Archive/File: people/e/eichmann.adolf/transcripts/Sessions/Session-004-01
Last-Modified: 1999/05/28

Session No. 4

26 Nissan 5721 (12 April 1961)

Presiding Judge:  I declare the fourth session open. Will
the Attorney General please continue his argument.

Attorney General:  Before I go on I would like to return a
moment to the judgment in the "Lotus" case. I am afraid that
a misunderstanding may have arisen out of my reply to the
question of His Honour Judge Halevi. The majority opinion in
the "Lotus" case was a single one, consisting of one uniform
formulation. The dissenting judgments - these were the ones
that came to different conclusions for differing reasons,
each of them according to its own viewpoint. If my reply
this morning was understood to mean that the majority judges
also reached their conclusion for differing reasons, I
should like to put the issue correctly, for it was not so.

The majority judgment was a single decision which, although
it was adopted by the casting vote of the President of the
Court, was nevertheless a single decision. Amongst these
judges there were no differences of opinion. There were
differences of opinion amongst the dissenting judges and
each one approached the problem from his own individual
angle.

While I am dealing with the "Lotus" case, perhaps I may draw
the Court's attention to the remarks of the Swedish judge,
Nyholm, who was one of the dissenting judges. The Court will
find them on page 63: "International Law is not  static but
develops all the time." Indeed, I have already shown to what
extent Judge Nyholm was right, for international law,
particularly in regard to the territorial principle,
continually undergoes change as we have already seen in a
comparison of various developments.

In the United States also, which apparently rigidly
preserved the territorial principle in legislation and
jurisdiction, there were serious inroads in this theory even
before the United States actively entered into the process
of punishing the Hitlerite criminals. I would refer here to
the article of Professor Lawrence Preuss, of the University
of Michigan, published in Grotius Society - Transactions of
the year 1944, Problems of Peace and War, Vol. 30, page 184.
The article is lengthy and with the Court's permission I
shall read only its beginning and its end. This is what
Professor Preuss says at the beginning of his article:

     "It is commonly asserted that the exclusive
     territoriality of the criminal law is the fundamental
     principle which distinguishes the Anglo-American
     conception of jurisdiction from that which prevails in
     countries which follow the tradition of Roman Law. This
     generalization, like so many that seek to draw a sharp
     distinction between the so-called Anglo-American and
     continental schools of International Law is misleading,
     in that it tends to over-simplification of a complex
     problem and results at best in half-truth. The
     territorial principle is basic to the common law, but
     it has in practice undergone so many exceptions that it
     is inaccurate to ascribe it without numerous
     qualifications to the British and American legal
     systems."

And this is how he concludes on page 209:-

     "The dogmatic statement of the strict territorial
     principle viewed as an ineluctable consequence of the
     theory of sovereignty and without reference to the many
     modifications which it has undergone in practice is
     responsible for the common attempts to draw a sharp
     contrast between the Anglo-American and the continental
     conceptions as to the criminal competence of states. A
     more careful study of the interpretation and
     application of the territorial principle would show
     that the breach between the two systems is not so
     great, and that it has been virtually bridged by means
     of the broad interpretation given to the objective
     principle in the Anglo-American system. A clear
     realization of these facts should serve to withdraw the
     discussion of jurisdiction from the spheres of logic
     and of sovereignty. It should furthermore remove
     certain obstacles to a fuller cooperation by the United
     States in international movements for the repression of
     crimes, movements which have up to this time been
     opposed by adherence of the strict territorial theory
     which they conceived alone to be in conformity with
     international law."

The article is devoted to an examination of the various
exceptions - the "qualifications," as the writer describes
them.

And indeed, we know that by signing the London Charter,
America actively joined the system of legislation and
jurisdiction in both ex post facto  and exterritorial
questions.

Presiding Judge:  Are you referring to the United States?

Attorney General:  Yes - the United States of America. But
the punishment of war criminals was not the only subject for
the exterritorial nature of the legislation. There were many
countries which for various reasons or for the sake of
various purposes, laid down in their criminal codes
exterritorial regulations concerning certain crimes. We
shall submit to the Court an exact list and the detailed
sections. It will suffice here to read out the names of the
countries: Austria, the Soviet Union, Germany.

Presiding Judge:  Would you kindly repeat what these
countries enacted?

Attorney General:  I am quoting the names of the states
which extended exterritorial validity to various sections in
their domestic law...

Presiding Judge:  What we call "offences committed abroad?"

Attorney General: Offences committed abroad - exactly. I
want to show that Israel is not the only country to have
done so, but that today it is the necessity of the times in
many different countries which in order to ensure the
security of the state, the security of the population, the
security of their economy, have provided that the arm of the
state is able to inflict punishment for acts committed
beyond the territorial boundaries as well. The Court will
encounter such legislation in the criminal law of Austria,
Soviet Russia, Germany, Italy, Denmark, Holland, Finland,
Czechoslovakia, Switzerland, Brazil and France. We shall
submit a detailed list of such enactments.

Presiding Judge:  Is this an exhaustive list?

Attorney General:  No, this is a list which we compiled
after preliminary research.

Presiding Judge:  You could have added the Ottoman Law which
is closer to us from many points of view.

Attorney General:  I shall obviously have to mention the
State of Israel shortly, in this instance, but we wanted to
show that we are in good company with many countries, which
for one reason or another, and not necessarily in the recent
past, found it necessary to lay down regulations for the
punishment of acts committed beyond the borders of the
State. Here in Israel, too, explicit or general effect has
been given to laws having an exterritorial application. At
this point I would mention, without quoting, the case of
Lahis versus the Minister of Defence, High Court 27/28
Pesakim A 236. May I be permitted to read an extract from
High Court Case 100/157, Weiss versus the Inspector General
of Police, Piskei Din 12, page 179 and page 188. I read from
the judgment of the President of the Court, His Honour Judge
Landau:

     "We return therefore, to the general basic principles
     which we have set out before, following the judgment in
     the Amsterdam case, that every law possesses
     territorial validity, unless its content warrants
     otherwise, either specifically or in its general
     implication, and that the intention to depart from the
     territorial principle can also be gathered from the
     general trend of the law as it emerges from the
     totality of its provisions, or from the nature of the
     provision of the law which is under consideration."

May I say that the Court at the time when it gave the
judgment, still had to contend with article 38 of the
Order_in Council, which was then still valid, and it had to
decide as it did in the face of the provision saying that
the Courts shall have jurisdiction "in all matters and over
all persons in Palestine." And yet it was essential to find,
nevertheless, when the law required it, how to give it
exterritorial validity. Today we are not confronted with
this  difficulty since by virtue of the Courts Law,* {*The
Courts Law,  5717-1957}  article 38 was repealed and is no
longer effective. Furthermore, the law under which the
Accused is being tried, is not an Ordinance of the Mandatory
period which has to be interpreted according to the Order-
in_Council, but it is a law of the sovereign State of
Israel, which is to be interpreted as such. And if such is
the case regarding ordinary exterritorial legislation, it is
all the more so as regards the punishment of criminals whose
acts constitute a crime according to the principles of
international law. On this question I submit: Nazi criminals
are to be judged as enemies of the human race hostes humani
generis and whoever lays his hands on them and arrests them
is competent to judge them like pirates or slave traders or
white slave traffickers. I quote from Vattel's famous
treatise The Law of Nations, or the Principles of Natural
Law. He is, of course known as one of the fathers of
International Law. I quote from Volume 3 of the Carnegie
Institute Edition, on page 92:

     "If a person has been exiled or banished from his
     country because of some crime, the Nation in which he
     takes refuge has no right to punish him for the offence
     committed in a foreign country; for nature only confers
     upon men and Nations the right to punish to be used for
     their defence and security; whence it follows that we
     can punish only those who have done us an injury.

     But this principle also makes it clear that while the
     jurisdiction of each State is in general limited to
     punishing crimes committed in its territory, an
     exception must be made against those criminals who, by
     the character and frequency of their crimes, are a
     menace to public security everywhere and proclaim
     themselves enemies of the whole human race. Men who by
     profession are poisoners, assassins, or incendiaries
     may be exterminated wherever they are caught; for they
     direct their disastrous attacks against all Nations, by
     destroying  the foundation of their common safety. Thus
     pirates are hanged by the first persons into whose
     hands they fall. If the sovereign of the country in
     which crimes of this nature have been committed
     requests the surrender of the perpetrators for the
     purpose of punishing them, they should be turned over
     to him as being the one who has first interest in
     inflicting exemplary punishment upon them; and as it is
     proper that the guilty should be convicted after a
     trial conducted with due process of law, we have
     another reason why criminals of this class are
     ordinarily delivered up to the States in which the
     crimes have been committed."

Concerning crimes of this nature, Blackstone says in his
Commentaries Book 4, 12th edition:

     "Lastly, the crime of piracy, or robbery and
     depredation upon the high seas, is an offence against
     the universal law of society, a pirate being, according
     to Sir Edward Coke, hostis humani generis. As he has
     therefore renounced all the benefits of society and
     government, and has reduced himself afresh to the
     savage state of nature, by declaring war against all
     mankind, all mankind must declare war against him; so
     that every community has a right, by the rule of self-
     defence, to inflict that punishment upon him which
     every individual would in a state of nature have been
     otherwise entitled to do, for any invasion of his
     person or personal property."

In a recent study published in Paris, entitled La Repression
par les tribunaux allemands des crimes contre l'humanite et
de l'appartenance a une organisation criminelle en
application de la loi No. 10 du Conseil de Controle Allie
written by Dr. Henri Meyerowitz, the following remarks
appear in paragraph 88, pages 163-166:

     "The universal jurisdiction, the criminal competence
     which has been discussed so far was the competence of
     the State or States having a direct connection with the
     crime, the country of the agent or the country which
     has been harmed through the violation of its
     territorial criminal laws, whether by an offence beyond
     its borders against its nationals, its interests or
     against persons entitled to its protection. But in the
     case of war crimes, international law does not
     recognize that the states concerned have the exclusive
     right to punish. The basis of the principle of the
     universal competence of all countries to impose
     punishment is an old one. This is how Grotius defined
     it (De jure belli ac pacis): 'It should be understood
     that kings and all those having sovereign powers in
     general are entitled to punish not only for offences
     against themselves and their nationals, but also for
     those crimes which have no specific application to
     them; those that consist of a gross violation of the
     law of nature or the law of nations in respect to
     anyone. I say 'in respect of any one' and not only in
     respect of their subjects'."

Thus far, the quotation from Grotius. Dr. Meyerowitz
continues by saying:

     "It is well-known that international law adopted the
     system of universal competence in what related to the
     prosecution of the crime of piracy. It did so on the
     basis of this conception of piracy as a crime involving
     universal competence to punish. There is no general
     principle at all of international law limiting this
     competence to punish, in regard to war criminals, to
     the law or a judge of the locus delicti. The rules of
     the law of war, as they were formulated in Anglo-Saxon
     countries, lay down that the right to punish war
     criminals belongs to the party in whose hands the
     accused are to be found, independently of the site of
     the crime or of the nationality of the criminal or of
     the victim. Here, too, it is possible to notice the
     link existing between the theory of judicial competence
     and that of legislative competence.
     
     "In the same way international law does not prevent a
     party to the war from trying war criminals whose
     victims are not its nationals. Any such restrictions in
     favour of the territorial judge or the national judge
     of the victims, or of the Courts of war-time Allies or
     an international Court arise from directives which have
     been agreed upon, such as the Moscow Declaration or the
     London Charter or Control Council Law No. 10.
     
     "After the Second World War a large number of trials
     were held in Europe which were not within the framework
     of the International Military Tribunal Law No. 10, and
     also in the Far East, and the principle of
     international competence was applied. One may point
     firstly to the proceedings that took place before the
     American and the British Military Tribunals in regard
     to cases conducted outside the territory of the judge's
     country but whose victims were subjects of that
     country. These cases can be considered to be related to
     the passive principle. But evidently it would be more
     exact to regard them as an application of the principle
     of universality, of the right of punishment, if we take
     note of the definition of war crimes applying to these
     cases - a definition which relates neither to the place
     where the crime was committed nor to the nationality of
     the victim. It should be pointed out that in many such
     trials the principle of passive competence took
     precedence over the territorial principle, even where
     the site of the crime was in the country of an ally
     such as France, Norway, Holland, Belgium or China.

     "Here are several clear examples of universal judicial
     competence which was assumed by British or American
     tribunals. A British military court, sitting at Alnelo
     in Holland, convicted Germans of two war crimes
     perpetrated in Holland, one against a British prisoner
     of war, and the other against a Dutch citizen. One of
     the accused was convicted of this latter crime only. In
     a case considered by a Military Tribunal in Hamburg,
     the offence was an act of criminal complicity. Whereas
     the site of the complicity in crime was in Hamburg, the
     place of the main crime - which was not considered at
     all at the trial - was in Poland. The victims were
     nationals of Allied countries, not British citizens. In
     the trial of concentration camp personnel at Bergen-
     Belsen who were tried by a British Court, amongst the
     victims whose names were mentioned in the indictment,
     were only two British subjects and a number of
     nationals of other countries, including Hungarians and
     one Italian.
     
     "We may also refer here to judgments issued by British
     Courts in Singapore: war crimes committed in Indo-China
     by a Japanese against American prisoners of war; war
     crimes committed in Germany by Germans against Polish
     children, war crimes committed in Rome against Italian
     hostages. No less significance attaches to the cases
     which were tried by American Military Tribunals. For
     example, in the trial of those who were responsible for
     the Hadamar Sanatorium which was heard by a military
     commission in Wiesbaden, the victims were several
     hundred Polish and Soviet nationals, not citizens of
     the United States of America. Nor were the victims of
     the concentration camp in Dachau United States
     citizens."

Meyerowitz concludes with the following remarks:

     "These many consistent and clear cases prove that
     international law recognizes, in regard to
     international competence in the matter of war crimes,
     side by side with the territorial principle and the
     principle protecting nationals, a third principle as
     well: the universal right of punishment. But a state in
     whose hands the accused has fallen ought to waive this
     competence, which it has assumed for itself, if in
     accordance with international agreements extradition
     has been applied for by the country of the locus
     delicti or by the country of which the victim was a
     subject."

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