Archive/File: people/e/eichmann.adolf/transcripts/Appeal/Appeal-Session-02-05
Last-Modified: 1999/06/15

In an article by R.R. Baxter, published in The British
Yearbook of International Law 1951, entitled "The
Municipal and International Law Basis of Jurisdiction over
War Crimes," on pages 390, 391 and 392, it says:

     "International law also surmounts the jurisdictional
     barrier, as municipal law cannot, by recognizing the
     universality of jurisdiction enjoyed by war crimes
     tribunals. Recent prosecutions of conventional war
     crimes and crimes against humanity have afforded many
     significant instances in which the victims of crimes
     have included few or no nationals of the prosecuting
     state."
     
     "Consequently, not only did the locus of the
     particular offence become immaterial, but the United
     States also prosecuted persons who had been
     responsible for war crimes before the country had
     become involved in war."
     
In other words, crimes committed when America was not even
belligerent. And here they say: You did not even exist at
the time.

And on page 392 it says:

     "If a neutral state should, by reason of the
     availability of the accused, witnesses, and evidence
     be the most convenient locus in which to try a war
     crime, there is no reason why that state should not
     perform that function."
     
Justice Silberg:  Are you arguing, Mr. Attorney General,
that the proliferation of these laws created international
law?

Attorney General:  No. I am saying that international law
never prohibited this. I want to show that we were not the
only ones to use the permission of international law, that
we are in good company. Both of the international camps
the East as well as the West - did the same.

In Law Reports of Trials of War Criminals, the series to
which I have already referred, Volume 1, page 106, the
Court will find a reference to the trial of the Japanese
sergeant Tomono Shimiyo, who was tried before a British
military court in Singapore by British judges for the
unlawful killing of American prisoners of war in Saigon,
i.e. on the territory of what was then French Indochina.
He was sentenced to death. In other words, a court
entirely composed of individuals who had no connection
with the place where the offence was committed, i.e.
British people in Singapore who had no national tie with
the victims of the crime, were competent to try a foreign
subject who had fallen into their hands, merely because
the crimes were committed against the judges' allies, i.e.
against American soldiers.

On page 43 of the same volume 15...

President:  Mr. Attorney General, you referred before to
the first volume. The case of the Japanese soldier is
referred to in the first volume.

Attorney General:  I am going back to Volume 15. On page 43
it says:

     "There have been numerous reports in this series of
     trials by the Courts of one ally of offences
     committed against the nationals of another ally or of
     persons treated as Allied nationals, and in many
     trials no victims were involved of the nationality of
     the State conducting the trial."
     
A fortiori, it is beyond dispute that an Israeli court has
jurisdiction to try an individual accused of wiping out
one third of the Jewish People. For us the Jewish People
is not simply an ally: It is bone of our bone, and flesh
of our flesh. Alliances are made to change, yesterday's
friends are likely to become tomorrow's enemies. But the
national identification of the overwhelming majority of
the inhabitants of this State with the victims of the
Holocaust cannot be challenged or changed. The State of
Israel is the State of the Jews, as it declared when it
was established and when it was recognized by the entire
world. And if other courts saw themselves as competent to
try war crimes because the victims of those crimes were
their allies in the common struggle against a common foe,
we were no less Allies in the war against Hitler; rather,
we were his prime enemy. Our competence to try those who
carried out his murderous work in respect of millions of
our fellow Jews accrues to us on the basis of law and of
justice.

The Appellant's argument that Eichmann's crime should not
be viewed as universal, because he was acting in
accordance with the laws of his state and following the
orders of his leaders, is unfounded. It runs utterly
counter to the principles laid down in the judgment of the
Nuremberg International Military Tribunal which has been
accepted by civilized countries and thus by the entire
world.

If we examine the argument in some depth, we find the
outmoded conceptions of an omnipotent territorial
sovereignty. Its thinking is that, if pirates seize power
in a particular state, do away with all the laws, disavow
all moral principles, engage in murder, robbery and
plunder - it will be impossible for them to be judged,
because they were sovereign in their territory. The days
have passed when international law would throw up its
hands and stand by helplessly while politics had their
way. Today, according to international law, the emissaries
of a criminal state can expect not only sanctions and a
peace treaty, but also to be put on trial, with the
responsibility for criminal acts being personal and placed
squarely on the shoulders of every single one of those who
served the wicked state.

I do not accept the version according to which Eichmann
was allowed to do what he did because that is what Germany
wanted at the time. In this argument we today hear an echo
of the well-known Nazi slogan: "What is legal and right is
what helps the German people; what is illegal is what
harms it," so that Germany's laws and will are to be
preferred to any moral or legal principle.

The Judgment of the Court of the First Instance has
already cited the main references from the literature and
the British and American case law which utterly reject
this viewpoint. For the sake of completeness, I shall
refer here to this principle as presented in the views of
the Soviet Union's school of law on international law.

In International Law, a book published by the Soviet
Union's Institute of Law, on pages 451-452, in the chapter
on war crimes, it says:

     "Present-day International Law lays down that persons
     who commit crimes against peace, against the laws and
     customs of war and against humanity, are individually
     liable and subject to criminal punishment. These
     generally recognized principles of International Law
     were set down in a number of international agreements
     and also in the Charters of the Nuremberg and Tokyo
     International Military Tribunals which punished the
     major Axis war criminals. These Charters contain
     exact definitions of the concepts of crimes against
     peace, war crimes and crimes against humanity."
     
Justice Silberg:  That means that the London Charter
created international law.

Attorney General:  It provided it with a formulation. In a
well-known paragraph, the judgment says: This is not a new
arbitrary determination which we are making now, we are
today simply putting down in the form of paragraphs
matters which have since time immemorial been forbidden in
the eyes of all civilized nations.

Justice Silberg:  That is the opinion of the Russian
author. He says "recent international"...

Attorney General:  "Present-day international law." He sees
this as a modern development.

We are told that the Appellant is simply a victim of
wicked laws. I  can only repeat what was already said in
the Judgment of the Court of the First Instance, that evil
laws are not laws, just as illegal orders are not orders.

President:  Which law are you referring to now? I asked Dr.
Servatius which law dealt with the extermination of the
Jews. He said that he never saw such a law.

Attorney General:  No, but he says: There was an edict by
Hitler, and in Germany there was the principle: "Der
Fuehrer befehlt, wir folgen." So this was an order of the
leadership. And Eichmann says that he took an oath of
loyalty to the flag, and he was obliged to carry out what
his Fuehrer demanded of him. For him this was the law.
When I asked him: Did you show any interest, did you ever
see any legal basis?, his reply was: It was not up to me
to investigate; it was up to the top echelons. They
commanded me, I acted.

Justice Silberg:  He also bases himself on the laws about
the plunder of property.

Attorney General:  That is correct.

Justice Agranat:  And cancellation of citizenship.

President:  Because if this is given the form of a law in a
particular state, then from that state's viewpoint it can
be argued: This is a law, a bad law or a good law. But if
this is not given the form of a law, but someone in great
secrecy tells someone, and that someone tells several
other hundred someones, and so on and so forth - then the
question of whether this is a law or a conspiracy is very
simple, even if this is done by those in the state's high
places.

Attorney General:  In any case, the leading legal figures
in Germany do not see this as a law today, and they impose
punishment for acts committed on the grounds of obeying
such orders. But here we have heard, and I would continue
along the lines of this argument: The Fuehrer's will was
law. But that will was not expressed even in such forms,
as dictatorial German legislation also insisted that it
should be put down in writing somewhere and signed...

President:  On the contrary, the concern was for this to be
secret.

Attorney General:  Precisely, the concern was that this
should be concealed, and they deceived the entire world,
sometimes even their own ministries which were not
directly concerned.

But I would like to argue a point in relation to the
argument of Defence Counsel, who says: The Appellant saw
himself as being ordered by a compulsive force, which he
had no choice but to obey, to do the things he did.

Of course such an argument - that it is enough for some
Fuehrer to come along and give orders that acts be
perpetrated in order to compel a person to follow him and
carry them out, even if they involve bloodshed - is not an
argument which can be presented to the Court. His oath to
the flag - on which he insisted and to which he kept
returning - can in no way justify him. On the contrary,
this very oath, to follow blindly, without any moral
consideration, wherever the Fuehrer leads, even to the
most heinous sins and crimes, is in itself an immoral act.

Justice Silberg:  Following on from what the President
said, is not the very fact that Morgen wanted to put him
on trial proof that it would have been possible to try
him?

Attorney General:  Yes, Your Honour, I know, I shall also
get to that when I talk about Eichmann's words.

Justice Silberg:  No, in this connection the subject is
important.

Attorney General:  Morgen, as an investigating judge of the
SS, did not know of any general order under which it was
permissible to do to the Jews what they did in Germany. In
other words, in factual terms, too, this version is not
correct. And let me instead simply refer to something
else. In T/1288 the Court will find part of Himmler's
speech of encouragement and praise in Poznan to senior SS
commanders, in 1943.

President:  Where he says that the faint-hearted can leave?

Attorney General:  Yes, that is the passage on which one
can base oneself. I shall read out to the Court another
two passages.

Justice Silberg:  This was on 4 October 1943?

Attorney General:  "We have the moral right, we have a duty
towards this people to destroy that people. The property
that they had has been taken away from them. I have given
strict instructions to transfer every single piece of
their property to the Reich." Himmler could not have done
this on his own. He could not with his own hands locate,
concentrate, collect, imprison in ghettos, attach the mark
of disgrace, put on trains, push into the gas chambers all
the millions who were exterminated. There were men, live
men who acted as his eyes, hands in doing his will; there
were people who passed on these orders; there were people
who ensured that the orders would be carried out; there
were people who day in, day out, hour by hour, performed
all of these acts. What could Himmler have done without
Eichmann and without Mueller and without the other SS and
SD men? Counsel for the Defence tells us once again: "I
was not the only one." True. I made that point right at
the outset, this was how Adolf Eichmann was charged in the
indictment, together with others, he alone could not have
done this. There were legions of men who dealt with this,
and they are all war criminals, and they are all
murderers, even though, regretfully, not all of them have
been punished. But because of this we should acquit him
after he has been caught, because there were other
criminals as well?

The Accused had these or similar words by Himmler brought
to his attention. I examined him, in Session 95 (Vol. IV,
p. 1659).

"Question  Do you remember Hoess telling you about
Himmler's visit to Auschwitz? That the work of
extermination was a battle which future generations would
not have to endure? And Hoess said that he was encouraged
by this remark of Himmler's.

"Answer  That this remark encouraged Hoess? I do
remember...this is a sentence which I never forgot."

I now read out what he said in Argentina, in the famous
Sassen Document:

     "But just as Hoess thought, so we also thought. And
if
     Hoess told me of this sentence which the
     Reichsfuehrer pronounced...it is because this
     sentence by the Reichsfuehrer gave me just as much on
     an official level as it probably gave Hoess in his
     sector, because, after all, we were his followers.
     Under the Reichsfuehrer we had freely undertaken, by
     means of an oath of loyalty and an oath of office, to
     submit to and obey the orders of our superiors."
     
When asked if he had said that, he replied that he could
not swear to the actual wording, but, as far as the
substance was concerned - yes, he assumed that he had. The
interpretation of the substance of what the Reichsfuehrer
said fitted as well. And thus, he said, the substance of
these statements was true.

Anyone who acted in this way and who derived encouragement
from this instruction of the Reichsfuehrer should not come
and argue today that he is on trial merely because of the
wicked leaders and that he is a scapegoat for all the
others.

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