Practice Relating to Rule 151. Individual Responsibility
Section A. Individual criminal responsibility
Israel’s Nazis and Nazi Collaborators (Punishment) Law (1950) provides:
A person who has committed one of the following offences –
(1) done, during the period of the Nazi régime, in an enemy country, an act constituting a crime against the Jewish people;
(2) done, during the period of the Nazi régime, in an enemy country, an act constituting a crime against humanity;
(3) done, during the period of the Second World War, in an enemy country, an act constituting a war crime,
is liable to the death penalty.
In its judgment in the Eichmann case
in 1961, Israel’s District Court of Jerusalem rejected arguments that the acts of which Eichmann was accused constituted acts of State for which Germany alone was responsible. The Court relied on the repudiation of the doctrine of act of State, stating that this had been acknowledged by, inter alia
, the 1945 IMT Charter (Nuremberg) and the Nuremberg judgments, by the US Military Tribunal’s decision in the Altstötter case (The Justice Trial)
, by UN General Assembly Resolution 96 (I) and by Article 4 of the 1948 Genocide Convention.
The Court quoted the US Supreme Court judgment in the Quirin case, stating: “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.” It went on to state:
It is true that under international law Germany bears not only moral, but also legal, responsibility for all the crimes that were committed as its own “acts of State”, including the crimes attributed to the accused. But that responsibility does not detract one iota from the personal responsibility of the accused for his acts.
Referring to Article 4 of the 1948 Genocide Convention, the Court noted:
This Article affirms a principle recognized by all civilized nations … and inasmuch as Germany, also, has adhered to this Convention, it is possible that even according to Kelsen – who requires an international convention or the consent of the State concerned – there is no longer any basis for pleading “act of State”. But the rejection of this plea does not depend on the affirmation of this principle by Germany, for the plea had already been invalidated by the law of nations. For these reasons we reject the plea of “act of State”.
In the Eichmann case
in 1962, Israel’s Supreme Court upheld the lower court’s decision. In a part of the judgment dealing with the question of whether Israel’s Nazis and Nazi Collaborators (Punishment) Law of 1950 was in conformity with principles of international law, the Supreme Court held: “The crimes created by the Law and of which the appellant was convicted must be deemed today as having always borne the stamp of international crimes, banned by the law of nations and entailing individual criminal responsibility.”
In the part of the judgment dealing with the character of international crimes, it went on to affirm its “view that the crimes in question must today be regarded as crimes which were also in the past banned by the law of nations and entailed individual criminal responsibility” and stated as to the “features which identify crimes that have long been recognized by customary international law” that:
These include, among others, the following features: these crimes constitute acts which damage vital international interests; they impair the foundations and security of the international community; they violate the universal moral values and humanitarian principles that lie hidden in the criminal law systems adopted by civilized nations. The underlying principle in international law regarding such crimes is that the individual who has committed any of them and who, when doing so, may be presumed to have fully comprehended the heinous nature of this act, must account for his conduct.
As to individual responsibility for war crimes “in the conventional sense”, the Supreme Court held:
It will be recalled that the reference here is to a 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 deemed to constitute in essence international crimes; they involve the violation of the provisions of customary international law which obtained before the Hague Conventions of 1907, the latter merely “declaring” the rules of warfare as dictated by recognized humanitarian principles. Those crimes entail individual criminal responsibility because they challenge the foundations of international society and affront the conscience of civilized nations. When a 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 which all the nations of the world are interested in preventing.
The [1945 IMT Charter (Nuremberg)], with all the principles embodied in it – including that of individual responsibility – must be seen as “the expression of international law existing at the time of its creation; and to that extent (the Charter) is itself a contribution to international law”.
The outcome … is that the crimes set out 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.
In another part of the judgment dealing with the submission of the defendant that his acts had constituted acts of State, the Supreme Court held:
The contention of counsel for the appellant is … that the acts done by his client for the realization of the “Final Solution” had their origin in Hitler’s decision to put that plan into effect and consequently they were purely “Acts of State”, responsibility for which does not rest on the appellant.
We utterly reject this contention, as did the District Court … There is no basis for the doctrine when the matter pertains to acts prohibited by the law of nations, especially when they are international crimes of the class of “crimes against humanity” (in the wide sense). Of such odious acts it must be said that in point of international law they are completely outside the “sovereign” jurisdiction of the State that ordered or ratified their commission, and therefore those who participated in such acts must personally account for them and cannot shelter behind the official character of their task or mission, or behind the “Laws” of the State by virtue of which they purported to act. Their position may be compared with that of a person who, having committed an offence in the interests of a corporation which he represents, is not permitted to hide behind the collective responsibility of the corporation therefor. In other words, international law postulates that it is impossible for a State to sanction an act that violates its severe prohibitions, and from this follows the idea which forms the core of the concept of “international crime”, that a person who was a party to such a crime must bear individual responsibility for it. If it were otherwise, the penal provisions of international law would be a mockery … Indeed, even before the Second World War the defence of “Act of State” was not regarded as an adequate defence to the charge of an offence against the “laws of war” (a “conventional” war crime) … The plea of “Act of State” is rejected.
In 1950, during a debate in the Sixth Committee of the UN General Assembly on the International Law Commission’s work on the Nuremberg Principles, Israel declared that the principles in question “had become a constituent part not only of universal international law, but also of the law of the United Nations”.