Archive/File: people/e/eichmann.adolf/transcripts/Appeal/Appeal-Session-07-03
Last-Modified: 1999/06/15

Be that as it may, this distinction, too, loses its force in
this Appeal, since the Court found (paragraph 206 of its
Judgment) that

"all acts of persecution, deportation and murder in which
the Accused took part, as we have found in discussing Crimes
against the Jewish People and against Humanity, also
constitute War Crimes within the meaning of Section 1(a)(3)
of the Law, as far as they were committed during World War
II, and the Jews, who were the victims of these acts,
belonged to the population of the countries conquered by the
Germans and the other Axis States."

(3) As to the fourth category - `Membership of a Hostile
Organization' - the Court did not, for the purpose of the
conviction, content itself with the fact that the Appellant
was a member of the Nazi organizations in question, but also
based the conviction on the additional fact that, as such,
the Appellant participated in a criminal operation which was
expressly pronounced by the Nuremberg Tribunal to be a crime
within the meaning of the Charter, that is, the crime of the
extermination of Jews during the war years (paragraphs 214,
215).

All this goes to show that the above-mentioned categories of
crimes, especially the first three, are interdependent, and
we may, therefore, for the purpose of our reasoning at this
stage, group them within the inclusive category of `Crimes
against Humanity.'  It must be emphasized that they are all
crimes that demand mens rea on the part of the perpetrator.

11. The first proposition.  Our view that the crimes in
question must be seen today as crimes which in the past,
too, were banned by the Law of Nations and entailed
individual criminal liability, is based upon the following
reasons:

(a) As is well known, the rules of the Law of Nations are
not derived solely from international treaties and from
crystallized international usage.  In the absence of a
supreme legislative authority and international codes, the
process of its evolution resembles that of the common law;
in other words, its rules are fashioned piecemeal, by
analogy with the rules embedded in treaties and custom, on
the basis of "general principles of law recognized by
civilized nations," and in the light of the vital
international needs that impel towards an immediate
solution.  A principle which constitutes a common
denominator for the judicial systems of numerous countries
must clearly be regarded as a "general principle of law
recognized by civilized nations."  This is not the place to
deal exhaustively with this wide theme; to elucidate our
view we confine ourselves here to citing a few excerpts from
the writings of eminent international jurists, these being
themselves an important auxiliary source of the principles
inherent in the law of nations.  When international
tribunals are confronted with a `novel case,' wrote
Lauterpacht in his Functions of Law in the International
Community:

"They may proceed either by analogy with specific rules of
international law, or by recourse to general principles of
international law...(or) by shaping a legal rule through the
process of judicial reconciliation of conflicting legal
claims entitled to protection by law...(or) by a
consideration of the larger needs of the international
community."

And he added:

"It happens frequently that when an international tribunal
is confronted with a seemingly novel situation, although
there is no rule of international law directly applicable to
the case before the court, international law regulates
expressly some similar situation.  It is to these rules that
the tribunal has recourse in dealing with a case primae
impressionis."

Stone, too, wrote (op. cit., p. 369):

"...International law resembles an uncodified common law
system...development is rather from case to case, though as
much on the customary as on the judicial level."

(See, in the same sense, Woetzel in Nuremberg Trials in
International Law, p. 115.)

All this means that customary international law is never
stagnant, but is rather in a process of constant growth, as
Sheldon Glueck stressed (in his article in the Harvard Law
Review, vol. 59, p. 414):

"... Customary international law...is as obviously subject
to growth as has been the law of any other developing legal
order, by the crystallization of generally prevailing
opinion and practice into law under the impact of common
consent and and the demands of general world security."

And on p. 418:

"Every recognition of custom as evidence of law must have a
beginning some time."

Noteworthy, too, is the explanation by that author (op.
cit., p. 110) that a general rule of law recognized by the
civilized nations does not simply mean:

"private law `writ large.'  It means that where a legal
principle is so generally accepted by various nations as to
be a common denominator of practically all civilized
systems, it is justifiably applicable also by an
international tribunal."

In view of the resemblance between the nature of common law
and that of customary international law, it would be
pertinent to quote here the famous dictum of Holmes (in his
book The Common Law, p. 1):

"the life of the law has not been logic: it has been
experience.  The felt necessities of the time, the prevalent
moral and political theories, intuitions of public policy,
avowed or unconscious...have had a good deal more to do than
the syllogism in determining the rules by which men should
be governed."

Compare the state of Lord Wright (in his introduction to his
book History of the United Nations War Crimes Commission
(1948), p. 8):

"International law...has grown and developed from the
workings of the moral impulses and needs of mankind by a
sort of instinctive growth, as well as by edicts or decrees
or authoritative pronouncements...  Indeed, it is itself a
body of customary law.  Its dictates take shape and
definition particularly when acted upon and recognized by
the common consensus of mankind and are administered and
enforced by competent courts."

Finally, what has been said above applied with even greater
force to the criminal branch of international law which, it
is universally admitted, is as yet at the initial - one
might even say `primitive' - stage of its development.
Here, too, Glueck has aptly described the position when he
wrote (see his above-mentioned article, pp. 416-418):

"In the international field...as in the domestic, part of
the system of prohibitions implemented by penal sanctions
consists of customary or common law...

"During the early stage (or a particularly disturbed stage)
of any system of law - and international law is still in a
relatively undeveloped state - the courts must rely a great
deal upon non-legislative law, and thereby run the risk of
an accusation that they are indulging in legislation under
the guise of decision, and are doing so ex post facto.
Whenever an English common-law court for the first time held
that some act not previously declared by Parliament to be a
crime was a punishable offence for which the doer of that
act was now prosecuted and held liable, or whenever even a
court, for the first time more specifically than theretofore
defined the constituents of a crime and applied that
definition to a new case, the court in one sense `made law.'
Yet, fundamentally, it thereby did no violence to the
technique of law enforcement or the requirements of man-made
justice, unless it acted most unreasonably and
arbitrarily....

"It is true that the command which the accused was held to
have violated did not come directly and specifically from
the legislature or sovereign; but since the prohibition
represented the consensus of the people as contained in
customary usage, it contained enough of the imperative
element to warn its prospective violators, to impel judges
to recognize it as an existing part of the law of the land
and to hold its violators guilty of a crime.  So it is with
modern international common law ..."

(b) When we come to consider - with reference to the crimes
with which we are here concerned - how the method explained
in the excerpts set out above actually works in practice, it
becomes essential to dwell first on the features which
identify crimes that have long been recognized by customary
international law.  On doing so, we shall find that these
include, among others, the following features: They
constitute acts which damage vital international interests;
they impair the foundations and security of the
international community; they violate universal moral values
and humanitarian principles which are at the root of the
systems of criminal law adopted by civilized nations.  The
underlying principle in international law that governs such
crimes is that the individual who has committed any of them
and who, at the time of his act, may be presumed to have had
a thorough understanding of its heinous nature, must account
in law for his behaviour.  It is true that international law
does not establish explicit and graduated criminal
sanctions; that there is not as yet in existence either an
International Criminal Court, or international machinery for
the imposition of punishment.  But, for the time being,
international law surmounts these difficulties - which
themselves reflect its present low stage of development - by
authorizing the countries of the world to mete out
punishment for the violation of its provisions.  This they
do by enforcing these provisions either directly or by
virtue of the municipal legislation which has adopted and
integrated them.  Let us explain this by three
illustrations:

(1) The classic example of a `customary' international
crime, also mentioned by the District Court, is that of
piracy jure gentium.  A person who committed this crime,
said Judge Moore in his dissenting judgment in the Lotus
case (p. 70),

"is treated as an outlaw, as the enemy of all mankind -
hostis humani generis - whom any nation may in the interest
of all capture and punish.  Wheaton defines piracy by law of
nations as murder or robbery committed on the high seas by
persons acting in defiance of all law, and acknowledging
obedience to no flag whatsoever."

In the report submitted to the League of Nations by the
Committee for the Progressive Codification of International
Law, the emphasis was placed on the interests of world trade
which are endangered by that offence:

"It constitutes a crime against the security of commerce on
the high seas."

(Quoted from The Law of Nations by Briggs, 2nd edition, p.
390.)

Again, Robert Lansing (who was the American Secretary of
State during World War I), in his notes in the American
Journal of International Law (1921), p. 25, alluded to the
universal character of this crime (a "crime against the
world") and compared it with the slave-trade ("which is a
crime against humanity").

Important, too, are the remarks of Kelsen in his book
General Theory of Law and State (pp. 344-345) on the
principle of the individual responsibility borne by the
perpetrator of this offence, and the way in which
international law attains the object of punishing therefor:

"The sanction provided against piracy is not directed
against a state and, in particular, not against the state of
which the pirate is a citizen.  The sanction is directed
against a pirate as an individual who has violated
international law.  This sanction of international law is
executed according to the principle of individual
responsibility."

Also:

"The sanction itself, however, need not be determined by the
international legal order; it may be specified by the
national legal order which international law delegates to
this end."

(2) As an example of customary international law, an
instructive case came before an American court in 1784 in
which a person was tried for threatening to assault the
secretary of the French Diplomatic Mission (Respublica v. De
Longchamps, 1 Dallas 110).  In sentencing him to a fine and
imprisonment for this offence, Chief Justice McKean of
Pennsylvania said:

"The first crime in the indictment is an infraction of the
law of nations.  This law, in its full extent is part of the
law of this state, and is to be collected from the practice
of different nations and authority of writers.  The person
of a public minister is sacred and inviolable.  Whoever
offers any violence to him not only affronts the sovereign
he represents, but also hurts the common safety and well-
being of nations: - he is guilty of a crime against the
whole world ... You then have been guilty of an atrocious
violation of the law of nations."

(3) The last example - one which has closer relevance to our
case - is that of a `war crime' in the conventional sense.
It will be recalled that the reference here is to the group
of acts, committed by members of the armed forces of the
enemy, which are contrary to the `laws and customs of war.'
These acts are seen as constituting, in essence,
international crimes; they entail the violation of the
provisions of customary international law which preceded the
Geneva Conventions of 1907 and subsequent Conventions,
whereas such Conventions merely `declared' the rules of
warfare, as dictated by recognized humanitarian principles.
Those crimes entail individual criminal responsibility
because they undermine the foundations of international
society and are repugnant to the conscience of civilized
nations.  When the belligerent state punishes for such acts,
it does so not only because persons who were its nationals -
be they soldiers taken prisoner by the enemy or members of
the civilian population - suffered bodily harm or material
damage, but also, and principally, because they involve the
perpetration of an international crime in the avoidance of
which all the nations of the world are interested.  An
article by Lauterpacht, "Law of Nations and Punishment of
War Crimes" (British Yearbook of International Law, 1944,
vol. 21, p. 64) lends support to the above description of
crimes of this type:

"War criminals are punished, fundamentally for breaches of
international law. They become criminal according to the
municipal law of the belligerent only if their action finds
no warrant in, and is contrary to, international law.  When,
therefore, we say that the belligerent inflicts punishment
on war criminals for the violation of his municipal law, we
are making a statement which is correct only in the sense
that the relevant rules of international law are being
applied, by adoption or otherwise, as the municipal law of
the belligerent.  Intrinsically, punishment is inflicted for
the violation of international law."

On page 65 he referred to the provision of the Geneva
Convention No. IV, 1907, which imposed on the belligerent
state that had violated the terms of the Convention, the
obligation to pay indemnity for physical and material damage
caused by it.  That provision, he emphasized, did not
exclude the responsibility of the individual to account in
law for any violation by him of the rules of war or the
customary right of states to punish enemy individuals for
the violation of rules of war."

He added (ibid.):

"...the Hague Conventions...formulate and are largely
declaratory of the fundamental rules of warfare as directed
by generally recognized principles of humanity... In their
broad purpose...these international conventions are
expressive, in the words of the preamble of Hague Convention
No. IV, `of the principles of the law of nations, derived
from usages established among civilized peoples, from the
laws of humanity, and from the dictates of public
conscience'."

It was in the spirit of this approach that the United States
Supreme Court ruled in ex parte Quirin (1942, 87 L. ed. 3,
12, 13) that the accused were criminally liable for acts
contrary to the laws of war on the ground that these laws
were always recognized and applied as part of the law of
nations:

"from the very beginning of its history this Court has
recognized and 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 of enemy individuals.  By the Articles of War...Congress
has...exercised its authority to define and punish offences
against the law of nations by sanctioning, within
constitutional limitations, the jurisdiction of military
commissions to try persons for offences which, according to
the rules and precepts of the law of nations, and more
particularly the law of war, are cognizable by such
tribunals."

The Supreme Court reaffirmed this view in re Yamashita
(1945, 96 L. ed. 499, 504).

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