Case Digest: Attorney General of Israel v. Eichmann Trial Court Decision 36 Intl. L. Rep. 5 (Israel, Dist. Ct. Jerusalem 1961)

   Public International Law | The Universality Principle

Facts: 

• Adolf Eichmann, a high-ranking SS officer, played a significant role in planning and executing the persecution of Jews across multiple countries during World War II.
• After the war, he fled to Argentina under an alias but was kidnapped by Israeli agents in May 1960.
• Argentina protested to the Security Council about the violation of its sovereignty, and though not demanding Eichmann's return, requested Israel to provide appropriate reparation.
• Eichmann was tried in Israel under the Nazi Collaborators Law and found guilty. His conviction was upheld by the Supreme Court of Israel, leading to his execution on May 31, 1962.

Issue:

• Whether the prosecution of the accused in Israel following his  abduction from a foreign country conflicts with international law and exceeds the jurisdiction of the Court.

Defense:

• From the point of view of international law, the power of the State of Israel to enact the Law in question or Israel’s “right to punish” is based, with respect to the offences in question, on a dual foundation: 
• the universal character of the crimes in question, and 
• their specific character as intended to exterminate the Jewish people.
• Delicta juris gentium
• crimes struck at the whole of mankind and shocked the conscience of nations, which are grave offenses against the law of nations itself.

Ruling:

• The crimes created by the Law and of which the appellant was convicted must be deemed today to have always borne the stamps of international crimes, banned by international law and entailing individual criminal liability. It is the particular universal character of these crimes that vests in each State the power to try and punish any who assisted in their commission. . . . [Reference the Genocide Convention and the Nuremberg judgment].
• ... As is well known, the rules of the law of nations are not derived solely from international treaties and crystallized international usage. In the absence of a supreme legislative authority and international codes, the process of its evolution resembles that of the common law;... its rules are established from case to case, by analogy with the rules embodied in treaties and in intentional custom, on the basis of the “general” principles of law recognized by civilized nations,” and in the light of the vital international needs that impel an immediate solution. A principle which constitutes a common denominator for the judicial systems of numerous countries must clearly be regarded as a “general principle of law recognized by civilized nations.” ... Customary international law is never stagnant, but is rather in a process of constant growth....
• As to the features which identify crimes that have long been recognized by customary international law,... they constitute acts which damage vital international interests ... they impair the foundations and security of the international community; they violate universal moral values and humanitarian principles which are at the root of the systems of criminal law adopted by civilized nations. The underlying principle in intentional law that governs such crimes is that the individual who has committed any of them and who, at the time of his act, may be presumed to have had a thorough understanding of its heinous nature must account in law for his behavior. It is true that intentional law does not establish explicit and graduated criminal sanctions; that there is not as yet in existence either an intentional Criminal Court, or intentional machinery for the imposition of punishment. But, for the time being, intentional law surmounts these difficulties ... by authorizing the countries of the world to mete out punishment for the violation of its provisions. This they do by enforcing these provisions either directly or by virtue of the municipal legislation which has adopted and integrated them.
• The classic example of a “customary” international crime ... is that of piracy jure gentium. ... Another example ... is that of a “ war crime “ in the conventional sense. ... the group of acts committed by members of the armed forces of the enemy which are contrary to the “’laws and customs of war.” individual criminal responsibility because they undermine the foundations of intentional society and are repugnant to the conscience of civilized nations. When the belligerent State punishes for such acts, it does so not only because persons who were its nationals ... suffered bodily harm or material damage, but also, and principally, because they involve the perpetration of an intentional crime in the avoidance of which all the nations of the world are interested....
• In view of the characteristic traits of international crimes and the organic development of the law of nations — a development that advances from case to case under the impact of the humane sentiments common to civilized nations, and under the pressure of the needs that are vital for the survival of mankind and for ensuring the stability of the world order it definitely cannot be said that when the Charter of the Nuremburg International Military Tribunal was signed and the categories of “war crimes” and “crimes against humanity” were defined in it, this merely amounted to an act of legislation by the victorious countries...
• The interest in preventing and imposing punishment for acts comprised in the category in question especially when they are perpetrated on a very large scale — must necessarily extend beyond the borders of the State to which the perpetrators belong and which evinced tolerance or encouragement of their outrages; for such acts can undermine the foundations of the international community as a whole and impair its very stability.
• If we are to regard customary international law as a developing progressive system, the criticism becomes devoid of value.... Ever since the Nuremberg Tribunal decided this question, that very decision must be seen as a judicial act which establishes a “precedent” defining the rule of international law. In any event, it would be unseemly for any other court to disregard such a rule and not to follow it. ..
• If there was any doubt as to this appraisal of the ‘“Nuremberg Principles’ as principles that have formed part of customary international law since time immemorial,” such doubt has been removed by ... the United Nations Resolution on the Affirmation of the Principles of International Law Recognized by the Charter and Judgment of the Nuremberg Tribunal and that affirming that Genocide is a crime under intentional law ... and as [is seen] in the advisory opinion of 1951 ... the principles inherent in the [Genocide] Convention — as distinct from the contractual obligations embodied therein — had already been part of customary intentional law at the time of the shocking crimes which led to the Resolution and the Convention...
• The crimes established in the Law of 1950 ... must be seen today as acts that have always been forbidden by customary international law — acts which are of a “universal” criminal character and entail individual criminal responsibility. ... [T]he enactment of the Law was not, from the point of view of international law, a legislative act that conflicted with the principle nulla poena or the operation of which was retroactive, but rather one by which the Knesset gave effect to intentional law and its objectives....
• It is the universal character of the crimes in question which vests in every State the power to try those who participated in the preparation of such crimes, and to punish them therefor...
• One of the principles whereby States assume, in one degree or another, the power to try and punish a person for an offence he has committed is the principle of universality. Its meaning is, in essence, that that power is vested in every State regardless of the fact that the offence was committed outside its territory by a person who did not belong to it, provided he is in its custody at the time he is brought to trial. This principle has wide support and is universally acknowledged with respect to the offence of piracy jure gentium.... [One view] holds that it cannot be applied to any other offence, lest this entail excessive interference with the competence of the State in which the offence was committed. 

Conclusion:

• International crimes involve acts damaging vital international interests, violating universal moral values, and humanitarian principles, holding individuals accountable under international law.
• Despite the absence of an international criminal court, nations are authorized to enforce provisions against international crimes through their domestic legislation.
• Acts constituting international crimes extend beyond a single state's borders, affecting the international community's stability, warranting punishment irrespective of the perpetrator's nationality or the state's tolerance.
• The universal character of these crimes empowers every state to try and punish those involved in their preparation, invoking the principle of universality beyond territorial limits, applicable in certain cases such as piracy jure gentium.