6.5 Authorities on 'individual responsibility' cited in judgement on the 'Eichmann Appeal'.

“(2) As an example of customary international law, an instructive case came before an American court in 1784 in which a person was tried for threatening to assault the secretary of the French Diplomatic Mission (Respublica v. De Longchamps, 1 Dallas 110). In sentencing him to a fine and imprisonment for this offence, Chief Justice McKean of Pennsylvania said:

"The first crime in the indictment is an infraction of the law of nations. This law, in its full extent is part of the law of this state, and is to be collected from the practice of different nations and authority of writers. The person of a public minister is sacred and inviolable. Whoever offers any violence to him not only affronts the sovereign he represents, but also hurts the common safety and well- being of nations: - he is guilty of a crime against the whole world ... You then have been guilty of an atrocious violation of the law of nations."

(3) The last example - one which has closer relevance to our case - is that of a ´war crime' in the conventional sense. It will be recalled that the reference here is to the group of acts, committed by members of the armed forces of the enemy, which are contrary to the ´laws and customs of war.' These acts are seen as constituting, in essence, international crimes; they entail the violation of the provisions of customary international law which preceded the Geneva Conventions of 1907 and subsequent Conventions, whereas such Conventions merely ´declared' the rules of warfare, as dictated by recognized humanitarian principles. Those crimes entail individual criminal responsibility because they undermine the foundations of international 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 - be they soldiers taken prisoner by the enemy or members of the civilian population - suffered bodily harm or material damage, but also, and principally, because they involve the perpetration of an international crime in the avoidance of which all the nations of the world are interested. An article by Lauterpacht, "Law of Nations and Punishment of War Crimes" (British Yearbook of International Law, 1944, vol. 21, p. 64) lends support to the above description of crimes of this type:

"War criminals are punished, fundamentally for breaches of international law. They become criminal according to the municipal law of the belligerent only if their action finds no warrant in, and is contrary to, international law. When, therefore, we say that the belligerent inflicts punishment on war criminals for the violation of his municipal law, we are making a statement which is correct only in the sense that the relevant rules of international law are being applied, by adoption or otherwise, as the municipal law of the belligerent. Intrinsically, punishment is inflicted for the violation of international law."

On page 65 he referred to the provision of the Geneva Convention No. IV, 1907, which imposed on the belligerent state that had violated the terms of the Convention, the obligation to pay indemnity for physical and material damage caused by it. That provision, he emphasized, did not exclude the responsibility of the individual to account in law for any violation by him of the rules of war or the customary right of states to punish enemy individuals for the violation of rules of war. He added (ibid.):

"...the Hague Conventions...formulate and are largely declaratory of the fundamental rules of warfare as directed by generally recognized principles of humanity... In their broad purpose...these international conventions are expressive, in the words of the preamble of Hague Convention No. IV, ´of the principles of the law of nations, derived from usages established among civilized peoples, from the laws of humanity, and from the dictates of public conscience'."

It was in the spirit of this approach that the United States Supreme Court ruled in ex parte Quirin (1942, 87 L. ed. 3, 12, 13) that the accused were criminally liable for acts contrary to the laws of war on the ground that these laws were always recognized and applied as part of the law of nations:

"from the very beginning of its history this Court has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals. By the Articles of War...Congress has...exercised its authority to define and punish offences against the law of nations by sanctioning, within constitutional limitations, the jurisdiction of military commissions to try persons for offences which, according to the rules and precepts of the law of nations, and more particularly the law of war, are cognizable by such tribunals."

The Supreme Court reaffirmed this view in re Yamashita (1945, 96 L. ed. 499, 504).

The international character of crimes of this type and the universal interest that sustains the object of imposing punishment for them were also stressed by Cowles in his article "Universality of Jurisdiction over War Crimes" (33 California Law Review 217) in the following words:

"...while the state whose nationals were directly affected has a primary interest, all civilized states have a very real interest in the punishment of war crimes. ´The unpunished criminal is itself a menace to the social order.' And an offence against the laws of war, as a violation of the law of nations, is a matter of general interest and concern...war crimes ´are offences against the conscience of civilized humanity'."

Eichmann v. the State of Israel:

Record of Proceedings on Appeal in the Supreme Court of Israel

Appeal Session 7: Judgement

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