28 NISSAN 5721 (14 April 1961)

Presiding Judge: I declare the fifth session open. The Attorney General may continue his argument.

Attorney General: May it please the Court. I have already in previous sessions, replied to most of Defence Counsel's oral and written submissions and arguments. To the extent that Defence Counsel relies on the minority opinion in the Nuremberg judgments and on the views of those few authors in whose eyes the Nuremberg principles are still a matter of controversy, I have only the following to say: At the heavy cost of millions of souls, international law has made a breakthrough and finally, even if belatedly, laid down its principles in writing. It did not renew anything, but simply formulated them. And this Court - of the nation which was the first to proclaim in human history "they shall beat their swords into ploughshares" - this Court will not lend its hand to turning the clock back, to nullifying the achievements which the human race accomplished after two world wars in one and the same generation. Meanwhile the principles of the Nuremberg trials have found their way into those charters and international treaties which I have already mentioned. I have not seen a single judgment since the War in which the Court refused to take notice of, and act in conformity with, those principles. The State of Israel will not be the one and only country to do so.

And now with somewhat more detail on one argument which I have already dealt with but which necessitates a more specific reply in the light of the written argument, and that is the argument of "Act of State." This argument covers twenty pages and more of the written submissions.

Presiding Judge: Is that not Kelsen's theory?

Attorney General: Kelsen's theory. And this is how Defence Counsel sums it up on page thirty-five of his argument:

"It follows, therefore, from this paragraph that the principle of 'Act of State' denies any competence to the State of Israel. Any judicial process against Eichmann will, therefore, be a departure from international law."

"The principle of International Law, which under certain circumstances, protects the representatives of a state, cannot be applied to acts which are condemned as criminal by international law. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings."

Attorney General: Yes, but Defence Counsel says that Kelsen did not change his mind even in the 1952 edition. He still stands by the doctrine that there is no common denominator amongst the Family of Nations in international criminal procedure, and that each one should go his own way according to his own justice and his own laws. Kelsen still does not acknowledge the great achievement of the judgment of 1 October 1946, and he is amongst those who query that ruling, possibly to this day - I do not know about his recent publications. But his is one of the few individual voices, and the balance in international legal discussions is decisively in favour of the Nuremberg principles. It is so in international treaties and in international legal literature; and if the Court would look at what Oppenheim says today in his second volume - this for the time being in its seventh edition only, but it also goes back to the year 1952 - the Court would see that Oppenheim rejects Kelsen's idea. I read from page 566, paragraph 251: "In contradistinction to hostile acts of soldiers by which the latter do not lose their privilege of being treated as lawful members of armed forces, war crimes are such hostile or other acts of soldiers or other individuals as may be punished by the enemy on capture of the offenders. They include acts contrary to international law perpetrated in violation of the law of the criminal's own State, such as killing or plunder for satisfying private lust and gain, as well as criminal acts contrary to the laws of war committed by order on behalf the enemy State. To that extent the notion of war crimes is based on the view that States and their organs are subject to criminal responsibility under International Law." And on page 568:

"The fact that a rule of warfare has been violated in pursuance of an order of the belligerent Government or of an individual belligerent commander does not deprive the act in question of its character as a war crime; neither does it, in principle, confer upon the perpetrator immunity from punishment by the injured belligerent. A different view has occasionally been adopted in military manuals and by writers, but it is difficult to regard it as expressing a sound legal principle."

Judge Halevi: Mr. Attorney General, does the whole idictment deal with the War period or are there also details prior to the War of 1939?

Attorney General: There are details preceding the War period. I shall reach these presently, your Honour. If your Honour is asking me, I am prepared to reply immediately although it interrupts my main argument on this point.

Judge Halevi: Because the authorities relate to the War.

Attorney General: Not all the authorities relate to the War. The authority of the International Military Tribunal does relate to the War, but the authorities of the Green Series which is based on Law No. 10 of the Control Council does not relate solely to the question of the War, but there occurred an interesting incident of a comma and a semicolon in the London Charter, which led to a difference between the Russian text and the English text in the definition of crimes against humanity. The English text reads as if only such acts as were connected with war crimes were also crimes against humanity; and in a special accord signed between the powers this version was accepted for crimes against humanity. But already the I.M.T. itself had dealt with conspiracy to make war, also in the period which preceded 1 September 1939, and it found the major war criminals guilty of such conspiracy also in respect of their acts which preceded the declaration of the Second World War. But it is true that in the case of crimes against humanity it limited itself to the War period only, because of that difference between a comma and a semicolon which the Court will find in the course of the Moscow Declaration, the London Agreement and the Nuremberg Charter, in Volume Three of the Green Series.

Presiding Judge: I think we have a local decision on this point - I think of Judge Lamm.

Attorney General: We do, but I go further and say that the Law of the Control Council had already not been adversely affected by that fault in punctuation and furthermore the Nazis and Nazi Collaborators (Punishment) Law 5710-1950 is not linked specially to the War period but applies to the whole period of the Nazi regime, and it represents an Israeli contribution to the filling of that void of which I have already spoken at length; the legal vacuum that the Nazis created, deliberately and maliciously, to cover up their crimes.

From the point of view of Israel's internal law, the defence of an "Act of State" finds expression in Section 19 of the Criminal Code Ordinance of 1936, in both its parts. It is this section that gives justification for criminal acts...

Presiding Judge: Mr. Hausner, is this relevant to the matter being discussed now - does our internal law concern the matter being discussed?

Attorney General: Yes - I say that section 19 does not apply. This is what the legislator stipulated in the Nazis and Nazi Collaborators (Punishment) Law in this way, as it were, it introduced into our law the same provision which was inserted into the London Agreement, namely that Heads of State, officials and agents of the State should bear responsibility. I say that the exclusion of section 19 for the purposes of the Nazis and Nazi Collaborators (Punishment) Law is equivalent to introducing that same positive provision into that legislation, making the agents of the State responsible - despite the fact that they could claim that they performed their acts in consequence of their official duties. Perhaps I may analyse this argument if I have not explained it sufficiently.

Presiding Judge: I understand. I simply have some doubts. Possibly they wanted to abolish the restrictions contained in section 19 itself. Section 19 is limited.

Attorney General: We do not have the defence of an "Act of State" in Israel law except in accordance with section 19. This is the justification - that a man can say "I acted in order to execute a particular law"- that is Section 19(a), or "in order to execute a particular order, a lawful instruction which I received"- that is Section 19(b).

Judge Raveh: Mr. Hausner, are you actually suggesting that we deal with this question and take a decision on it without having heard proof as to the facts?

Attorney General: This of course would be my alternative reply. But I submit that also for the purposes of the preliminary discussion and assuming that Defence Counsel will succeed in proving that everything done by the Accused was done by virtue of orders, even then that is no defence and that is no justification and he cannot derive any help from it. We shall prove to you that he departed from the limits of his instructions, and that he was much more extreme, much more obdurate, much more enthusiastic in the extermination of the Jews than was required by the orders he received.

Judge Halevi: This is premature at this stage.

Attorney General: We shall prove this even if Defence Counsel manages to establish that all that Adolph Eichmann did was only within the limits of his instructions. I want to say further: The deletion of Section 19 for the purposes of the Nazi and Nazi Collaborators (Punishment) Law, which is the effect of Section 8 of that Law, which states specifically that Section 19 of the Criminal Law shall not apply, denies to him and withholds from him the possibility of such a defence.

Judge Raveh: So then what do we have to lay down at this stage - when we have to decide the question of competence?

Attorney General: It must be laid down that the question of an "Act of State" is no defence, and makes no difference at all.

Judge Halevi: Defence Counsel is not arguing at this stage that this is a defence, a defence on the merits, but that this negates the jurisdiction, and that to the extent that the Israeli law does not admit this defence, this in the opinion of Defence Counsel would be contrary to international law. Therefore, there is no need now to go into the facts and the internal Israel law.

Attorney General: I understand this. But he is saying: You should not have enacted such a law, the Knesset of the sovereign State of Israel had no right to pass the law as a whole, and even more so had no right to insert Section 8.

Presiding Judge: You are only showing us now what Section 8 is.

Attorney General: Precisely. I shall show you what the Israel law is. And I shall show you that Section 8 is in accordance with international law and with the trend of the law of nations.

In his book War Criminals, their Prosecution and Punishment (1944), Sheldon Gluck (Professor of Criminal Law and Criminology at Harvard University), while dealing with the argument of "Act of State" for the purpose of these crimes, writes on page 134:

"So runs the argument. But the examination of the Act of State theory demonstrates its artificiality, legalistic nihilism and inapplicability, when dealing with the effective enforcement of the laws and customs of warfare."

Attorney General: He quotes an adjoining paragraph, but this makes no difference. I maintain that Sheldon Gluck set out the correct law. And if we look at what American military tribunals, which were only called military, decided in regard to the same law...

Presiding Judge: On page 30 of Defence Counsel's arguments you will find the words: "artificiality, legalistic nihilism and inapplicability."

Attorney General: Yes, he quotes later, in the following section, from page 139 and hence I have relied more on that passage. It is clear that there is an artificiality in this argument, since, if such a defence were accepted, under the conditions of a dictatorship such as Germany, there could only have been one accused, and that would be Hitler, and since that man is no longer alive, all the rest of those who are accused of perpetrating war crimes could say: "Our hands did not shed this blood and our eyes did not behold, since he was the only one authorized to give orders, and we all were his soldiers who were ordered to submit and to obey."

Judge Halevi: Not even he. As Head of State he, too, was immune.

Attorney General: And he could also have been immune according to the second doctrine of "Act of State," namely that the Head of State, the sovereign, has immunity. But I am not required at this time to deal with the subject of to what extent the Head of State is immune or not. International jurists have queried this ever since Napoleon was exiled to Elba. There are those who think that it is possible to take action against a Head of State, but I do not have to go into this. It is not Adolf Hitler who is sitting before you, but Adolf Eichmann. If we were to accept the theory of "Act of State" as a defence, then anyone who carried out Hitler's orders could justify himself for the most terrible crimes. The conscience of the world shrinks from this.

This is what an American military tribunal had to say in Trial No 4 - the concentration camp case, United States versus Pohl. This is to be found in the Green Series in Volume 5, on page 968:

"The Germans had become so accustomed to regimentation and government by decree that the protection of individual human rights by law was a forgotten idea. The fact that the people of the Eastern territories were torn from their homes, families divided, property confiscated, and the able-bodied herded into concentration camps, to work without pay for the perpetrators of these outrages - all this was complacently justified because a swollen tyrant in Berlin had scribbled "HH" on a piece of paper. And these are the men who now keep repeating: "nulla poena sine lege."

"This disgraceful chapter in the history of Germany has been vividly portrayed in the judgment of the International Military Tribunal."

"Nothing can be added to that comprehensive finding of facts, in which this Tribunal completely concurs. From it we see that the unholy spectacle of six million human beings deliberately exterminated by a civilized state whose only indictment was that its victims had been born in the wrong part of the world of forbears whom the murderers detested.

Never before in history has man's inhumanity to man reached such depths."

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