in great losses to humanity in the form of cultural and other
contributions represented by these groups, and is contrary to moral law
and to the spirit and aims of the United Nations. Many
instances of such crimes of genocide have occurred when racial,
religious, political and other groups have been destroyed, entirely or
in part. The
punishment of the crime of genocide is a matter of international
concern. THE
GENERAL ASSEMBLY, THEREFORE, AFFIRMS that genocide is a crime under
international law which the civilized world condemns, and for the
commission of which principals and accomplices - whether private
individuals, public officials or statesmen, and whether the crime is
committed on religious, racial, political or any other grounds - are
punishable; INVITES
the Member States to enact the necessary legislation for the prevention
and punishment of this crime; RECOMMENDS
that international co-operation be organized between States with a view
to facilitating the speedy prevention and punishment of the crime of
genocide, and, to this end, REQUESTS
the Economic and Social Council to undertake the necessary studies, with
a view to drawing up a draft convention on the crime of genocide to be
submitted to the next regular session of the General Assembly." On 9 December 1948, the United
Nations Assembly unanimously adopted the Convention for the Prevention
and Punishment of the Crime of Genocide.
The preamble and the first Article of the Convention read as
follows: "The
Contracting Parties, Having
considered the declaration made by the General Assembly of the United
Nations in its resolution 96(1) dated 11 December 1946 that Genocide is
a crime under international law contrary to the spirit and aims of the
United Nations and condemned by the civilized world; Recognizing
that at all periods of history Genocide has inflicted great losses on
humanity; and Being
convinced that in order to liberate mankind from such an odious scourge
international co-operation is required
Hereby agree as hereinafter provided: Article
1 The
Contracting Parties confirm that genocide, whether committed in time of
peace or in time of war is a crime under international law, which they
undertake to prevent and to punish. 18. On 28 May 1951, the
International Court of Justice gave, at the request of the United
Nations Assembly, an Advisory Opinion on the question of the
reservations to that Convention on the Prevention and Punishment of the
Crime of Genocide. The Advisory Opinion stated, inter alia (p. 23): "The
origins of the Convention show that it was the intention of the United
Nations to condemn and punish genocide as `a crime under international
law' involving a denial of the right of existence of entire human
groups, a denial which shocks the conscience of mankind and results in
great losses to humanity, and which is contrary to moral law and to the
spirit and aims of the United Nations (Resolution 96 (1) of the General
Assembly, December 11th, 1946). The
first consequence arising from this conception is that the principles
underlying the Convention are recognized by civilized nations as binding
on States, even without any conventional obligation.
A second consequence is the universal character both of the
condemnation `in order to liberate mankind from such an odious scourge'
(Preamble to the Convention). The Genocide Convention was therefore intended by the General
Assembly and by the contracting parties to be definitely universal in
scope. It was in fact
approved on December 9th, 1948, by a resolution which was unanimously
adopted by fifty-six States." 19. In the light of the repeated
affirmation by the United Nations in the 1946 Assembly resolution and in
the 1948 Convention, and in the light of the Advisory Opinion of the
International Court of Justice, there is no doubt that genocide has been
recognized as a crime under international law in the full legal meaning
of this term, ex tunc; that is to say: The crimes of genocide committed
against the Jewish People and other peoples were crimes under
international law. It follows, therefore, in the light of the acknowledged
principles of international law, that the jurisdiction to try such
crimes is universal. 20. This conclusion encounters a
serious objection in the light of Article 6 of the Convention which
provides that: "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." Prima facie this provision might
appear to yield support for an argumentum e contrario, the very
contention voiced by learned Counsel against the applicability of the
principle of universal jurisdiction, and even against any exterritorial
jurisdiction with respect to the crime in question: If the United
Nations failed to give their support to universal jurisdiction by each
country to try a crime of genocide committed outside its boundaries, but
has expressly provided that, in the absence of an international criminal
tribunal, those accused of this crime shall be tried by "a
competent court of the country in whose territory the act was
committed," how may Israel try the Accused for a crime that
constitutes "genocide"? 21. In order to answer this
objection, we must direct attention to the distinction between the rules
of customary and the rules of conventional international law, a
distinction which also found expression in the Advisory Opinion of the
International Court of Justice with respect to the Convention in
question. That Convention
fulfils two roles simultaneously: In the sphere of customary law it reÞaffirms
the deep conviction of all peoples that "genocide, whether in times
of peace or in times of war, is a crime under international law"
(Article 1). That
confirmation which, as stressed in the Advisory Opinion of the
International Court of Justice, was given "unanimously by fifty-six
countries" is of "universal character," and the purport
of which is that "the principles inherent in the Convention are
acknowledged by the civilized nations as binding on the country even
without a conventional obligation" (ibid).
"The principles inherent in the convention" are, inter
alia, the criminal character of the acts defined in Article 2 (that is,
the article upon which the definition of "a crime against the
Jewish People" in the Israeli Law has been patterned), the penal
liability for any form of participation in this crime (Article 3), the
lack of immunity from penal liability for rulers and public officials
(Article 4), and the fact that for purposes of extradition no political
"character" may be attributed to any such crime (Article 7).
These principles are "recognized by civilized nations,"
according to the conclusion of the International Court of Justice, and
are "binding on the countries even without a conventional
obligation"; that is to say, they constitute part of customary
international law. The
words "approve" in Article 1 of the Convention and
"recognize" in the Advisory Opinion indicate approval and
recognition ex tunc, namely the recognition and confirmation that the
above-mentioned principles had already been part of the 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 - crimes of genocide which were perpetrated by the Nazis.
So much for the first aspect of the Convention (and the important
one with respect to this judgment) - the confirmation of certain
principles as established rules of law in customary international law. 22. The second aspect of the
Convention - the practical object for which it was concluded - is the
determination of the conventional obligations between the contracting
parties to the Convention for the prevention of such crimes in future
and the punishment therefor in the event of their being committed.
Already in UN Resolution 96(I) there came, after the
"confirmation" that the crime of genocide constitutes a crime
under international law, an "invitation," to all Member States
of the United Nations "to enact the necessary legislation for the
prevention and punishment of this crime," together with a
recommendation to organize "international co-operation"
between the countries with a view to facilitating the "prevention
and swift punishment of the crime of genocide," and to this end the
Economic and Social Council was charged with the preparation of the
draft Convention. Accordingly,
the "affirmation" that genocide, whether committed in time of
peace or in time of war, constitutes a crime under international law is
followed in Article 1 of the Convention by the obligation assumed by the
contracting parties who "undertake to prevent and punish it,"
and by Article 5 they "undertake to pass the necessary legislation
to this end." In the wake of these obligations
of the contracting parties to prevent the perpetration of genocide by
suitable legislation and enforce such legislation against future
perpetrators of the crime, comes Article 6 which determines the courts
which will try those accused of this crime.
It is clear that Article 6, like all other articles which
determine the conventional obligations of the contracting parties, is
intended for cases of genocide which will occur in future, after the
ratification of the treaty or adherence thereto by the country or
countries concerned. It
cannot be assumed, in the absence of an express provision in the
Convention itself, that any of the conventional obligations, including
Article 6, will apply to crimes perpetrated in the past. It is of the essence of
conventional obligations, as distinct from the confirmation of existing
principles, that unless another intention is implicit, their application
shall be ex nunc and not ex tunc. Article
6 of the Convention is a purely pragmatic provision and does not presume
to confirm a subsisting principle.
Therefore, we must draw a clear line of distinction between the
provision in the first part of Article 1, which says that "the
contracting parties confirm that genocide, whether in times of peace or
in times of war, is a crime under international law," i.e., a
general provision which confirms the principle of customary
international law that "is binding on all countries even without
conventional obligation," and the provision of Article 6 which is a
special provision in which the contracting parties pledged themselves to
the trial of crimes that may be committed in future. Whatever may be the purport of this obligation within the
meaning of the Convention (and in the event of differences of opinion as
to the interpretation thereof the contracting party may, under Article
9, appeal to the International Court of Justice),
it is certain that it constitutes no part of the principles of
customary international law, which are also binding outside the
contractual application of the Convention. 23. Moreover, even within the
ambit of the contractual application of the Convention, it cannot be
assumed that Article 6 is designed to limit the jurisdiction of
countries to try genocide crimes by the principle of territoriality.
Without entering into the general question of the limits of
municipal criminal jurisdiction, it may be said that there is general
agreement that customary international law does not prohibit a state
from trying its citizens for offences they have committed abroad (and in
the light of subsisting legislation in many countries against the
extradition of their citizens the existence of such an authority is
essential to prevent criminals from behaving in a "hit and
run" manner, by fleeing to their own country).
Had Article 6 meant to provide that those accused of genocide
shall be tried only by "a competent court of the country in whose
territory the crime was committed" (or by an "international
court" which has not been constituted), then that article would
have foiled the very object of the Convention "to prevent genocide
and inflict punishment therefor." In the Sixth Committee, the delegates of several countries
pointed to such a case, as well as to other cases of well-established
jurisdiction in many states, such as the commission of crimes against
the citizens of the state, and after a lengthy debate it was agreed to
append the following statement to the report of the Committee: "The
first part of Article 6 contemplates the obligation of the State in
whose territory acts of genocide have been committed.
Thus, in particular, it does not affect the right of any State to
bring to trial before its own tribunals any of its nationals for acts
committed outside the State." (U.N. Doc. A/C. 6/SR.. 134 p. 5) The words "in particular" are designed neither to negate nor to affirm jurisdiction in other cases. N. Robinson, who refers to the
resolution of the Sixth Committee, adds in his The Genocide Convention,
1960, on p. 84: "The
legal validity of this statement is, however, open to question.
It was the opinion of many delegations that `Article 6 was not
intended to solve questions of conflicting competence in regard to the
trial of persons charged with Genocide; that would be a long process.
Its purpose was merely to establish the obligations of the State
in which an act of Genocide was committed'
F (A/C.6/SR. 132, p. 9). However,
as the chairman rightly pointed out, the report of the Sixth Committee
could only state that a majority of the Committee placed a certain
interpretation on the text; that interpretation could not be binding on
the delegations which had opposed it.
`Interpretation of texts had only such value as might be accorded
to them by the preponderance of opinion in their favor' F (A/C.6/SR.
132, p. 10). It is obvious
that the Convention would be open to interpretation by the parties
thereto; should disputes relating to the interpretation arise, the
International Court of Justice would be called upon to decide what is
the correct interpretation. In
dealing with such problems the Court could obviously use the history of
the disputed article." P.N. Drost, states in The Crime
of State, Vol. II: Genocide (1959) (pp. 101-102): "In
the discussions many delegations expressed the opinion that Article 6
was not meant to solve questions of conflicting or concurrent criminal
jurisdiction. Its purpose was merely to lay down the duty of punishment
of the State in whose territory the act of genocide was committed (U.N.
Doc. A/C. 6/SR. 132)... It seems clear that the Article does not forbid
a Contracting Power to exercise jurisdiction in accordance with its
national rules on the criminal competence of its domestic courts.
General international law does not prohibit a state to punish
aliens for acts committed abroad against nationals." The learned author proceeds to
say on p. 131: "Also
the courts of the country to which the criminals belong by reason of
nationality, were expressly mentioned in the debates as being competent,
if the lex fori so admits, to exercise penal jurisdiction in cases
arising abroad. The forum
patriae rei was recognized as equally competent under the domestic law,
applying in such case the principle of active personality.
But then, many states apply in certain cases the principle of
protective jurisdiction which authorizes the exercise of jurisdiction
over aliens in respect of crimes committed abroad when the interests of
the state are seriously involved. When
the victim of physical crime is a national of the state which has
arrested the culprit, the principle of passive personality may come into
play and the forum patriae victimae
may be competent to try the case. By
way of exception - and the crime of genocide surely must be considered
exceptional in this respect - the principle of universal repression is
applied to crimes which have been committed neither by nor against
nationals, nor against public interests nor on the territory of the
state whose courts are considered competent nevertheless to exercise
criminal jurisdiction by reason of the international concern of the
crime or the international interest of its repression.
None of these forms of complementary competence additional to the
territorial jurisdiction as basic competence of the domestic courts has
been excluded under Article 6 of the present Convention.
There was no need to stipulate these jurisdictional powers which
all states possess unless particular provisions of international law
prohibit or limit the exercise." This Convention may be
contrasted with four Geneva Conventions of 12 August 1949: (Geneva Conventions for (1) the
Amelioration of the Condition of the Wounded and Sick in Armed Forces in
the Field, (2) of the Wounded, Sick and Shipwrecked Members of Armed
Forces at Sea, (3) Relative to the Treatment of Prisoners at War, (4)
Relative to the Protection of Civilian Persons in Time of War). These Conventions provide that - "Each
High Contracting Party shall be under the obligation to search for
persons alleged to have committed, or to have ordered to be committed,
such grave breaches (of the Convention as defined in the following
Article), and shall bring such persons, regardless of their nationality,
before its own courts. It
may also, if it prefers, and in accordance with the provisions of its
own legislation, hand such persons over for trial to another High
Contracting Party concerned, provided such High Contracting Party has
made out a prima facie case." (Article 49 of Convention No. 1, article 50 of Convention No. 2, article 129 of Convention No. 3 and article 146 of Convention No. 4). This establishes the principle of "universality of jurisdiction with respect to war crimes," as obligatory jurisdiction of the High Contracting Parties, an obligation from which none of them may withdraw and which none of them may waive (as expressly stated in the aboveÞmentioned Conventions). That obligation is binding not only on the belligerents, but also on the neutral parties to the Conventions. See British Manual of Military Law, Part III (The Law of War on Land), 1958, para. 282, note 2. M. Greenspan, The Modern Law of Land Warfare 1959, p. 503. |
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