The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of Adolf Eichmann
Defence Submission 2
(Part 4 of 4)

Holocaust, Adolf Eichmann, Eichmann trial, holocaust, Jewish holocaust
National-Socialist legal writers also put up a most vigorous fight against the formal observance by the State of the rule of law in favour of a "substantive" rule of law.[67] In this context, only some typical examples - taken from a number of concurrent statements which defy any complete survey - can be referred to here as evidence for this trend. Thus, for instance, the following statement of Krauss, a disciple of Carl Schmitt, ought to be mentioned:[68]
"A State based upon the rule of law does not denote today - and neither did it in the nineteenth century - any genuine reality, but only the absence of substantial value in the organization of a State. The words, a State observing no `rule of law' (Rechtsstaat) belong to a category of bad combinations of words, and they have neither a substantial cognitive value, nor any fighting value at all...A State based upon the rule of law is a State of political weakness; it is part of the system of the Weimar Constitution, of a period when Germany had disarmed in every respect, morally as well as intellectually...If we retain the idea of the rule of law, we shall saddle the Fuehrer's State with relativism. For eventually `law' will then be defined as the restriction of leadership by its own volition, the observation of statutory law, as legality of substantive creativity..."
He continues that the idea of the liberal State based on the rule of law is an outdated expression which does not correspond to anything in the "reality of present times" and that the word Rechtsstaat is used in its old-fashioned meaning.
"When the State based on the rule of law is contrasted with the actual necessity of the State - and thereby with the State itself - and, based upon this point of departure, the question whether concentration camps are in conformity with the idea of the rule of law, is answered in the negative."[69]
In a postscript to Krauss's work, Carl Schmitt70 states that "the victory of the ideas `citizen' and `Rechtsstaat' coincides with the emancipation of the Jews" - a statement intended to bring the idea of the rule of law into disrepute.

Lange[71], too, considers the fact that the liberal idea of the rule of law has been promoted to a considerable extent by Jewish scholars as a grave defect. This author uses, for instance, the following expression intended to bring into disrepute a State based on the rule of law within its liberal meaning (which is already to be discredited by its designation as "statutory State"):

"Liberalism used the weapons of normative concepts and pseudo-values, coined and directed by that universal power, the press, which was controlled by a race without a land (p.5).

"National-Socialism has replaced the liberalistic worthless technique of life by clear values of life and led to victory ideas of duty and community which were pushed more and more into the background. Values like God and faith, people, race and homeland, honour and family rise high above the individual...(p.20).

"...the middle-class legalistic positivism which does violence to any decision of the Fuehrer by applying thereto the illusion of considerations peculiar to its way of decision-making and by approving the right of judicial review...(p.35).

" results from this very idea that its (the new State's) rights precisely are not limited by this barrier and do not come to an end there. Therefore, the concentration camp precisely constitutes, for the idea of community, a form of safeguarding justice just as do protective custody, arrest pending investigation, penal custody...(p.30).

"The empty statutory State which in the last resort is a State without justice equipped with the Stateless statutes, has been overcome by the National-Socialist State of justice. Thus the way from Liberalism to National-Socialism is tantamount to the way from statute to justice, from nation to people,from imperialism to peace,from sword to spade" (p.40).

Roland Freisler is to be called, probably, the most determined and the most aggressive adversary of the principle nulla poena sine lege. Time and again, Freisler72 attacked this principle as being incompatible with National-Socialist ideas of justice. The formulation of the question of the heading of one of the relevant articles, "Protection of the People or of the Offender?," is already typical of his views. Freisler was fully aware of the relation between the idea of the State based on the rule of law and the prohibition of retrospective application; therefore, he renews time and again the attacks of the liberal idea of the rule of law as such. A number of statements constituting a typical example of these attacks which were made in an article in the Deutsche Justiz (1937, p.151 ff) ought to be quoted here: Freisler begins his comments by attacks on the liberal idea of the rule of law.
"...that this `State based upon the rule of law' had become incapable of answering the question of the relationship between the individual and the State, the basic question of the interaction between society and its members, that life within the State had drifted towards anarchy in the course of individualistic atomization which had become more and more powerful.

"...Obviously this rule of law could not be the goal of the political structure aimed at by National-Socialism" as it (scilicet: NationalSocialism) does not permit formal considerations to become the straight-jacket of it looks again on the relationship between a member of the people and the people itself from a natural and biological perspective and not from a legalistic one, artificial and remote from life. Therefore, it cannot look upon the separation of powers as the essence of a wise organization of the State. On the contrary...It cannot provide for the control of leadership by its followers.

"Moreover, it cannot accept the consequences reached by the middle-class liberal State, based upon the rule of law, as for instance the guarantee of freedom for the dishonest contained in the sentence nullum crimen sine lege."[73]

For the healthy approach of ordinary people precisely requires punishment where the deed is morally reprehensible."[74]

The comments of the Minister of Justice Guertner follow exactly the same trend:
"Now in this respect National-Socialist ideas of justice and State voice their criticism. They firmly demand that every behaviour which ought to be punished shall also be met with due retribution, that nobody shall succeed to escape through the mesh of the law and that, rather, the perpetrator of any deed which ought to be punished shall be awarded the punishment he deserves, regardless of the imperfection of the law. Therefore, the sentence nulla poena sine lege will be countered by the sentence "nullum crimen sine poena. National-Socialism establishes thereby a new sublime goal to criminal law: the realization of genuine justice."[75]
Freisler is also the author of the following sentence:
"The protection afforded by criminal law from wrongful deeds which ought to be punished, must not be left to limp behind the ingenious inventiveness of the enemies of the people; they rather have to know that by their acts they expose themselves to criminal sanctions, even if their wrongful deeds are clothed in forms which are not yet covered by statutory provisions."[76]
One would think that the legal approach to the principle nulla poena sine lege advocated by National Socialism not only in its writings, but also carried out by its adherents in practice, had not only caused political and moral condemnation in principle but had also given rise to that conviction that as a matter of method, this road is impassable. Therefore it is not only surprising, but startling to find in the first decision in criminal matters of the (German) Supreme Court for the British Zone, dated 4 May 1948, the following sentence:
"The fact that Law No. 10 of the Control Council to a certain extent (this refers to crimes against humanity) penalizes offences which at the time of their commission had not yet been made punishable, does not constitute an obstacle to its application...Such a provision is not unjust, and therefore a German judge does not need to feel a burden upon his conscience in applying this provision. Punishment with retrospective application is unjust if the offence at the time of the commission not only had not violated a statutory provision of criminal law, but if, in addition, it had not violated the code of morality. This does not apply in the case of crimes against humanity. In the opinion of all men feeling themselves bound by the rules of morality, a grave misdeed has been committed, and it would have been the duty of a State respecting the rule of law to make provision for its punishment. It is in line with the principles of justice to provide for a remedy of this defect in the execution of this duty by making a provision for punishment with retrospective effect. Moreover, this does not constitute a violation of the principle of a certainty of the law, but the restoration of its basis and prerequisites. The protection of wrongdoing is not the purpose of the certainty of the law."[77]
In its decision of 18 October, the Supreme Court added to these principles the following sentence:
"The offence penalized by Law No.10 of the Control Council as a crime against humanity had already at the time of its commission been an offence which ought to be punished in the opinion of all men feeling themselves bound to the rules of morality."[78]
Therefore, the power to punish is derived again from the conviction that the perpetrator ought to be punished. The coincidence between the terminology and the methods used by the Supreme Court and, for instance, by Guertner makes an ominous impression. It is hard to believe that Israel, by following the same line of thought, will enter into such a dubious area, as the German Supreme Court had done.

E: Nulla poena sine lege according to Israeli law

It has been shown that there are certain doubts whether Israel is bound by international law to respect the prohibition of retrospective application.

On the other hand,it must be stated that the municipal law of Israel provides for the prohibition of retrospective application and that an Israeli court is not empowered to convict the Accused Eichmann under the retrospective Nazi and Nazi Collaborators (Punishment) Law.

It is true that the prohibition of retrospective application is not entrenched in any Israeli constitutional law. However, it has to be emphasized that art. 13 sec. 7 of the Draft Constitution expressly provides for the prohibition of retrospective application. Certainly, the reason why the Constitution has not yet been adopted is not the fact that in the question of criminal statutes with retrospective effect differences of opinion have arisen which cannot be settled. The prohibition as framed by the Draft Constitution can therefore be considered as the expression of a principle being already at present part and parcel of Israeli law. This proposition is confirmed by the fact that Israeli criminal law has developed following the model of English criminal law - a law, which at least inasmuch as critical statutory law is concerned, recognizes the prohibition of retrospective application.

Conclusion of the Part 2.

The punishment of the Accused Eichmann under the provisions of the Nazis and Nazi Collaborators (Punishment) Law would be contrary to the prohibition of criminal statutes with retrospective effect and is therefore inadmissible.


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