Archive/File: people/e/eichmann.adolf/transcripts/Appeal/Appeal-Session-06-01
Last-Modified: 1999/06/15

President:  Dr. Servatius, if you please.

Dr. Servatius:  Mr. President, Your Honours, first of all, I
wish to comment on a number of issues raised by the Attorney
General in respect of the jurisdiction of the Court  to
which I have not yet referred. As to the principle of
universality of the criminal nature of the act and the
authority to punish, the Attorney General has referred to
piracy. At the outset, it has to be stressed that this
concerns action against the will of the state. However,
there were also letters of marque, by virtue of which acts
of piracy were committed with the approval of the state. It
was precisely in such cases that no universal power to
punish existed. This shows that in politics the concepts of
crime, and in particular of crimes against humanity, vary,
and this results in variations of the scope of universal
jurisdiction.  Then, the Prosecutor has stressed that a
number of penal laws for the punishment of war crimes and
crimes against humanity have been enacted universally. He
argues that, accordingly, the State of Israel is authorized
and competent to enact similar criminal legislation.

However, these laws were all enacted by states in whose

territories the acts were committed. This is also in keeping
with the Moscow and London Declarations, according to which
the offenders ought to be returned to the states where they
committed the acts imputed to them.

The law enacted in Canada is based, apparently, upon the
protective principle - that is to say, the injury caused to
its own nationals, and in this case, obviously, prisoners of
war. This condition does not exist in the Nazis and Nazi
Collaborators (Punishment) Law.

In my opinion, the principle of universality does not apply.
The case of the Japanese NCO, Towono-Shito, who was tried by
a British military tribunal for war crimes committed against
American soldiers, proves only the claim to exercise
criminal jurisdiction initially by proxy between the Allied
Powers, but not the existence of the principle of
universality.

The Attorney General has further stated that the United
Nations did not set up an international tribunal for the
trial of crimes against humanity and, therefore, the State
of Israel has the power of jurisdiction by virtue of a
general mandate of the United Nations. But it is precisely
the refusal to set up an international tribunal which shows
that the principle of universality is not recognized by the
practice of the states and that, in this matter, states
reject any interference with their sovereign rights. This
attitude of the United Nations contradicts the claim for
universal jurisdiction which has been put forward.

The Convention against Genocide is further evidence for the
prevailing view as to the jurisdiction of the injured state.
In this Convention the jurisdiction specifically depends
upon the fact that the accused is actually in the custody of
the injured state. This jurisdiction is, in addition, based
upon the agreement concluded between the signatories
precisely for that purpose.

The current opinion of states as to the universal power of
punishment in the present case, emerges distinctly from the
resolution of the Security Council of the United Nations,
negating the right of jurisdiction of the State of Israel.

Another issue is the view held by the Attorney General that
the Israeli Court is vested with jurisdiction,
notwithstanding the Accused's abduction. The Attorney
General denies the existence of escape from justice in the
precedents quoted by him. I believe that I have not
sufficiently explained the expression of "escape from
justice" which I used. This is not escape from arrest, but
generally leaving the area of jurisdiction and thus to
escape from the court which has jurisdiction. Where such an
escape from jurisdiction has been established, the Anglo-
American court holds that an investigation of the facts is
not required. However, in the case of the Accused Eichmann,
the situation is basically different. It is precisely the
existence of original jurisdiction that has not been
established.

And now to the irregularities of procedure. As for the
irregularities of procedure claimed by the Defence, the
Attorney General has submitted that the proceedings in the
Israeli Court were the most appropriate, as witnesses and
documents were available in Israel more than elsewhere.
However, this applies only to the incriminating evidence and
is advantageous for the Prosecution, but it does not apply
to the Defence.

The Accused has been restricted to searching for material in
the evidence gathered by the Police, which had proved to be
not convincing for the case of the Prosecution and therefore
was not submitted to the Court by the Prosecution. However,
all these documents are only fragments of the entire
documentation, which, perhaps, might be adduced and might
actually elucidate how each of these documents came into
being. I also have to object to the Attorney General's view
that the examination of the witnesses abroad, by way of
taking evidence by commission, was more advantageous for the
Accused, and that if the witnesses had been examined in the
District Court, they most probably would have incriminated
the Accused even more. It is my opinion that the evasive
testimony of these witnesses which incriminated the Accused,
would have been elucidated had they been examined in the
District Court. The absence of the opportunity for cross-
examination by the Accused was to his disadvantage. The
testimony of these witnesses was also the subject of general
legal objections raised by the Defence. These objections are
hereby formally reiterated. The examination of all the
witnesses which took place before the examining judge on
commission, ought to have taken place in the Israeli Court.

The Attorney General has, furthermore, dwelt upon the
details on which the Accused, during his interrogation and
the Defence during the trial, had already commented in full.
I shall have to revert to some of these details.

There is a summing up which has become famous, although it
was never made. You find it in Dostoyevsky's novel "The
Brothers Karamazov." There, the weighing of evidence is
compared to a stick which has two ends. The result will
differ depending from which end you approach the case to be
judged. In both cases the outcome may look convincing.

In the present case, the starting point has to be that the
Accused acted in accordance with the whole organization and
its apparatus of command not on his own, but only carried
out what he was ordered to do within the framework of the
organization.

However, the starting point can also be each one of the
events and you may conclude, from these events, that the
Accused was not subject to that organization, but had acted
independently. In so doing, single events are given weight
which they should not have been given. Thus, the trial the
purpose of which was to elucidate the general circumstances,
concentrated on a small number of documents, like Wetzel,
the skeletons, Kistarcsa and the foot march, and some
others. The Attorney General disregards the basic plan for
the division of functions. He also does not raise any
objections to the charts, drawn up by the Accused, on the
organization and power of command. I beg to draw your
attention in particular to these charts - especially to the
detailed timetable submitted by the Accused in his own
handwriting.

This meticulously defined chain of command did not exist on
paper only; every office carefully guarded the powers given
it.

Furthermore, I wish to draw your attention to the dispute
between the offices of the Reich Minister for Foreign
Affairs, Ribbentrop, and those of Himmler. The existence of
these disputes is revealed, partly, in the documents
produced in evidence. This established organization shows
distinctly who bore responsibility in their capacity as the
Accused's superiors.

The Attorney General briefly passed over these persons who
bore the main responsibility, declaring that he never denied
that they, too, were responsible. He states that the wording
of the accusations made against the Accused was that he
acted together with others. However, the others appear in
this trial only as insignificant accessories. The Accused
overshadows them all.

One could imagine that if one of these main culprits had
been arraigned here and claimed that the Accused had carried
out all the measures against the Jews of his own accord,
such a defence would have been rejected outright as
baseless. It would have been met by the objection that
Eichmann was only a clerk charged with implementation, and
that they could not evade their own responsibility by taking
refuge with him.

In interpreting the documents, the elucidation which was
already established by the District Court has been
disregarded, namely, that, when writing in the first person,
the Accused did not express his own views, but the views of
the heads of the office upon whose orders he was acting.
Again and again it is wrongly stressed that the Accused
ordered or caused a certain thing to be done.

Where, in respect of a Section Head, it is stated in a
report that the Accused had "decided" or "ordered" something
to be done, that, too, has been elucidated. These were
instructions given to the Section Head, that is to say,
instructions referring to the implementation of deportations
which had been decided upon.

I wish to draw your attention, in this respect, to the
testimony of the witness Juettner, according to which the
Accused was entrusted only with carrying out the technical
aspects of the deportations.

The Section Heads received their orders only from their
commanders to whom they were subordinate. Despite all the
explanations, the Section Heads are referred to by the
Prosecution as "collaborators" of the Accused. Their
subordination to the commanders, however, has been amply
proved. Zoepf in the Netherlands, Dannecker in France and
Italy were such Section Heads subordinate to the commanders
of the SIPO and the SD.

The Advisers in the diplomatic missions, too, were
subordinate to the head of the mission. This was explained
in respect of Richter, the Adviser, and later on Attache, in
Romania.

Further on, the Attorney General stated that none of the
witnesses had confirmed that the position held by the
Accused was insignificant. I think I have sufficiently
proved what the witnesses who were subordinate to the
Accused have emphasized in respect of his place of
bureaucratic dependence. The emphasis on the station of the
Accused was made only by a number of witnesses who desired
in this manner to stress the minor importance of their own
functions. Following are some examples.

The witness Professor Six places the Accused, as a veteran
member of the Party, on the same level as his superior,
Lieutenant-General Mueller, and, in addition, with a number
of incriminating features as regards his character.
Professor Six proves, in this respect, to be a weak witness
for the Prosecution. Professor Six, at that time, proved
himself to have been successful in his position as an SS
Section Head in the Head Office for Reich Security to such
an extent that it had been intended to appoint him as
commander of an SS advance command in London and Moscow.
Even shortly before the end of the War, in autumn 1944, he
headed a conference of the Counsellors for Jewish Affairs in
the Ministry of Foreign Affairs which had been convened by
this Ministry. That was a position far above that of the
Accused.

The witness Morgen, on whom the Prosecution relies in order
to prove the Accused's position raises, in statements of a
general nature, the Accused's position to such a level that
the Accused is even called "Commander of the Extermination
of the Jews." In his affidavit dated 19 July  1946 (T/75),
however, the witness reveals the only relevant fact
ascertained by him. He describes the activity of the
extermination camps, together with the responsible persons
Hoess and Bormann, and then continues: "Eichmann's
organization existed apart from these units, and its
functions consisted only of transporting the European Jews
to the concentration camps, or the extermination camps,
respectively."

Attorney General:  This is incorrect. Morgen's affidavit
does not bear our number. The number is N/95.

Dr. Servatius:   I apologize for the mistake.

Justice Silberg:  Did you say Hess and Bormann or Hoess and
Bormann?  What is the connection between Hoess and Bormann?
After all, Bormann was the Fuehrer's deputy.

Dr. Servatius:  I only repeated what is written in the
affidavit. The testimony of the witness Wisliceny on the
Accused's position does not bear any weight. The whole
testimony of Wisliceny has been rightly rejected by the
District Court. The efforts of this witness to exonerate
himself through incriminating Eichmann, and in particular
the offer to find the whereabouts of Eichmann and his family
and to assist in his arrest, induced the Court to reject his
testimony. It appears also that Hoess' testimony has not
been considered by the District Court as being completely
trustworthy. It is surprising that when the psychologist Dr.
Gilbert was in the witness box, he stated that at Nuremberg
Hoess had revealed to him the truth, in view of his own
hopeless situation, and that he had not been motivated to
exonerate himself by enhancing the importance of the
Accused's position. Every psychologist will confirm that in
embellishing his activity, a witness, even in a hopeless
situation, will be most interested in his reputation,
precisely for the benefit of his family.

The Attorney General refers to the testimony of the witness
von Thadden only with respect to the Accused's alleged
uncompromising attitude. However, the witness von Thadden
declares, regarding the activity of the Accused, with whom
he maintained permanent contact, that the Accused never
exceeded the scope of his authority.

The testimonies of the Jewish witnesses, too, as to the
position and activity of the Accused, have to be
scrutinized. The District Court has already taken this into
consideration.  The members of the Jewish Communities and of
the Judenrat had to deal with the Accused, and therefore he
necessarily appeared in their eyes as the  most powerful
man. But memory may act as an element of exaggeration. This
becomes evident, for instance, from Dr. Loewenherz' report
made after the War, T/154. This report says that the
Accused, in the office of the RSHA in Berlin, announced to
the Judenrat the shooting of two hundred Jews, by way of
retaliation for sabotage. However, an original memorandum by
Dr. Loewenherz, written at the time of the event, points to
Mueller as the person who made the announcement, T/821. This
memorandum is also confirmed by the witness Moritz Henschel
in a report submitted to the Court, exhibit T/649. This
shows that mistakes may occur in the most relevant matters.

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