Judgment in the Trial of Adolf Eichmann 

[Part 3]

25. On the other hand, in the Convention for the Prevention and Punishment of Genocide, Member States of the United Nations did not reach quite so far-reaching an agreement, but contented themselves with the determination of territorial jurisdiction as a compulsory minimum.  It is the consensus of opinion that the absence from this Convention of a provision establishing the principle of universality (and, with that, the failure to constitute an international criminal tribunal) is a grave defect in the Convention which is likely to weaken the joint efforts for the prevention of the commission of this abhorrent crime and the punishment of its perpetrators, but there is nothing in this defect to make us deduce any tendency against the principle of the universality of jurisdiction with respect to the crime in question.  It is clear that the reference in Article 6 to territorial jurisdiction, apart from the jurisdiction of the non-existent international tribunal, is not exhaustive, and every sovereign state may exercise its existing powers within the limits of customary international law, and there is nothing in the adherence of a state to the Convention to waive powers which are not mentioned in Article 6.  It is in conformity with this view that the Law for the Prevention and Punishment of Genocide, 5710-1950, provided in section 5 that "any person who committed an act outside of Israel which is an offence under this law may be tried and punished in Israel as though he committed the act inside Israel." 

This Law does not apply with retroactive effect and does not therefore pertain to the offences dealt with in this case.  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.  The significance and relevance of the Convention to this case lies in the confirmation of the international nature of the crime, a confirmation which was unanimously given by the United Nations Assembly and which was adhered to, among other peoples, by the German people as well (in 1954 the German Federal Republic adhered to the Convention and enacted a law - BGBL II, 729 - which gave effect to the Convention in Germany and added to the German criminal law article 220A against genocide - Voelkermord - a crime defined according to Article 2 of the Convention).  The "crime against the Jewish People" under section 1 of the Israeli Law constitutes a crime of "genocide" within the meaning of Article 2 of the Convention, and inasmuch as it is a crime under the law of nations, Israel's legislative authority and judicial jurisdiction in this matter is based upon the law of nations. 

26. As to the crimes defined in Article 6 of the Charter of the International Military Tribunal, that Tribunal said in its judgment on "the principal war criminals" (IMT, Vol. 1, p. 218) inter alia : 

"The Charter is not an arbitrary exercise of power on the part of the victorious nations, but in the view of the Tribunal, as will be shown, it is the expression of international law existing at the time of its creation, and to that extent is itself a contribution to international law." 

As regards the crimes defined in Control Council Law No. 10, which was taken as a basis, among other cases, for twelve important cases tried by the United States Military Tribunals in Nuremberg, it was stated in the judgment passed on the "Jurists" ("Justice Case," Trials of War Criminals, Vol. III, 954 ff (p. 968) that: 

"The IMT Charter, the IMT Judgment, and Control Council Law 10 are merely `great new cases in the book of international law.'  ...Surely C.C. Law 10, which was enacted by the authorized representatives of the four greatest powers on earth, is entitled to judicial respect when it states: `Each of the following acts is recognized as a crime.'  Surely the requisite international approval and acquiescence is established when 23 states, including all of the great powers, have approved the London Agreement and the IMT Charter, without dissent from any state.  Surely the IMT Charter must be deemed declaratory of the principles of international law, in view of its recognition as such by the General Assembly of the United Nations."  

The judgment then proceeds to quote the resolution which was unanimously adopted on 11 December 1946 by the United Nations Assembly that: 

"The General Assembly...affirms the principles of international law recognized by the Charter of the Nuernberg Tribunal and the judgment of the Tribunal." 

Further on, the judgment draws a distinction between the substantive principles of international law which lay down that "war crimes" and "crimes against humanity" are crimes whenever and wherever they were committed, and the actual enforcement of these universal principles which may come up against barriers of national sovereignty: 

"We are empowered to determine the guilt or innocence of persons accused of acts described as "war crimes" and "crimes against humanity" under rules of international law.  At this point, in connection with cherished doctrines of national sovereignty, it is important to distinguish between the rules of common international law which are of universal and superior authority on the one hand, and the provisions for enforcement of those rules which are by no means universal on the other...  As to the punishment of persons guilty of violating the laws and customs of war (war crimes in the narrow sense), it has always been recognized that tribunals may be established and punishment imposed by the state into whose hands the perpetrators fall.  These rules of international law were recognized as paramount, and jurisdiction to enforce them by the injured belligerent government, whether within the territorial boundaries of the state or in occupied territory, has been unquestioned.  (Ex parte Quirin, 317 U.S. 1; In re: Yamashita, 327 U.S. 1, 90 L Ed.)  However, enforcement of international law has been traditionally subject to practical limitation.  Within the territorial boundaries of a state having a recognized, functioning government presently in the exercise of sovereign power throughout its territory, a violator of the rules of international law could be punished only by the authority of the officials of that state.  The law is universal, but such a state reserves unto itself the exclusive power within its boundaries to apply or withhold sanctions...  Applying these principles, it appears that the power to punish violators of international law in Germany is not solely dependent on the enactment of rules of substantive penal law applicable only in Germany... Only by giving consideration to the extraordinary and temporary situation in Germany can the procedure here be harmonized with established principles of national sovereignty.  In Germany an international body (the Control Council) has assumed and exercised the power to establish judicial machinery for the punishment of those who have violated the rules of the common international law, a power which no international authority without consent could assume or exercise within a state having a national government presently in the exercise of its sovereign powers." 

It is clear from these pronouncements that the contention that the Nuremberg International Military Tribunal and the tribunals which were established in Germany by virtue of the Control Council Law No. 10 derive their jurisdiction from the capitulation and lack of sovereignty of Germany at that time, is true only with respect to the direct exercise of criminal territorial jurisdiction in Germany, such as was exercised by the above-mentioned tribunals, but it has adopted for itself substantive rules of universal validity in the law under discussion, the rules of international law on the subject of "war crimes" and "crimes against humanity".  The judgment proceeds to say (p. 983): 

"Whether the crime against humanity is the product of statute or of common international law, or, as we believe, of both, we find no injustice to persons tried for such crimes.  They are chargeable with knowledge that such acts were wrong and were punishable when committed." 

It is hardly necessary to add that the "crime against the Jewish People," which constitutes the crime of "genocide" is nothing but the gravest type of "crime against humanity" (and all the more so because both under Israeli law and under the Convention a special intention is requisite for its commission of a "crime against humanity").  Therefore, all that has been said in the Nuremberg principles on the "crime against humanity" applies a fortiori to the "crime against the Jewish People."  If authority is needed for this, we find it in the same judgment, which says: 

"As the prime illustration of a crime against humanity under C.C. Law 10, which by reason of its magnitude and its international repercussions has been recognized as a violation of common international law, we cite `genocide'..." 

It is not necessary to recapitulate in Jerusalem, fifteen years after Nuremberg, the grounds for the legal rule on the "crime against humanity," for these terms are written in blood, in the torrents of the blood of the Jewish People which was shed.  "That law," said Aroneanu in 1948, "was born in the crematoria, and woe to him who will try to stifle it" 

(Cette loi est nee dans les fours crematoires; et malheur a celui qui tenterait de l'etouffer). 

(Quoted by Boissarie in his introduction to Eugene Aroneanu, Le Crime contre l'Humanite, 1961.) 

The judgment against the "Operations Units" of 10 April 1948 (Einsatzgruppen Case), TWC IV, 411 ff. (p. 498) says on the same subject: 

"Although the Nuernberg trials represent the first time that international tribunals have adjudicated crimes against humanity as an international offence, this does not, as already indicated, mean that a new offence has been added to the list of transgressions of man.  Nuernberg has only demonstrated how humanity can be defended in court, and it is inconceivable that with this precedent extant, the law of humanity should ever lack for a tribunal. 

Where law exists a court will rise.  Thus, the court of humanity, if it may be so termed, will never adjourn." 

27. We have already dealt with the `principle of legality' that postulates "nullum crimen sine lege, nulla poena sine lege," and what has been stated above with respect to the municipal law is also applicable to international law.  In the judgment against the "Major War Criminals" it is stated (p. 219):

"In the first place, it is to be observed that the maxim nullum crimen sine lege is not a limitation of sovereignty, but it is in general a principle of justice." 

That is to say, the penal jurisdiction of a state with respect to crimes committed by `foreign offenders,' insofar as it does not conflict on other grounds with the principles of international law, is not limited by the prohibition of retroactive effect. 

It is indeed difficult to find a more convincing instance of just retroactive legislation than the legislation providing for the punishment of war criminals and criminals against humanity and against the Jewish People, and all the reasons justifying the Nuremberg judgments justify eo ipse the retroactive legislation of the Israel legislator.  We have already referred to the decisive ground of the existence of a `criminal intent' (mens rea), and this ground recurs in all the Nuremberg judgments.  The Accused in this case is charged with the implementation of the plan for the "Final Solution of the Jewish Question."  Can anyone in his right mind doubt the absolute criminality of such acts?  As stated in the judgment in the case of "Operations Units" (p. 459): 

"...There is (not) any taint of ex-post-facto-ism in the law of murder." 

The Netherlands Law of 10 July 1947 which amends the preceding law (of 22 October 1943) may serve as an example of municipal retroactive legislation, in that it added Article 27(A) which provides: 

"He who during the time of the present war and while in the forces of service of the enemy state is guilty of a war crime or any crime against humanity as defined in Art. 6 under (b) or (c) of the Charter belonging to the London Agreement of 8th August, 1945...shall, if such crime contains at the same time the elements of an act punishable according to Netherlands law, receive the punishment laid down for such act." 

On the strength of such retroactive adoption of the definition of crimes according to the Nuremberg Charter, the Higher S.S. and Police Leader in Holland, Rauter, was sentenced to death by a Special Tribunal, and his appeal was dismissed by the Special Court of Cassation (see LRTWC XIV pp. 89 ff).  The double contention nullum crimen, nulla poena sine lege was dismissed by the Court of Cassation on the grounds that the Netherlands legislator had abrogated this rule (which is expressly laid down in sec. 1 of the Netherlands Criminal Law) with respect to crimes of this kind, and that indeed that rule was not adequate for these crimes.  On p. 120 (ibid.) it is stated: 

"From what appears above, it follows that neither Art. 27(A) of the Extraordinary Penal Law Decree nor Art. 6 of the Charter of London to which the said Netherlands provision of law refers, had, as the result of an altered conception with regard to the unlawfulness thereof, declared after the event to be a crime an act thus far permitted;...these provisions have only further defined the jurisdiction as well as the limits of penal liability and the imposition of punishment in respect of acts which already before (their commission) were not permitted by international law and were regarded as crimes..." 

"Insofar as the appellant considers punishment unlawful because his actions, although illegal and criminal, lacked a legal sanction provided against them precisely outlined and previously prescribed, his objection also failed. 

"The principle that no act is punishable except in virtue of a legal penal provision which had preceded it, has as its object the creation of a guarantee of legal security and individual liberty, which legal interests would be endangered if acts about which doubts could exist as to their deserving punishment were to be considered punishable after the event. 

"This principle, however, bears no absolute character, in the sense that its operation may be affected by that of other principles with the recognition of which equally important interests of justice are concerned. 

"These latter interests do not tolerate that extremely serious violations of the generally accepted principles of international law, the criminal...character of which was already established beyond doubt at the time they were committed, should not be considered punishable on the sole ground that a previous threat of punishment was lacking.  It is for this reason that neither the London Charter of 1945 nor the judgment of the International Military Tribunal (at Nuremberg) in the case of the Major German War Criminals have accepted this plea which is contrary to the international concept of justice, and which has since been also rejected by the Netherlands legislator, as appears from Art. 27(A) of the Extraordinary Penal Law Decree." 

The courts in Germany, too, have rejected the contention that the crimes of the Nazis were not prohibited at the time, and that their perpetrators did not have the requisite criminal intent.  It is stated in the judgment of the Supreme Federal Tribunal 1 St/R 563/51 that the expulsions of the Jews, the object of which was the death of the deportees, were a continuous crime committed by the principal planners and executants, something of which all other executants should have been conscious, for it cannot be admitted that they were not aware of the basic principles on which human society is based, and which are the common legacy of all civilized nations. 

See also BGH 1 St.R 404/60 (NJW 1961, 276), a judgment of 6 December 1960 which deals with the murder of mentally deranged persons on Hitler's orders.  The judgment says inter alia  (pp. 277, 278) that in 1940, at the latest, it was clear to any person who was not too naive, certainly to anyone who was part of the leadership machinery, that the Nazi regime did not refrain from the commission of crimes, and anyone taking part in these crimes could not contend that he had mistakenly assumed that a forbidden act was permissible, seeing that these crimes violated basic principles of the rule of law. 

The Hebrew rule, "No one may be punished unless he has been forewarned," which corresponds to the principle of legality according to the Roman rule, hints at the importance of warning that a certain action is prohibited.  During the World War, Allied governments gave the Nazi criminals recurrent warnings that they would be punished, but these were of no avail.  Henry Stimson was right when he said, as cited in the judgment on "The Jurists" (p. 976): 

"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." 

28. Learned Counsel seeks to negate the jurisdiction of the state by contending that the crimes attributed to the Accused in Counts 1-12 had been committed, according to the indictment itself, in the course of duty, and constitute `Acts of State,' acts for which according to his contention, only the German state is responsible.  In this contention Counsel bases himself mainly on the theory of Kelsen, as explained in his works: 

"Collective and Individual Responsibility in International Law with Particular Regard to the Punishment of War Criminals" (1943), 33 California Law Review 530 ff; 

Peace through Law (1944) p. 71 ff; 

Principles of International Law (1952), p. 235 ff. 

Learned Counsel basis himself on the rule par in parem non habet imperium - that is to say, a sovereign state does not exercise dominion over, and does not sit in judgment against, another sovereign state - and deduces therefrom that a state may not try a person for a criminal act that constitutes an `act of state' of another state, without the consent of such other state to that person's trial.  In the view of Kelsen, only the state in whose behalf the `organ' (ruler or official) had acted is responsible for the violation, through such act, of international law, while the perpetrator himself is not responsible (with the two exceptions of espionage and war treason). 

The theory of `act of state' was repudiated by the International Military Tribunal at Nuremberg, when it said (pp. 222-223): 

"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 U.S. 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 states, or responsible officials in government departments, shall not be considered as freeing them from responsibility, or mitigating punishment.' 

"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." 

It is clear from the context that the last sentence was not meant, as Counsel contends, to limit the rule of the "violation of the laws of war" alone.  The court expressly said, as quoted above, that "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." 

Indeed, the theory of Kelsen and his disciples (See Defence Counsel's written submissions, Vol. I, pp. 532-539), and also the `limited' theories referred to by Learned Counsel (ibid.) are inadmissible.  The precedents adduced as authorities for this theory, e.g., Schooner Exchange v. McFaddon (1812) 7 Cranch 116, the memorandum of the American Secretary of State on the subject of the "Caroline," i.e., People v. McLeod (See Moore, Digest of International Law II, paragraph 175), and other precedents, do not fit the realities in Nazi Germany.  A state that plans and implements a "Final Solution" cannot be treated as par in parem, but only as a gang of criminals.  In the judgment on "The Jurists," it is said (p. 984): 

"The very essence of the prosecution case is that the laws, the Hitlerian decrees and the Draconic, corrupt and perverted Nazi judicial system themselves constituted the substance of war crimes and crimes against humanity, and that participating in the enactment and enforcement of them amounts to complicity in crime.  We have pointed out that governmental participation is a material element of the crime against humanity.  Only when official organs of sovereignty participated in atrocities and persecutions did those crimes assume international proportions.  It can scarcely be said  that governmental participation, the proof of which is necessary for conviction, can also be a defence in the charge." 

Drost says in his The Crime of State (Humanicide), pp. 310-311 (under the caption - "State Crime as Act of State"): 

"Any state officer irrespective of his rank or function would necessarily go unpunished if his acts of state were considered internationally as the sovereign acts of a legal person.  The person who really acted on behalf of the state would be twice removed from penal justice, since the entity whom he represented, by its very nature would be doubly immune from punishment, once physically and once legally.  The natural person escapes scot-free between the legal loopholes of state personality and state sovereignty.  But then, this reasoning in respect of these too much laboured juristic conceptions should not be carried into the province of penal law." 

"Immunity for acts of state constitutes the negation of international criminal law which indeed derives the necessity of its existence exactly from the very fact that acts of state often have a criminal character for which the morally responsible officer of state should be made penally liable." 

The contention of Learned Counsel that it is not the Accused but the state on whose behalf he had acted that is responsible for his criminal acts, is only true in its second part.  It is true that under international law Germany bears not only moral, but also legal, responsibility for all the crimes that were committed as its own `Acts of State,' including the crimes attributed to the Accused.  But that responsibility does not detract one iota from the personal responsibility of the Accused for his acts.  See Oppenheim-Lauterpacht, paragraph 156 b: 

"The responsibility of states is not limited to restitution or to damages of a penal character.  The state, and those acting on its behalf, bear criminal responsibility for such violations of international law as by reason of their gravity, their ruthlessness, and their contempt for human life place them within the category of criminal acts as generally understood in the law of civilized countries.  Thus if the government of a state were to order the wholesale massacre of aliens resident within its territory, the responsibility of the state and of the individuals responsible for the ordering and the execution of the outrage would be of a criminal character." 

"...It is impossible to admit that individuals, by grouping themselves into states and thus increasing immeasurably their potentialities for evil, can confer upon themselves a degree of immunity from criminal liability and its consequences which they do not enjoy when acting in isolation.  Moreover, the extreme drastic consequences of criminal responsibility of states are capable of modification in the sense that such responsibility is additional to, and not exclusive of, the international criminal liability of the individuals guilty of crimes committed in violation of International Law." 

See also ibid., paragraph 153a (p. 341): 

"...No innovation was implied in the Charter annexed to the Agreement of August 8, 1945, for the punishment of the Major War Criminals of the European Axis inasmuch as it decreed individual responsibility for war crimes proper and for what it described as crimes against humanity.  For the laws of humanity which are not dependent upon positive enactment, are binding, by their very nature, upon human beings as such." 

The repudiation of the contention as to an `Act of State' is one of the principles of international law that were acknowledged by the Charter and Judgment of the Nuremberg Tribunal, and were unanimously affirmed by the United Nations Assembly in its Resolution of 11 December 1946.  In the formulation (on the directions of the Assembly in its Resolution No. II 177) by the International Law Commission of the United Nations, of these acknowledged principles, this principle appears as Principle No. 3: 

"The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible government official does not relieve him from responsibility under international law." 

In Resolution No. 96(i) of 11 December 1946, too, in which the UN Assembly unanimously affirmed that `genocide' is a `crime under international law,' it is stated that "principal offenders and associates, whether private individuals, public officials  or statesmen" must be  punished for the commission of this crime, while the Convention for the Prevention and Punishment of Genocide expressly provides in Art 4: 

"Persons committing genocide or any of the other acts enumerated in Art 3 shall be punished whether they are constitutionally responsible rulers or private individuals." 

This article affirms a principle acknowledged by all civilized nations, in the words of the International Court of Justice in its Advisory Opinion referred to, and inasmuch as Germany, too, has adhered to this Convention, it is possible that even according to Kelsen, who requires an international Convention or the consent of the state concerned, there is no longer any ground for pleading an `Act of State.' But the rejection of this plea does not depend on the affirmation of this principle by Germany, for the plea had already been invalidated by the law of nations. 

For these reasons we dismiss the contention as to `Act of State.'

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