Eichmann trial - The District Court Sessions








The Trial of Adolf EichmannSession 1(Part 4 of 5)


Thus far from the remarks of Professor Goodheart. And if the
remarks were valid there, they are all the more valid here, Your Honours. A
person cannot demand from you that you should be neutral in regard to the crime
of genocide. And if Defence Counsel thinks that there is any man in the world
who can be neutral in respect to to this crime, such a judge would be the one
who is not competent.
But it is possible to be just, even with such a grave crime. It is possible
to have a fair trial even when the judges are required to suppress within their
hearts their personal or national anguish, and to judge according to the
evidence which is before them. And only in this way do I ask you, Your Honours,
to judge.
Defence Counsel has mentioned a judgment of our Supreme Court. During the
recess I tried to find out to which of the two he was referring. Since the
sentence quoted was evidently not in a judgment of the present President of the
Supreme Court, but of its previous President. It seems to me, if I am not
mistaken, that Defence Counsel is referring to a decision in Various
Applications 3/50 which was published in the Judgments of the Supreme Court,
Vol. 4, on page 592 where the Accused: sought to disqualify the judge on the
ground that on a previous occasion he had not behaved properly in front of the
same judge and he was afraid that the judge would be prejudiced against him, the
accused.
Presiding Judge: Is that the Weinberg case?
Attorney General: Yes. The second case to which I thought the Defence
Counsel might possibly be referring by quoting an extract, is the case of
Trilfus vs. the Attorney General, Criminal Appeal 152/51 - Judgments Vol. 6,
page 17, in which our Court also laid down the principle that justice must not
only be done but must be seen to be done, and the facts are well-known. The
application was a claim for disqualification against a particular judge for a
particular act.
Presiding Judge: Mr. Hausner and Dr. Servatius - you will find
judgment given on the same point by our Supreme Court a few days ago, Gil Halls
vs. the Appeals Committee for Business Tax in Tel Aviv. It would be worthwhile
for you to study this judgment as well.
Attorney General: Thank you, Your Honour. I must admit that a few days
ago I was more involved in the preparation for this case than in studying
judgments. At any rate these arguments that were mentioned here do not have any
validity in disqualifying judges on the ground of their national affiliation,
which is the contention of Defence Counsel. I ask you not to accept it. If I
succeed in replying to the other arguments about competence, and I hope I shall
succeed, there is nothing wrong in the fact that a Jewish judge, an Israeli,
should judge the oppressor of his people. On the contrary, we can be thankful
for the fact that there is some place in the world, where Jews possess
sovereignty, courts, prosecuting machinery and the ability to place on trial a
man who committed crimes against this people. As I shall show the Court, a
tradition has developed in England and also in the United States according to
which the manner of bringing the Accused: into the area of jurisdiction is not
relevant to the question of competence. A violation of the sovereignty of a
state by an act of incarceration, arrest within its borders and the removal of a
person outside its territory can become an issue between states. And indeed they
did serve as the subject of a controversy between the State of Israel and the
Government of Argentina in the matter we are discussing.
But in all the authorities I shall quote forthwith it is laid down that it is
not the concern of the Accused: to complain about violation of the sovereignty
of another state. It is the concern of the state affected. From the point of
view of the Court before which a person is brought in accordance with an
indictment, the question of competence can arise in consequence of the
substantive law of the country of the trial, or in consequence of procedural
practices.
Adolf Eichmann has been charged according to valid substantive law and I
shall deal later on with the objections of Defence Counsel to the validity of
the law- while Section 4 of the criminal Procedure (Trial upon Information)
Ordinance, establishes the competence of the District Court of Jerusalem.
From the point of view of the external circumstances, the question can
obviously arise: was the Accused: promised suitable possibilities for defence?
The Court sees here a defending counsel who was chosen by the Accused: himself
to defend him. In order to enable him, the Defence Counsel, to appear here this
morning, the Knesset had to amend the Advocates Ordinance of the State of
Israel. And it may be assumed that the Court will be punctilious that all the
other measures which our legal system insists on be strictly observed, in order
to safeguard a fair trial.
Before analysing the authorities I should like to say only one thing about
that letter the content of which Defence Counsel read, signed as he says under
coercion and pressure. It is not the signature of Adolf Eichmann on that letter
which assigns to an Israeli court the authority to try him. I am merely
surprised why that letter was so completely invalid for all possible purposes,
but was perfectly valid for Dr. Servatius to rely upon on 22 December 1960 when
he applied to the Minister of Justice to grant his request that the State of
Israel should bear the costs of the defence.
Presiding Judge: I do not understand this argument, Mr. Hausner.
Attorney General: I do not understand why this letter has been
mentioned at all. I do not base the competence of the court on the letter, but I
fail to see the possibility of saying: This letter is void from Eichmann's point
of view, but it is binding on you, as the Defence Counsel wrote.
Presiding Judge: This letter is not before us.
Attorney General: I am ready to submit the letter from Dr. Servatius
to the Minister of Justice. It says in the paragraph referred to, as follows:
"Hierzu verweise ich auf die Erklaerung, die Adolph Eichmann im
Mai 1960 anlaesslich seiner Festnahme in Argentinien unterzeichnet hat. In
dieser ihm vorgelegten Erklaerung erwartet er die Gestellung eines
Rechtsbeistandes und hat sich daher bereit erklaert, nach Israel zu kommen, um
dort vor ein zustaendiges Gericht gestellt zu werden."Dr.
Servatius, inter alia, submitted his request to the State of Israel concerning
the defence costs, and this was granted.
Presiding Judge: Are you submitting the letter? Do you have a Hebrew
translation of the letter?
Attorney General: No, your Honour. I only thought of submitting it
this morning.
Presiding Judge: Please translate it. Let the interpreter see what you
quoted, and which paragraph, so that he may translate the part which is relevant
for you.
Interpreter: "I hereby refer to the statement signed by Adolf Eichmann
in May 1960 when he was detained in Argentina. In this statement which was
submitted to him he expected to be given legal aid, and because of this he
expressed his readiness to come to Israel to appear there before a competent
Court."
Judge Halevi: Where is the Accused's letter of the month of May?
Attorney General: I shall produce it immediately. This is the original
letter. It was correctly read out by Defence Counsel.
Presiding Judge: I mark the letter which you submitted this morning
T/2 - the Defence Counsel's letter dated 22 December 1960. Are you submitting
this letter too?
Attorney General: I was requested by Judge Halevi to submit it and I
do so submit it.
Presiding Judge: I mark the letter T/3.
Judge Halevi: Do you, Sir, maintain that the letter of May 1960 was
signed by the Accused: of his own good will?
Attorney General: Your Honour, I say as I shall argue forthwith, that
there is no practical difference whether it was signed of his own good will or
not. This letter does not have any value from the point of view of providing a
ground for competence, and I would not have mentioned it at all and I had no
intention of relying on it, had it not been for the remarks made this morning
concerning this matter. This question does not strengthen or weaken the case at
all.
Judge Halevi: Then the two letters are not relevant in practice.
Attorney General: In practice they are not relevant.
Presiding Judge: You say: There is no practical difference whether
this statement was made...
Attorney General: Freely or under compulsion.
Dr. Servatius: I request the Court that Document No 3 as you
designated it...
Presiding Judge: Document T/2. Dr. Servatius...In view of the fact
that the Prosecution itself has stated that it does not strengthen or weaken the
case, should be declared as irrelevant.
Attorney General: I shall not rely on this letter, not on the first
nor on the second.
Judge Halevi: Perhaps it is possible to ask Dr. Servatius if he relies
on the letter of his client of May 1960 - perhaps that one can also be
eliminated?
Dr. Servatius: I refer to the letter which Adolf Eichmann wrote
himself, which is Exhibit No 3.
Presiding Judge: I understood previously that you were referring to
the letter which you yourself wrote and that is T/2. Evidently this is my
mistake.
Judge Halevi: You, Sir, have asked us to eliminate the letter of Adolf
Eichmann, to remove the letter of the Accused: from our deliberation. Is that
correct? Or is it the letter that you wrote to the Minister of Justice, or both?

Dr. Servatius: I wish to declare as irrelevant only the letter which
I, Defence Counsel, wrote to the Minister of Justice, and not the letter which
Eichmann himself wrote, which in my opinion is relevant.
Presiding Judge: We are talking of letter T/2 - that is final.
Judge Halevi: Why, in your opinion, Dr. Servatius, is the Accused's
letter relevant?
Presiding Judge: If you have anything to add to the matter of these
two letters which arises here, please continue.
Dr. Servatius: I will say this briefly: Only the letter of Adolf
Eichmann himself is relevant in relation to the decision of the trial itself,
and it does not add or subtract whether the Attorney General: decides that it is
relevant or not.
Attorney General: May I be permitted to continue, your Honour?
Presiding Judge: Please do.
Attorney General: Your Honours, I mentioned and submitted Dr.
Servatius' letter only because I do not want a double standard approach. He
cannot ascribe on the one hand, as he says, to official representatives of the
State of Israel an act of coercion in the signing of a letter and on the other
hand rely on that selfsame letter for the sake of any object required by him.
This cannot be. Either the letter is entirely invalid, and then it is invalid
for any purpose, whatsoever, or it is entirely valid and then it is valid for
every purpose whatsoever. But it is not possible to disqualify it for one
purpose and validate it for another purpose. And to this I objected. I objected
to the nature of the argument.
Presiding Judge: All right - perhaps you will not prolong this
discussion.
Attorney General: I shall not prolong the discussion on this. And,
with the Court's permission I should like to pass to an analysis of the
authorities.
Presiding Judge: Please be seated while we record a decision in this
matter.
Dr. Servatius: May I say something?
Presiding Judge: Please tell him that the normal practice is that
whoever objects, objects. Thereafter his colleague replies to him, and with the
special permission of the Court the objector can argue once again. But there
must be an end to the debate. This time I shall still allow him to make his
observation.
Dr. Servatius: In this document there are two different things: one -
the agreement of the person under compulsion; two - the promise of an authorized
person, one who possesses authority; and this promise must be kept.
Presiding Judge: I understand, therefore, that your argument is that
the portion referring to the promise is permitted, and the other portion is
invalid. Is this your contention?
Dr. Servatius: Yes, certainly.
Presiding Judge: Dr. Servatius, I am sorry. It is necessary to turn to
you again. I understand that these last remarks in your argument referred to
your letter dated 22 December and not to the Accused's statement. With regard to
this letter of 22 December you said that part of it is valid and part is
invalid. Did I understand you correctly or does it refer to Exhibit T/3 - the
statement of the Accused himself.
Dr.Servatius: I suppose I did not express myself properly. My letter,
signed by me, T/2, is proper in all its parts and I am not challenging it. I
only replied to the Prosecutor's argument that any demand was based on the
promise that was included in Eichmann's letter which, I say, was dictated to
him.
Presiding Judge: Decision No. 1. We accept letter T/2 as an exhibit
without expressing an opinion as to its value as proof. I would like to explain
to you, Dr. Servatius, that in future, if you wish to object to the submission
of a document, you must state your objection before the document is marked by
the Court, otherwise you will be too late.
Dr. Servatius: Yes, certainly. I have understood this.
Attorney General: Before I proceed to an analysis of the authorities,
I should like to deal with one problem which Defence Counsel raised this
morning, namely the difficulties in preparing the defence of the Accused: in
view of the fact that the trial is being held in Israel. And here he is unable -
as he argues - to bring witnesses; some fear for their personal safety while for
others there is no one to pay the expenses of their journey and their stay in
Israel. Already in preliminary contacts with the Defence I informed them that I
would support an application on which, of course, only the Court could decide,
that affidavits could be submitted as evidence. And if Defence Counsel has
people who are ready to give testimony that contains something in favour of his
client, I will not bar the way even though I would be deprived of the right of
cross-examination. I would agree to the submission as to their relevance. But I
am ready to take a further step forward.
Judge Halevi: Pardon me, Sir. You say that generally speaking you
would be prepared to accept affidavits of overseas witnesses, of witnesses for
the defence, I understand, and in this way waive your right of cross-
examination.
Attoney General: The stand I am taking is not such a general one. If
Defence Counsel convinces us that there is, in fact, a witness who is able to
describe matters which are relevant to the defence and there is no possibility
of bringing him to Israel, as he himself is likely to be placed on trial here
because of offences which he himself committed or because the defence does not
have the financial means for this, I am ready to discuss each individual case
and if I am convinced that it is right and just that the affidavit should be
submitted to the Court, I will support the application that such an affidavit
should be submitted to the Court.
Judge Halevi: I understand. But the difficulty will remain in certain
instances. How can the Court depend on the credibility of the witness, if there
will be no cross- examination. Possibly you will in this way be waiving or be
forced to waive a cross-examination. Generally speaking in a case where a trial
is being conducted with witnesses testifying before the Court - the waiver of
cross- examination by the opposite side is considered in most instances
tantamount to absence of any dispute in regard to the witness' reliability. Here
it will be impossible to come to such a conclusion. If we do not arrive at this
conclusion, how can a judge distinguish between reliable evidence and unreliable
evidence?
Presiding Judge: Perhaps it is still premature to deal with this
question at this stage.
Attorney General: If the Court wishes to have my reply, I will
naturally give it.
Presiding Judge: When a concrete case arises we shall go into the
matter.
Attorney General: As the Court decides.
Presiding Judge: This is not a decision - this is a suggestion.
Judge Halevi: I see the relevance at this stage in that the Attorney
General: wishes to reply to the argument that there can be no fair trial owing
to the lack of the possibility of bringing defence witnesses here from abroad.
The answer is that there is a good alternative for this and that is an
affidavit. My question is: the alternative is not such a good one, since it does
not allow the Court to differentiate between truthful evidence and false
evidence. In this way we may be inundated with thousands of false testimonies.



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