Eichmann trial - The District Court Sessions









The Trial of Adolf EichmannSession 1(Part 3 of 5)



The Law of Nations does not recognize the exercise of political sovereignty
by the dispensing of justice in the present case. The dispensing of justice to a
foreign subject, as is being claimed here, would not be recognized by the
territorial principle, nor the protective principle or the personal principle,
nor the principle of international justice.
These basic principles of the Law of Nations constitute the very essence of
our experience. These principles constitute a guarantee for international living
as a community and they must be protected. In these general principles one does
not have to enter into argumentation about legal niceties, as the case before us
will show. In practice you are restricting the Accused's defence. It is not
economically possible for him to produce witnesses before the court. He cannot
compel them to appear, and the witnesses, who themselves were officers of the
SS, are also obviously afraid for their liberty. They are obviously concerned
for their safety, should they appear in Israel before this Court.
Undoubtedly the State of Israel recognizes the principles of these basic
rules of the Law of Nations. But evidently it is presumed that special
circumstances create the right to deviating legislation, constituting an
exception to the rule. The Law for punishing Nazis and their collaborators is,
indeed, an exception, like the London Agreement which constitutes the basis of
judical authority for the International Military Tribunal in Nuremberg.
There is room for an exceptional law under special emergency conditions. An
exceptional law can also be a just law if it has a just purpose. The purpose of
the exceptional law, which is before us, is punishment; its punitive purpose is
the defence of the State itself and of the citizens of the punishing State
themselves. This defence is attained by deterring the perpetrator and by the
deterrence of other potential perpetrators. The punishment which may be expected
here according to the law cannot serve any of the aforementioned objects.
There looms before us the question of retribution. The State of Israel itself
has understandably rejected the idea of retribution. The Minister for Foreign
Affairs, Mrs. Golda Meir, did so at a session of the Security Council of the
United Nations Organization on 22 June 1960. This is what she said of the
Eichmann Affair. I quote her words: "This is not a matter of revenge. The Hebrew
poet Bialik says: Revenge for a small child - the devil has not yet devised."
But as against this there stands the principle of atonement, and this has
justification, but for such a purpose an exceptional law is not required since
for the idea of atonement there exists the dispensation of justice before a
competent judge. A legal process is ensured in Germany, and on the basis of the
London Agreement, a legal process is also ensured at each and every place where
the crimes were committed. Although the Government of the Federal Republic of
Germany has not yet, in fact, submitted any application for extradition,
nevertheless Attorney General: Bauer of the State of Hessen and the Defence have
already suggested this to the Federal Government.
If there is a demand here for retribution, how will there be retribution? The
Accused cannot make atonement for the death of a large portion of a people. Nor
can atonement be imposed on the Accused: for the acts of his State. If there is
room here for moral expiation, let the State which acted through the Accused:
make atonement. The State was involved in what was done, and it has to bear the
responsibility for the consequences from the moral point of view.
There is here the imposition of culpability without wrongdoing, since the
Accused: here, in fact, has to pay the penalty without culpability for processes
into which he was drawn by the State.
The Federal Republic of Germany has taken upon itself this moral
responsibility. Reparations are being made for the measures which were taken by
the former institutions of the State and burdens have been assumed for
assistance to the State of Israel which is a development consequent upon the
processes of persecution. Different from this was the Judgment of the
International Tribunal at Nuremberg. It dealt only with the leading
personalities. The decision was taken close to the end of the War. The leading
personalities made retribution for their administration and its deeds.
The Accused here does not belong to the group of leading personalities and it
is impossible to measure him by the same yardstick. World public opinion judges
blindly and much too hastily, but the writers who are responsible for that do
not constitute a Court.
My objection, therefore, rests on the fact that it is possible to take
exception to the Nazis and Nazi Collaborators (Punishment) Law. This law is one
which was enacted ex post facto and hence does not have legal effect. I do not
want to take a detailed stand on this matter which has already been dealt with
more than sufficiently. I ask the Court to admit this summary of the legal
arguments. I have already handed a copy of my remarks to my colleague, the
Attorney General.
Presiding Judge: Do you wish to submit this now?
Dr. Servatius: Yes
Presiding Judge: Mr. Hausner, you have no objection to this?
Attorney General: No, I have just now received a copy - during this
morning's session.
Presiding Judge: Do you perhaps have two more copies for the other
judges?
Dr. Servatius: I only had a few copies. I shall prepare some more.
Presiding Judge: I would ask you to submit this as soon as possible.
Dr. Servatius: We shall do this immediately.{The written submissions
of the defence appear at the end of Session 1.} The summaries contain
particulars of two points: the right of jurisdiction which the State maintains -
that is one point, and the question of retroactive legislation - that is the
second point.
Presiding Judge: You are now raising a new point.
Dr. Servatius: Yes.
Presiding Judge: At this time we shall have an interval for about a
quarter of an hour.
Dr. Servatius: As I have said, the absence of competence for this
Court also arises for reasons of procedure. The kidnapping of the Accused and
his arraignment before this Court cannot serve as the basis of the Court's
competence. The Accused, after being kidnapped, signed a statement in terms of
which he accepted for himself, of his own good will, the competence of the
Israel Court, and this is the text of the statement:
"I, the undersigned, Adolf Eichmann, hereby declare, of my own
free will: In view of the fact that my true identity is now known, it is clear
to me that there is no purpose in my attempting to continue escaping justice.
I hereby declare my readiness to travel to Israel in order to stand trial
there before a competent court. It is obviously clear that I shall obtain
legal aid, and that I shall try to put down in writing the facts of the last
years of my activity, my public activity in Germany, without colouring or
glossing over, in order that coming generations may receive a true picture. I
made this declaration of my own free will. I have not been promised anything,
nor have I been threatened. My aim is ultimately to achieve inner
tranquillity. Seeing that I can no longer remember every one of the details
and I may be exchanging one thing for another and confusing matters - I
therefore request that I should be assisted by placing at my disposal
references and statements to help me in my attempts and my efforts to arrive
at the truth.(Signed) Adolf Eichmann, Buenos Aires, May 1960."
There is no need to speak at length and to say that this declaration to
appear willingly before a Court in Israel was given under pressure. I request
for myself the right to produce proof, when it should be necessary, the object
of which would be to establish that this declaration and this letter were signed
under pressure and threats. If so, this declaration would be null and void and
the Court would not be able to base its competence thereon. A man who hid
himself for fifteen years, in order that he should not appear before a Court,
does not suddenly ask nor is he willing to appear before a Court; and he will
certainly not wish to appear before a Court and be judged by it, in that country
in which are to be found the people who suffered from him more than others, and
of whom he would be exceedingly afraid.
There are of course, precedents in the records of courts of law, judgments
pronounced throughout the world, in one country or another, during the last 150
years. From these precedents the impression could have supposedly arisen of the
possibility of legal proceedings despite the kidnapping of the Accused. But the
most meticulous examination would prove that such precedents are not to be
relied on. And here I shall not go into detail now. I merely wish to point out
the following: In these cases the judges used to close their eyes and disregard
the actual kidnapping of the Accused: and pronounced that they were concerned
solely with the legal proceeding begun before them and these proceedings would
be according to their usage and procedure. Such courts refuse to express an
opinion on the act of violence preceding the case. On the actions of such judges
Heinrich Heine observes in his English Fragments:
"Let the jurists turn the meat for roasting this way and that
until it will appear to them to be properly roasted."These
precedents should no be brought up here and they do not apply to this case; for
the kidnapping process here was absolutely different.
It appears from political literature on the Eichmann episode and arising
therefrom that the Accused: was kidnapped on the orders of the Israel Government
itself, and on its orders he was brought to Israel for trial. If this is the
case, then the Government acted against the law of Nations and this Court cannot
approve this and give validity to this action. To verify the fact that the
kidnapping of the Accused: from Argentina was ordered by the State authority, I
begin with the submission of evidence, and I repeat my suggestion which I have
already proposed in writing.
I wish to hear the witnesses: Firstly Mr. Zvi Tohar, of 3 Yiftah St., Ramat
Gan; secondly Mr. Jack Shimoni, of Ramat Gan, who is employed by the El-Al
company. The previous name of the witness was Jack van Koperdan. Witness No.1,
together with others, kidnapped the Accused: on 22 May 1960 in Buenos Aires. He
deprived him of his freedom and brought him to the State of Israel.
I amend that: the kidnapping was on the 11th May. Witness No. 2 was the pilot
or the captain of the aircraft of the El-Al company in which the Accused: was
transferred from Buenos Aires to the State of Israel. The witness will be able
to prove that the kidnapping of the Accused: Adolf Eichmann from Argentina was
carried out by the official order of the Government of the State of Israel.
These testimonies are important in view of the argument against the Court's
competence which I submit as Defence Counsel. This concludes my remarks.
Presiding Judge: Please, Mr. Hausner.
Attorney General: With the Court's permission, the question of the
arrest of Adolf Eichmann and his transfer to Israel came up for consideration
before the highest executive body of organized mankind, the Security Council of
the United Nations, and in its Resolution of 23 June 1960, the Security Council
determined inter alia, saying...
Presiding Judge: Will you please give us the text?
Attorney General: Yes.
"Mindful of the universal condemnation of the persecution of the
Jews under the Nazis and of the concern of people in all countries that
Eichmann should be brought to appropriate justice for the crimes of which he
is accused, noting at the same time that this resolution should in no way be
interpreted as condoning the odious crimes of which Eichmann is
accused..."I submit here a certificate of a public official
containing the text of the resolution of the Security Council. Presiding Judge:
I mark this T/1.
Attorney General: The Security Council did not thereby determine that
Eichmann was guilty. The proof of his guilt for the "odious crimes" falls upon
me and my colleagues, and I take this burden upon myself. But the Security
Council decided that Eichmann should stand trial. For a long time it has been
laid down, Your Honours, as far back as in the judgment of the International
Military Tribunal at Nuremberg, where Eichmann was not accused, and where
accordingly the findings in the matter must not be regarded as a decision
affecting him, his name was twice connected with the persecution of the Jews and
their extermination.
And I do not quote this so that the matter can serve as evidence before you.
I have already taken upon myself the burden of proof. But I quote this in
justification for the fact that the conscience of the world has been demanding
for fifteen years now that this man be brought to trial. The International
Military Tribunal determined (I read from the official Judgment - International
Military Tribunal, in the first Volume, at the foot of page 252).
"Adolf Eichmann, who had been put in charge of this program by
Hitler, has estimated that the policy pursued resulted in the killing of six
million Jews, of which four million were killed in the extermination
institutions."And on page 250 (at the top) it says:
"This 'final solution' meant the extermination of the Jews, which
early in 1939 Hitler had threatened would be one of the consequences of an
outbreak of war, and a special section in the Gestapo under Adolf Eichmann, as
head of Section B 4 of the Gestapo, was formed to carry out the
policy."The Nuremberg Trial determined the indictment, Your
Honours. The Security Council repeated it. The Family of Nations decided that
Adolf Eichmann must bear the responsibility for his crimes, and he stands trial
before you today. There is not one country which has declared that it desires,
or is ready, to judge him, and there is no conflict of competence at all between
the State of Israel and any other State in regard to trying Adolf Eichmann.
Defence Council has mentioned here that he has submitted an application to the
Government of the Federal Republic of Germany.
Presiding Judge: I think the interpreters require that from time to
time you should pause after a few sentences.
Attorney General: Certainly. Defence Counsel declared here that he had
approached his Government in order that it should request the extradiction of
Adolf Eichmann, so as to bring him to trial in Germany. I state on behalf of the
Government that no such request has reached the Government of Israel, and that
at the present time when the Accused: stands trial before you, there is no one
demanding to try him apart from the State of Israel.
Before I deal seriatim with the arguments of Defence Counsel, I wish to reply
shortly to his first contention, which is in fact a general disqualification of
any Jewish Judge, not only Israeli, to judge the man who is Accused: of the
attempt to destroy his people. The argument is as follows: Since you have been
the victims, since you have been afflicted, possibly members of your families
were harmed - for this reason you Jews must not judge Adolf Eichmann; let others
who were not affected judge him, let neutral persons judge him.
Perhaps, instead of replying to this argument in my words, it may suffice to
quote a well- known authority, in an article by Professor Goodheart, a Professor
at Oxford University, in the April 1946 issue of the Juridical Review entitled
"The Legality of the Nuremberg Trials (by A.L. Goodheart):
"It has been argued that the Tribunal cannot be regarded as a
court in the true sense" -(The reference is to that tribunal of the four
occupying Powers which tried the major war criminals at Nuremberg)- "because,
as its members represent the victorious Allied Nations, they must lack that
impartiality which is an essential in all judicial procedure. According to
this view only a court consisting of neutrals, or, at least, containing some
neutral judges, could be considered to be a proper tribunal.
As no man can be a judge in his own case, so no allied tribunal can be a
judge in a case in which members of the enemy government or forces are on
trial. Attractive as this argument may sound in theory, it ignores the fact
that it runs counter to the administration of law in every country. If it were
true then no spy could be given a legal trial, because his case is always
heard by judges representing the enemy country. Yet no one has ever argued
that in such cases it was necessary to call on neutral judges. The prisoner
has the right to demand that his judges shall be fair, but not that they shall
be neutral. As Lord Writ has pointed out, the same principle is applicable to
ordinary criminal law because 'a burglar cannot complain that he is being
tried by a jury of honest citizens. "There are three grounds on which one can
with confidence assert that the Tribunal satisfied the essential elements of
fairness. The first is found in the character of its judges. Although the
court is described as being 'The International Military Tribunal,' its members
are not professional soldiers but legal experts who have been trained in the
evaluation of evidence. It was at one time suggested that they should be given
the rank of Major General for the purpose of the trial, but it was decided
that it was not desirable to disguise their essential legal character.
The second reason is that the trials are being conducted in the full glare
of world publicity. In such circumstances it would be almost impossible for a
tribunal to act in an obviously unfair manner. It is worth remembering that at
the Reichstag trials in 1933, even a court composed of subservient Nazi judges
was forced to acquit Dimitroff because it had become obvious that he was not
guilty.
The third reason is that Article 26 of the Charter provides that 'the
judgment of the Tribunal as to the guilt or the innocence of any Defendant
shall give the reasons on which it is based.' This provision, which is far
stricter than the practice followed in the ordinary national courts where a
simple verdict of guilty is sufficient, is the strongest guarantee of
fairness, because the judges in such circumstances must realize that their
judgments will be subject to public scrutiny both now and in the future. The
first essential of a large trial is therefore satisfied by the character of
the Nuremberg judges and by the conditions under which they
function."



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