Archive/File: people/e/eichmann.adolf/transcripts/Sessions/Session-003-04 Last-Modified: 1999/05/28 Attorney General: I wish only to add to my argument of this morning: If, according to the Statute of the International Court at the Hague (the same section 38 which I quoted) the writings of well-known publicists also have validity, then how much more so should we regard a recommendation of the International Law Commission of the United Nations, composed as it was of the most outstanding jurists representing the civilized peoples, as part of international law? And if this matter has not yet been converted into the text of the Charter or an official decision of the United Nations Assembly, at any rate one must certainly regard it as one of the sources of international law. Defence Counsel raised two arguments in principle against our law and against the trial of Eichmann according to it. Firstly - he says - there is here a retroactive criminal application and secondly, this is an extraterritorial enactment. If I had wanted to simplify my task, I would perhaps be satisfied with a very short reply: You, the judges of Israel, have to accept the law of the State as you find it, and you are not able to declare the law to be ultra vires. This, in fact, is what Dicey lays down in the principle I read out before the adjournment. But in view of the circumstances, may I be permitted to expand somewhat on the formulation of this argument and to reply in somewhat greater detail to the oral remarks which were made and also to some of the written ones I have managed to read. It is not my purpose to justify retroactive criminal legislation in general terms. And there is no need in this case to lay down a general rule concerning the principle "nullum crimen sine lege." By the way, we do not need to have this maxim in Latin words; it is to be found in our [Jewish] sources: "There can be no punishment unless there is a prior warning."{Gemara, Tractata Sanhedrin 56b} My contention is, and in this matter I am following the course of the general prosecution of the Nuremberg Trial, that the lex exists and is in effect, and that the legislation did not harm the principle "nullum crimen sine lege." The law was in force but they ignored it. They chose to break it - they preferred not to act according to its precepts. This still does not mean that the law was not right: and in connection with this matter the International Military Tribunal - and with the permission of the Court I shall return to the first volume of the Blue Series - on page 219 - says the following: "It was urged on behalf of the defendants that a fundamental principle of all law - international and domestic - is that there can be no punishment of crime without a pre_existing law. "Nullum crimen sine lege, nulla poena sine lege" It was submitted that ex post facto punishment is abhorrent to the law of all civilized nations, that no sovereign power had made aggressive war a crime at the time that the alleged criminal acts were committed, that no statute had defined aggressive war, that no penalty had been fixed for its commission, and no court had been created to try and punish offenders. In the first place, it is to be observed that the maxim "05nullum crimen sine lege" is not a limitation of sovereignty, but it is in general a principle of justice. To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighbouring states without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from being unjust to punish him, it would be unjust if his wrongs were allowed to go unpunished. Occupying the positions they did in the Government of Germany, the defendants, or at least some of them must have known of the treaties signed by Germany, outlawing recourse to war for the settlement of international disputes; they must have known that they were acting in defiance of all international law when in complete deliberation they carried out their design of invasion and aggression. On this view of the case alone, it would appear that the maxim has no application to the present facts." And so it is with us, Your Honours. The acts for which the Accused has been brought to trial are repugnant to all principles of law and morality. They are opposed to the elementary concepts of human society. And even if we suppose that the principle "nullum crimen sine lege" which is nothing more than a principle of justice, is opposed to the principle which is fundamental to the Nazi and Nazi Collaborators (Punishment) Law, or in all the other laws similar to it, in such cases where there is a clash of these principles, between the principle of law and the principle of justice, the law will prevail since there is another principle embodied in the principle of this law, no less just than "nullum crimen sine lege" - that those who commit crimes should not go unpunished. When the legislator has to choose between the two: to infringe the principle of nullum crimen sine lege and to enact a law which will subject offenders to the criminal law ex post facto, and between the possibility that unprecedented criminal acts will go entirely unpunished and the possibility of not being able to try them in any Court, in the event of a conflict between these two principles, the principle "let justice be done" shall prevail. I shall add another quotation from the report of the judgment in the Blue Series on pages 223 and 227: - "The Tribunal proposes, therefore, to deal quite generally with the question of War Crimes and to refer to them later when examining the responsibility of the individual defendants in relation to them. Prisoners of war were ill_treated and tortured and murdered, not only in defiance of the well-established rules of international law, but in complete disregard of the elementary dictates of humanity. Civilian populations in occupied territories suffered the same fate." What should we do if we are seeking to do justice in the abstract - despite my argument that the Court should always deal with the matter in the concrete and not in the abstract? Let us follow Defence Counsel and examine the Knesset's right to enact such a law, or the right of the Occupying Powers to enact the Law of Control No. 10 - for this, in fact, is what Defence Counsel is attacking. What should have been done? Should it have been said - seeing that there is the principle of nullum crimen sine lege- we have to shut our eyes and pass over it. Silence without any possibility of bringing to trial and inflicting punishment for all that our eyes have seen? Or should it have been said: Very well, there is the principle of nullum crimen sine lege, but there is an even more important principle: to do justice. I contend that the second principle ought to prevail, and it has in fact prevailed. It has prevailed in the dictate of international law and it has prevailed in the legislation of the Israel Knesset. In case No. 9 of the Subsequent Trials, known as the "Case of the Einsatzgruppen" over which the President of the Appeals Court of the State of Pennsylvania, Judge Musmanno, presided, the following remarks were made, in the fourth volume of the Green Series on pages 458-459: "Defence counsel have particularly thrust at Control Council Law No. 10 with Latin maxim 'nullum crimen sine lege, nulla poena sine lege.' It is indeed fundamental in every system of civilized jurisprudence that no one may be punished for an act which was not prohibited at the time of its commission. But it must be understood that the lex referred to is not restricted to statutory law. Law does, in fact come into being as the result of formal written enactment and thus we have codes, treaties, conventions and the like, but it may also develop effectively through custom and usage and through the application of common law. The latter methods are not less binding than the former... "Of course some fields of international law have been codified to a substantial degree and one such subject is the law of land warfare which includes the law of belligerent occupation because belligerent occupation is incidental to warfare... "But the jurisdiction of this Tribunal over the subject matter before it does not depend alone on this specific pronouncement of international law. As already indicated, all nations have held themselves bound to the rules or laws of war which came into being through common recognition and acknowledgement. Without exception these rules universally condemn the wanton killing of noncombatants. In the main, the defendants in this case are charged with murder. Certainly no one can claim with the slightest pretense at reasoning that there is any taint of ex post factoism in the law of murder." And in the Case of the Judges - Nazi judges - in the same Volume 3 which I have already referred to, the following remarks appear on pages 974-975:- "The defendants claim protection under the principle 'nullum crimen sine lege, though they withheld from others the benefit of that rule during the Hitler regime. Obviously the principle in question constitutes no limitation upon the power or right of the Tribunal to punish acts which can properly be held to have been violations of international law when committed... "Under written constitution the ex post facto rule condemns statutes which define as criminal acts committed before the law was passed, but the ex post facto rule cannot apply in the international field as it does under constitutional mandate in the domestic field. Even in the domestic field the prohibition of the rule does not apply to the decision of common law courts, though the question at issue be novel. International law is not the product of statute for the simple reason that there is as yet no world authority empowered to enact statutes of universal application. International law is the product of multipartite treaties, conventions, judicial decisions and customs which have received international acceptance or acquiescence. It would be sheer absurdity to suggest that the ex post facto rule, as known to constitutional states, could be applied to a treaty, a custom or a common law decision of an international tribunal or to the international acquiescence which follows the event. To have attempted to apply the ex post facto principle to judical decisions of common international law would have been to strangle that law at birth. As applied in the field of international law, the principle 'nullem crimen sine lege' received its true interpretation in the opinion of the IMT in the case versus Goering et al..." To the same effect we quote the distinguished statesman and international authority, Henry L. Stimson: "A mistaken appeal to this principle has been the cause of much confusion about the Nuremberg trial. It is argued that parts of the Tribunal's Charter, written in 1945, make crimes out of what before were activities beyond the scope of national and international law. Were this an exact statement of the situation, we might well be concerned, but it is not. It rests on a misconception of the whole nature of the law of nations. International law is not a body of authoritative codes and statutes; it is the gradual expression, case by case, of the moral judgments of the civilized world. As such, it corresponds precisely to the common law of Anglo-American tradition. We can understand the law of Nuremberg only if we see it for what it is - a great new case in the books of international law. A look at the charges will show what I mean. "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.'{""The Nuremberg Trial: Landmark in Law" Foreign Affairs1, January 1947, pp.180, 184.} This question of retroactive criminal legislation also arose in Israel in Criminal Appeal 1/48, Sylvester versus the Attorney General: which appears in Pesakim 1 page 513, in which the Court refers to the English decision in the case of Phillips versus Eyre. I quote from paragraph 28: "The Judgment in Phillips versus Eyre, and the judgments referred therein affirm in my opinion the legitimacy of the laws, the validity of which was challenged by defence counsel, and certainly do not bring forward any arguments against their validity. What Judge Willis says in his judgment on page 27 can be summed up in the two following principles: (a) although retroactive legislation it not, generally speaking desirable, it must not be pronounced to be automatically and of necessity unjust. There are reasons - and these involve the security of the state - which can justify retroactive legislation, on the grounds that normal laws being enacted under normal circumstances and the needs of society cannot meet all the requirements of justice. (b) The decision on the question as to whether the circumstances warrant retroactive legislation, is in the hands of Parliament and not in those of the Courts; it is not their function to examine the necessity for such legislation." I believe that this summing-up provides the answer to Defence Counsel's argument. Further in this matter may I be permitted to refer to the article of Sheldon Gluck in the Harvard Review Vol. 59, Page 396. The title of the article is "The Nuremberg Trial and Aggressive War" and I want to quote two extracts - beginning at page 443:- "That which Hitler and his clique did not know was that while they would be given every reasonable facility for defence, they would not be permitted to escape personal liability by hiding their flagrant deeds behind the protective mantle of the convenient "State." Is their ignorance of that suddenly to transform them into innocents whose prosecution is frightfully unjust and fatally 'illegal,' and obnoxiously 'ex post facto' because it involves something of which they had no prior notice?" And on page 428: "It is perfectly obvious that the application of a universal principle of non-responsibility of a State's agents could easily render the entire body of international law a dead letter. For any group of criminally minded persons comprising the temporary Government that has seized power in a State could readily arrange to declare all of its violations of the law of nations - either in initiating an illegal war or in conducting it contrary to the laws and customs of recognized legitimate warfare - to be 'acts of State.' Thus all its treaty obligations and international law generally could be rendered nugatory; and thus the least law_abiding member of the Family of Nations could always have a weapon with which to emasculate the very law of nations itself. The result would be that the most lawless and unscrupulous leaders and agents of a State could never be brought to account. If such a State won an aggressive war, the politicians, militarists and industrialists who had planned, ordered or executed even the most flagrant atrocities and cynical breaches of international and municipal law, would of course not be subject themselves to prosecution in their own courts. And if they happened to lose - as Germany and its chronic militarists happened in our day twice to do - they would again be assured of personal immunity through application of an irrational technicality. Only the State would have to pay reparations; and that would mean that either the war-impoverished losing State would gradually wriggle out of its obligation and even transform it into a loss to the people of the victor State (as was true in Germany vis-a@65-vis the United States after the First World War); or many ordinary citizens of the losing State, who had nothing to do with initiating or conducting an unjust and ruthless war, would be penalized through heavy taxation to meet the fine imposed on their nation. The scoundrels at the top, who had actually plotted and carried out the breaches of international and municipal law, would conveniently escape with their lives and fortunes and conserve their strength for still another try at world domination - a process in which they have nothing to lose and everything to gain." To sum up, therefore, this legislation which proclaimed the horrible acts of the Nazis as crimes and gave them their correct appellation, is not retroactive legislation. It only appears to be so. It declares in the language of a law what was always law. But even if we were to accept the contention - for the sake of argument only - that this legislation is retroactive, it is nevertheless just. And the justice embodied therein is stronger, more fundamental and more convincing than the justice entrenched in the principle "nullum crimen sine lege." The Court will find a detailed analysis of this reasoning in another collection of judgments of war criminals. This time I refer to the well-known British collection entitled Law Reports of Trials of War Criminals. This one is in 15 volumes, but not 15 books - merely a few thin volumes, some of them bound together. The last volume contains books 13, 14 and 15. In this volume the Court will find an analysis of the precept "nullum crimen sine lege" in all the various trials of the IMT cases - Hostages, Flick, I. G. Farben, High Command and the Einsatzgruppen. Presiding Judge: Is this a judgment? Attorney General: No - it is an analysis by the editor of the collection in which he reviews, at the end, the main defence arguments that were submitted in the various trials. The Court will also find there what was said by the Dutch Court of Cassation in the trial of the war criminal Rauter in the same context. And I shall refer the Court, without reading it, to what is said on pages 166-170. I shall only read the concluding paragraph of the summing-up on page 170: "The view of the problem most commonly adopted seems, however, to be that since the rule against the enforcement of ex post facto law is in essence a principle of justice it cannot be applied in war crime trials where the ends of justice would be violated by its application." Accordingly I ask you not to accept the submission of Defence Counsel that our law is contrary to the principles of international law. And I ask you to reject the argument that this Court has no authority to judge because the indictment charges the Accused in a way which is in violation of the law. The contrary is true: the law gives expression to the lofty principles of meting out justice. The second argument of the defence sounds something like this: The Accused did not commit crimes on your soil, did not harm your State or its citizens, because you were not in existence at the time when he perpetrated those acts which you ascribe to him: therefore you do not have the right to try him - for two reasons: Firstly because he was brought here forcibly, and secondly because your law which purports to be an extraterritorial law is contrary on this point to the principles of international law. On the first point I have already spoken, yesterday, and I only want clearly to differentiate between two different arguments which - it seems to me - were mixed up in the submission of Defence Counsel. There is no connection between the issue of bringing a man within the jurisdiction of a country by force, and the extraterritorial issue. If we assume for a moment that our law is void because it is exterritorial...
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