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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