The accused—biography, entry into custody and charges

At the conclusion of hostilities in Europe in May 1945, Eichmann held the rank of Lieutenant-Colonel or Obersturmbannführer in the Gestapo (Geheime Staatspolizei) or Secret State Police of the Third Reich. As such, his activities, or responsibilities if they can be so termed, were subsumed and directed under the auspices of the Reich Main Security Office (Reichssicherheitshauptamt) or RSHA, which was primarily concerned with the realization of the Final Solution. ⁹ Between 1942 and 1945 Eichmann directed Section IV B(4) of the RSHA, the division responsible for ‘Evacuations and Jews’, ¹⁰ a somewhat euphemistic departmental heading which failed to fully express the fact that Eichmann was an important component in the Nazi infrastructure for the transportation of millions of European Jews to concentration/death camps in Eastern Europe. However, that being said, as a Lieutenant-Colonel he was not considered of sufficient seniority to warrant inclusion in either the indictment of the International Military Tribunal (IMT) at Nuremberg or any subsequent indictment under Control Council Law No. 10.

While Eichmann evaded prosecution under the Nuremberg process, the IMT was far from silent with respect to his involvement in the machinery of the Holocaust. In fact, Eichmann appears on several occasions in the transcripts of the main proceedings and is mentioned on three occasions in the IMT Final Judgment. ¹¹ A number of witnesses testified as to his involvement in the destruction of European Jewry, most notably Captain (Hauptsturmführer) Dieter Wisliceny, who testified before the Tribunal on 3 January 1946. As the quoted passage below illustrates, Wisliceny’s testimony was both incriminating and shocking:

Lt. Col. Brookhart:

When did you last see Eichmann?

Wisliceny:

I last saw Eichmann towards the end of February 1945 in Berlin. At that time he said that if the war were lost he would commit suicide.

Lt. Col. Brookhart:

Did he say anything at that time as to the number of Jews that had been killed?

Wisliceny:

Yes, he expressed this in a particularly cynical manner. He said he would leap laughing into the grave because the feeling that he had 5 million people on his conscience would be for him a source of extraordinary satisfaction. ¹²

Eichmann was abducted in Buenos Aires by Israeli agents on 11 May 1960, an act clearly in violation of Argentinean sovereignty, which unsurprisingly gave rise to a very real diplomatic incident between the two states culminating in the passing of a ‘scolding’ United Nations Security Council Resolution. ¹⁵ He was detained for 1 week, interrogated ¹⁶ and transported (via a commercial flight ¹⁷ ) to Tel Aviv. ¹⁸ On 23 May, Israeli Prime Minister David Ben-Gurion informed the Knesset that, ‘a short time ago one of the greatest of the Nazi war criminals, Adolf Eichmann … was found by the Israeli security services’. ¹⁹ He commented further that he would ‘shortly be placed on trial in Israel under the law for the trial of the Nazis and their collaborators’. ²⁰

The law Ben-Gurion was referring to was the Nazi and Nazi Collaborators (Punishment) Law, 1950. Eichmann was charged with 15 counts falling under three headings: (i) crimes against the Jewish people as defined under Section 1(a); (ii) crimes against humanity as defined under Section 1(b); and (iii) membership in a criminal enemy organization contrary to Section 3 of the law. The definitions of the offences under the law were broadly derived from existing instruments relevant to international criminal law. ‘Crimes against the Jewish people’, which on the face of it appears to be an entirely new and unique offence, is in fact a particularization of Article II of the Genocide Convention of 1948: ‘“crime against the Jewish people” means any of the following acts, committed with intent to destroy the Jewish people in whole or in part …’. ²¹ However, it did develop the definition somewhat to include a reference to cultural genocide: Section 1(b)(6) refers to ‘destroying or desecrating Jewish religious or cultural assets or values’. ²² The definition of crimes against humanity under Section 1(b) of the law was closely modeled on Article 6(c) of the Charter of the IMT and Article 5(c) of Control Council Law No. 10, with a couple of exceptions: (i) it was not necessary to establish a nexus between the impugned acts and the armed conflict or other crimes committed under the law; and (ii) in terms of temporal jurisdiction, the law applied to acts committed during the entirety of the Nazi reign, i.e. stretching back to 1933. ²³ The definition of war crimes under Section 1 was likewise derived from the Charter of the IMT and the Control Council Law, with the narrowing exception that it did not extend beyond the enumerated categories of conduct to other violations of the law and customs of war. ²⁴ There are a host of issues which make the law somewhat irregular and apparently troubling from a human rights and rule of law perspective: namely, the law is retrospective, extra-territorial, has a flexible approach to the principle of double jeopardy or ne bis in idem, and carries the death penalty. These issues were raised by Eichmann and dealt with by both the District and the Supreme Court.

The proceedings—defence strategy

Eichmann was arraigned before the District Court of Jerusalem on 11 April 1961. However, given the enormous national and international interest in the case, the proceedings did not take place in their normal setting, but rather were housed in the Beit Ha’am community centre and theatre which had a capacity audience of over 1,000 persons. While Beit Ha’am was renovated to accommodate the requirements of a modern trial, the proceedings took on an essentially theatrical or dramatic context. ²⁵ The theatrical spectacle of the proceedings was only enhanced by the presence of the accused, who, flanked by two court guards, sat stage left, housed in a bulletproof glass booth throughout the proceedings. ²⁶ In response to each of the 15 charges, Eichmann stated rather ambiguously, ‘Not guilty in the sense of the indictment’. ²⁷ His lawyer, Dr. Robert Servatius, ²⁸ chosen by Eichmann and paid for by the state of Israel, attempted to clarify any ambiguity by stating, ‘Eichmann feels guilty before God, not before the law’. ²⁹ Over the course of the 14 weeks of the trial, the courtroom rarely descended into the condition of a ‘citadel of boredom’, characteristic of the Nuremberg proceedings. This was due in large measure to the pedagogic role assumed by the prosecution. It soon became clear through the extensive use of witness testimony—which had been something of a rarity at Nuremberg—that the process was to be as much about the sharing of individual survivor memory as it was about a clinical prosecution of the accused. Witness upon witness poured forth their personal stories of loss and survival, the details or circumstances of which, on the majority of occasions, were of little specific evidentiary value. ³⁰

Eichmann’s defence strategy was composed of a number of interweaving strands including, inter alia: (i) challenges to the compatibility of the 1950 Law and the proceedings in general with the principle of legality, or nullem crimen sine lege, i.e. its retrospective nature; (ii) the ability of the state of Israel to exercise jurisdiction over the alleged crimes given that they were not committed on its territory or against its citizens and which indeed were being prosecuted by a state that did not exist at the time of their commission; (iii) the impossibility for the three-judge bench of the District Court to remain impartial and ensure a fair trial; (iv) his illegal detention and transport into the custody of the state of Israel in violation of basic principles of public international law; (v) the conduct with which he was charged should be considered as acts of state; and (vi) irrespective of issues surrounding the legality of the proceedings, at a fundamental level he should be found not guilty on the charges as in all aspects of his conduct he had been merely faithfully and patriotically carrying out the orders of his superiors. Eichmann claimed repeatedly during the three weeks of his testimony that he was simply an ‘official preparing timetables for the trains which carried the deportees to the East from their various countries’, ³¹ that he was but a ‘“small cog” in the extermination machine’. ³²

Legal findings—their contribution to international law

The District Court found Eichmann guilty on all counts. However, it should be noted that with respect to counts 1–4 of the indictment relating to crimes against the Jewish people, the court ruled that he should be only found guilty of those acts committed after October 1941, the date on which they determined he became fully and explicitly aware of the plan to exterminate the Jews. He was sentenced to death by hanging. Eichmann appealed the conviction and sentence of the court on a number of grounds that had already been brought to the attention of court during the trial proceedings: ³³ namely, the court’s lack of jurisdiction, the inability of the bench to guarantee a fair and impartial process and the fact that he played only a minor role in the implementation of the final solution.

The legal challenges that Eichmann, or more accurately Servatius, made to the prosecuting law and process were based on questions of fundamental importance to the rule of law. It should be clear that they were not frivolous or deliberately disruptive, as is characteristic of a certain proportion of defence motions in contemporary international criminal trials. However, they were all ultimately unsuccessful.

Eichmann’s argument that the 1950 Law constituted retroactive criminal punishment in violation of the principle of legality and other international legal principles was roundly rejected by both the District and Supreme Court. Building on the findings of the IMT, the District Court stated, ‘… all of the above mentioned crimes constituted crimes under the laws of all civilized nations, including the German people, before and after the Nazi régime … [a] law which enables the punishment of Nazis and their collaborators does not “conflict”, by reason of its retroactive application, “with the rules of natural justice”… on the contrary, it gives reality to the dictates of elementary justice’. ³⁴ The Supreme Court commented further that in any event, the principle nullum crimen sine lege had not ‘yet become a rule of customary international law’. ³⁵

At a fundamental level, the Eichmann trial and the law on which it was based was an expression of Israel’s desire to exercise its right to universal jurisdiction over the crimes of the Holocaust:

The abhorrent crimes defined in this law are not crimes under Israeli law alone. These crimes, which struck at the whole of mankind and shocked the conscience of nations, are grave offences against the law of nations itself (delicta juris gentium). Therefore, so far from international law negating or limiting the jurisdiction of countries with respect to such crimes, international law is, in the absence of an International Court, in need of the judicial and legislative organs of every country to give effect to its criminal interdictions and to bring the criminals to trial. The jurisdiction to try crimes under international law is universal. ³⁶

The reliance of both courts on the doctrine of universal jurisdiction as the basis for the proceedings represents the true international legal legacy of the case. However, it is worth mentioning a number of issues which continue to be the source of significant debate. As noted above, the definition of ‘crimes against the Jewish people’ under the 1950 Law was closely derived from the Genocide Convention of 1948. If it was not obvious enough from the text, the District Court explicitly acknowledged that the provision was ‘defined on the pattern of the crime of genocide’, ⁴¹ as provided for in the Genocide Convention. With the prosecution’s reliance on universal jurisdiction, certain questions had be asked as to the applicability of this principle to the crime of genocide. Eichmann argued that Article VI of the Genocide Convention specifically precluded the exercise of universal jurisdiction over acts of genocide, stating as it does that, ‘[p]ersons charged with genocide or any of the other acts enumerated under Article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction’. ⁴² The District Court disagreed. Citing General Assembly Resolution 96(1) and the Advisory Opinion of the International Court of Justice on the question of Reservations to the Convention on Genocide, it found rather that the absence of a provision establishing universal jurisdiction was a ‘grave defect in the Convention’, likely ‘to weaken the joint effort for the prevention of the commission of this abhorrent crime’. ⁴³ Furthermore, this defect could not result in the conclusion that universal jurisdiction could not be exercised over the crime of genocide. ⁴⁴ This conclusion largely ignored the fact that, during the drafting of Article VI, the issue of universal jurisdiction was discussed at length and specifically rejected. ⁴⁵ Whether this interpretation is compatible with the object and purpose of the Convention is in significant doubt; however, what is clear is that it is not in accordance with the ordinary meaning of Article VI. ⁴⁶

With respect to Eichmann’s contention that his actions should be considered acts of state, the District Court determined that, ‘[i]t 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’. ⁴⁷ On the related contention that the acts were merely carried out in obedience to the orders of his superiors, the Supreme Court noted that Section 8 of the 1950 Law specifically removed the applicability of this argument as a complete defence to the charges and could only be considered as possible grounds for mitigation of punishment. This provision was entirely compatible with Nuremberg Principles. ⁴⁸

Neither the District Court nor the Supreme Court attached any importance to the manner in which Eichmann was brought into the custody of the state. At the commencement of proceedings, Israeli-Argentinian relations had been restored following the passing of United Nations Security Council Resolution 138 noting the infringement of Argentinian sovereignty and the issuance of a joint communiqué declaring the matter resolved. Argentinian sovereignty was the victim not the accused; in this respect the District Court noted that, ‘it is an established rule of law that a person being tried for an offence against the laws of a State may not oppose his trial by reason of the illegality of his arrest or of the means whereby he was brought within the jurisdiction of that State’. ⁴⁹

In supporting Eichmann’s conviction by the District Court in its judgment of 29 May 1962, the Supreme Court also confirmed the sentence of death. Eichmann, as well as a number of diverse interest groups who opposed the proceedings from the start, pleaded to Itzhak Ben-Zvi, the President of Israel, for mercy. ⁵⁰ On the evening of 31 May, Ben-Zvi formally rejected all pleas and Eichmann was hanged two hours later, his body was cremated and the ashes scattered in the Mediterranean. Eichmann remains the only person in Israeli history to be put to death on order of the state. ⁵¹ The legal legacy of the trial is vast and continues to be frequently cited in both domestic and international decisions relevant to international criminal law. However, perhaps more important is the didactic role that the proceedings have played in the preservation of Holocaust memory.

The accused—biography, entry into custody and charges

Nicholas ‘Klaus’ Barbie was born in Bad Godesberg, on the German–French border, in October 1913. An enthusiastic participant in the Nazi Youth movement, at the conclusion of his secondary education he carried this verve into the SS (Schutztaffeln) and the Gestapo, which he joined in 1935. With the occupation of the Netherlands in May 1940, Barbie was appointed to Section IV of the security police (Sicherheitsdienst) and the Security Service of the SS (‘the SD’) in Amsterdam. His primary tasks were to weed out and destroy any Resistance forces and to identify Jews for deportation and execution. ⁶⁰ In November 1942, he became head of the Gestapo in Lyons (holding the rank of Lieutenant or Obersturmführer) and was charged with complete suppression of the flourishing Resistance movement in the city. It is estimated that between November 1942 and August 1944—when Barbie was promoted to the rank of Captain (Hauptsturmführer) in the SS—over 4,000 individuals had been executed on his express orders and almost 8,000 deported to death camps. ⁶¹ Barbie’s reliance on torture in gathering information both on Jewish families and on the activities of the Resistance earned him the moniker ‘the Butcher of Lyons’, ⁶² an alias revised years later by Alain Finkelkraut, who designated him the ‘poor man’s Eichmann’. ⁶³ Heinous as these acts were, it was for the death of Resistance talisman Jean Moulin that Barbie was most notoriously remembered. ⁶⁴

By the end of 1944, Barbie had appeared on the United Nations List of War Criminals as War Criminal No. 239. ⁶⁵ Barbie’s post-war activities are narratively extraordinary, not to say embarrassing for a number of states. Between 1947 and 1951, Barbie was employed by the United States Counter Intelligence Corps (CIC) in West Germany and was actively engaged in searching for communists and Soviet agents despite the fact that the French authorities were very actively seeking his prosecution. The CIC protected Barbie during this time, concealed his activities from the French authorities and in 1951 provided him (and his family) with funds, false documentation and transit to Boliva. The full extent of American involvement in perpetuating Barbie’s impunity was revealed in the ‘Ryan Report’ commissioned by the then United States Attorney General. ⁶⁶ While Barbie remained elusive, in April 1952 and November 1954 he was charged and convicted in absentia for war crimes and sentenced to death by the Tribunal Permanent des Forces Armées de Lyon.

Barbie remained in Bolivia (and for certain periods in Peru) for more than 30 years, became a Bolivian citizen and a highly successful illegal arms trader or so-called Lord of War. He was a close confidant of successive Bolivian regimes and held the rank of honorary colonel in the Bolivian Army. ⁶⁷ The French authorities became aware of Barbie’s whereabouts during the 1960s and 1970s; however, due to the lack of an extradition agreement with Bolivia and the fact that Barbie had ingratiated himself with the Bolivian authorities, it was not possible to bring him into custody. ⁶⁸ The situation changed in 1982 with the election of socialist President Sile Zuazo, who, with the sweetener of a generous aid package from the Mitterrand government, agreed to deport— not extradite—Barbie. On 5 February 1983, Barbie was expelled from Bolivia on the grounds that he had entered the country under a false name. He was flown to Cayenne in French Guiana, whereupon he was arrested, spirited to France and imprisoned in Montluc prison in Lyons, the very site of his past brutalities. ⁶⁹ He was charged with 17 counts of crimes against humanity falling under the 1964 Law. ⁷⁰

The proceedings—defence strategy

Barbie was defended during the trial proceedings by Jacques Vergès, ⁷¹ a highly controversial French lawyer and veteran Marxist revolutionary, who transformed the proceedings into a public attack on French actions in Algeria and on his perception of Western Imperialism generally. ⁷² Leaving Vergès’ politicization of the process to one side, Barbie’s legal defence centered on two arguments: (i) he was the victim of an illegal extradition procedure and had been effectively kidnapped by the French authorities (in much the same way as Eichmann); and (ii) the proceedings were in violation of the principle of double jeopardy (ne bis in idem) as his activities during the period 1942–1944 had already been the subject of in absentia war crimes proceedings in 1952 and 1954, the convictions from which were statute barred as of November 1984 (citing the 20-year prescription rule for war crimes).

Barbie was in custody in Lyon for over four years before substantive proceedings against him commenced before the Cour d’assises du Rhône in May 1987 (these of course are distinguishable from proceedings addressing procedural and jurisdictional matters that had been ongoing since 1983). The 36 days of the trial dominated the French media; the Barbie trial was in effect to France what Eichmann had been to Israel, ⁷³ in that the proceedings played an important role in the revival of Holocaust, Vichy and Resistance memory. Barbie, however, was not the willing participant that Eichmann had been. On the third day of the trial, Barbie addressed the court stating:

Mr. Prosecutor, I would like to say that I am a Bolivian citizen and that if I am present here it is because I have been deported illegally … I place it fully in the hands of my lawyer to defend my honour in front of justice, despite the climate of vengeance [and] the lynching campaign set forth by the French media. ⁷⁴

Legal findings—issues of relevance to international law

The Cour d’assises du Rhône found Barbie guilty of all charges and sentenced him to life imprisonment. During the course of the proceedings several core aspects of the 1964 Law were subject to creative, highly innovative judicial interpretation. This was primarily the case with respect to the enumeration of the applicable definition of crimes against humanity. Of particular concern was whether or not acts committed against members of the Resistance were to be considered war crimes, crimes against humanity or (in certain circumstances) both. If they were designated as war crimes only, Barbie’s acts would be subject to the applicable statute of limitations, meaning, inter alia, that it would be not be possible to prosecute him for the death of Jean Moulin. A decision of the Indicting Chamber or Chambre d’accusation held just this on 4 October 1985. ⁷⁵ Based on an interpretation of Article 6(c) of the IMT Charter, it was determined that the Resistance was to be considered an organized fighting force not part of the civilian population. ⁷⁶ This interpretation, however, was overturned on appeal by the Court of Cassation, which stated that

Neither the driving force which motivated the victims, nor their possible membership of the Resistance, excludes the possibility that the accused acted with the element of intent necessary for the commission of crimes against humanity. In pronouncing as it did and excluding from the category of crimes against humanity all the acts imputed to the accused committed against members or possible members of the Resistance, the Chambre d’accusation misconstrued the meaning and the scope of the provisions listed in these grounds of appeal. ⁷⁷

Despite the weak foundations of the definition, the decision of the Court is noteworthy for the clear qualitative distinction it draws between war crimes and crimes against humanity:

[I]n contrast to crimes against humanity, war crimes are directly connected with the existence of a situation of hostilities declared between the respective States to which the perpetrators and the victims of the acts in question belong. Following the termination of hostilities, it is necessary that the passage of time should be allowed to blur acts of brutality which may have been committed in the course of armed conflict, even if those acts constituted violations of the laws and customs of war or were not justified by military necessity, provided that those acts were not of such a nature as to deserve the qualification of crimes against humanity. ⁸⁰

Addressing Barbie’s contention that he was illegally brought before the court, the Court of Appeal of Lyons made perhaps an inadvertent, but valuable statement that continues to be cited, relating to the applicability of the principle of universal jurisdiction to crimes against humanity. It stated:

[B]y reason of their nature, the crimes against humanity with which Barbie is indicted do not simply fall within the scope of French municipal criminal law, but are subject to an international criminal order to which notions of frontiers and extradition rules arising therefrom are completely foreign. ⁸²

Barbie appealed the judgment and sentence of the Cour d’assises du Rhône on some 14 grounds, all of which were rejected by the Court. He thus became the first person in French legal history to be convicted of crimes against humanity. He died in his cell in Montluc prison on 25 September 1991.

The accused—biography, entry into custody and charges

Imre Finta was born in 1912 and, after studying law, he joined the Royal Hungarian Gendarmerie, an armed paramilitary police force. He rose through the ranks, ultimately being promoted to Captain, and in 1944, was transferred to Szeged as Division Commander of Gendarmerie Investigations. ⁸⁵ Following the passing of the ‘Baky decree’ by the German-installed Hungarian government in April 1944 and the ghettoisation of the Hungarian Jews, Finta was responsible for the forcible detention of 8,617 Jews in the Szeged brickyards, their interrogation and eventual deportation. ⁸⁶ After the war, Finta reportedly spent 18 months in an American POW camp in Germany; in 1951, he emigrated to Canada and opened a restaurant in Toronto. ⁸⁷ He became a Canadian citizen in 1956.

In 1948, Finta was tried in absentia and convicted of ‘crimes against the people’ by a Hungarian court. ⁸⁸ In 1970, a general amnesty was issued which covered Finta’s conviction. Finta’s wartime activities were brought to the attention of the Canadian authorities, in part, because of two civil libel suits launched by Finta in 1983 against the head of the Canadian Holocaust Remembrance Association and the television network CTV, both of whom had issued publications linking Finta to Nazi war crimes. ⁸⁹ He was to drop both suits shortly after the commencement of the respective legal hearings, but shortly afterwards—and only three months after the adoption of the Canadian war crime provisions—Finta was indicted in Ontario and charged with unlawful confinement, robbery, kidnapping and manslaughter as crimes against humanity and war crimes under the Canadian Criminal Code. ⁹⁰

Proceedings—defence strategy

Finta was represented by Douglas Christie, who had also represented Ernst Zundel in his trial for Holocaust denial (during which he challenged the introduction of Nazi Concentration Camps on the grounds of hearsay since the unnamed narrators were not available for cross-examination, ⁹¹ ) He launched a spirited (though not uncontroversial) defence on a number of legal grounds. Christie challenged the war crimes provisions of the Criminal Code as, inter alia, a violation of the guarantee of equality before the law as provided for in the Charter of Rights and Freedoms, on the basis that Finta’s involvement in the deportation of Hungarian Jews to Auschwitz was similar to the deportation of Japanese citizens in Canada during World War II, yet the Criminal Code only covers acts or omissions performed by individuals outside Canada. ⁹² Christie alsocondemned the Criminal Code as unconstitutional on the basis that it amounted to retroactive criminal legislation. He argued that war crimes and crimes against humanity had not existed at the time relevant to the indictment, that the war crimes legislation violated the principle of extraterritoriality and that the evidence against Finta was of questionable value as it emanated from governments which were not regarded as free and democratic. During the jury trial itself, Christie chose not to call Finta to testify, at least in part ‘to avoid potentially damaging cross-examination’. ⁹³

In July 1989, Judge Callaghan of the Supreme Court of Ontario issued a decision on the pre-trial motions which upheld the constitutionality of the war crimes provisions of the Canadian Criminal Code and dismissed the defence objections. ⁹⁴ The decision stated that the effect of the war crimes provisions was retrospective, not retroactive; it ‘did not transform a formerly innocent act into a criminal offence, but changed the legal consequences of an existing offence’. ⁹⁵ Judge Callaghan rejected Christie’s argument that war crimes and crimes against humanity were not recognized as criminal offences prior to 1945, and quoted the IMT judgment in support of the finding that war crimes and crimes against humanity were offences under international law or general principles of law recognized by the community of nations by 1939. ⁹⁶ The argument that the Criminal Code was discriminatory and breached the equality provision of the Charter was also dismissed, on the basis that the treatment of Japanese citizens by the Canadian government, although unjust, was both distinguishable and ‘dramatically different’ from the treatment of Hungarian Jews. ⁹⁷ Judge Callaghan also invoked the principle of universal jurisdiction in rejecting the defence argument that the Criminal Code provisions constituted an unjustifiable exercise of extraterritorial jurisdiction. ⁹⁸

Legal findings—issues of relevance to international criminal law

There are a range of issues of import to international justice arising from the proceedings; however, this section will briefly focus on just one that had a direct bearing on Finta’s acquittal on all of the charges: the determination of the applicable mens rea or mental element for crimes against humanity. Supporting Presiding Judge Campbell’s instructions to the jury with respect to this issue, Supreme Court Justice Cory writing with the majority stated that ‘[t]he requisite mental element of a war crime or a crime against humanity should be based on a subjective test’. However, he added that ‘the mental element of crimes against humanity must involve awareness of the facts or circumstances which would bring the acts within the definition of a crime against humanity’. ⁹⁹ These elements are relatively uncontroversial, but significant concerns arose from the inclusion of the following additional requirement:

[T]he additional element is that the inhumane acts were based on discrimination against or the persecution of an identifiable group of people . … These elements must be established both in order for a Canadian court to have the jurisdiction to try the accused and in order to convict the accused of the offence. ¹⁰⁰

It is questionable whether the standard set by the majority was in conformity with customary international law at the time. Indeed, subsequent case law of the Yugoslavia Tribunal specifically rejected the requirement of proof of the presence of discriminatory intent for all crimes against humanity beyond that of the crime of persecution. ¹⁰³