Archive/File: people/e/eichmann.adolf/transcripts/Sessions/Session-120-01
Last-Modified: 1999/06/14

Session No. 120
6 Tevet 5722 (13 December 1961)

Presiding Judge: I declare the one hundred and twentieth
Session of the trial open.

I should like to indicate a further clerical error to which
our attention has been drawn, this time in the wording of
the conviction, which has been corrected by adding the words
"and into France" at the end of the fifth count in the
conviction. The last line will become: "the Reich area
itself into the German-occupied area in the East and into
France." The reason is that, due to an oversight, the
reference was omitted here to the deportations from Baden
and the Saar-Palatinate, which are described in detail in
the Judgment, and this has now been corrected.

Please proceed, Mr. Attorney General, on the sentence.

Attorney General: With the Court's permission, most of the
points that can be made in an argument on sentencing have
already been made in this trial. What was said by the Court
yesterday and on the previous day in its Judgment still
reverberates here in the courtroom and will continue to
reverberate throughout the entire world. There will also
remain engraved in our memories and in our hearts the
testimony of some one hundred Holocaust survivors, who have
conveyed to this very courtroom the sea of blood and tears,
and I shall not add to what has been said.

He who dealt with the satanic labour of extermination day
after day, month after month, for years on end, and did this
out of internal conviction, with cruelty and obstinacy, out
of an urge to bring about ruin and destruction, after
preparing the slaughter through all possible methods of
terror, trickery and deceit - he who was the centre of this
bloodsoaked enterprise - deserves but one sentence.

I shall deal first with the legal significance of the penal
provisions of Section 1 of the Nazis and Nazi Collaborators
(Punishment) Law 5710-1950. 1 {1 Sefer Ha-Hukim No. 57,
1950, p. 281} As the Law itself indicates, the legislator
determined that those who commit crimes against the Jewish
People, crimes against humanity, or war crimes - are liable
to the death penalty. But the problem still remains as to
whether this punishment is mandatory and the only option,
and whether, whatever the circumstances, light or grave, the
Court is obliged to impose on the offender this sentence and
no other; or whether the Court still retains a discretion to
impose a death sentence in a heinous case, and a different
sentence in mitigating circumstances.

It is well known that the penalties prescribed for crimes
are usually maximum sentences, and the court may impose
them, but it retains the discretion to impose a lighter
penalty. But in my opinion, thi is not the case in Section 1
of the Nazis and Nazi Collaborators (Punishment) Law.

In order to determine the legislator's intention, I shall
briefly consider the history of this Law. When the Bill was
published at the beginning of 1950, 2 {2 Hataz'ot Hok No.
36, 1950, p. 119} it was originally provided that anyone
committing such offences would be liable to the same
punishment as a person found guilty of murder, or a less
severe penalty. But when the Bill came before the Knesset
for its final approval, the penal section appeared in the
form in which it appears today, and was passed accordingly.

The penal section in the Law on the Prevention and
Punishment of the Crime of Genocide 5710-1950 underwent
exactly the same development. This too contained similar
provisions in the Bill,3 {3 Hataza'ot Hok, 1950, p. 37}
while in the Law itself4 {4 Sefer Ha-hukim, 1950, p. 137}
the provisions of the penal section were similar to those in
the Nazis and Nazi Collaborators (Punishment) Law.

The reason why I am stressing this point is two-fold:
firstly, because the two Bills were debated within a short
space of time in 1950, and secondly because the Court stated
explicitly in its Judgment that the Law which we are
discussing derived its inspiration in respect of this
important point from the other Law to which I have referred.

When the Genocide Bill had its final reading in the Knesset,
it was stated explicitly...5 {5 Knesset Proceedings, Vol. 4,
p. 1230}

Presiding Judge: By whom?

Attorney General: By the Chairman of the Constitutional,
Legal and Justice Committee, Member of Knesset Nir, when he
moved the Bill on behalf of the Committee - that the maximum
and sole penalty for a person found guilty of genocide would
be capital punishment, but in special mitigating
circumstances, the penalty would be a ten year prison term.

The same applies to the law with which we are dealing.

In Section 11 of the Nazis and Nazi Collaborators
(Punishment) Law it says that, when determining the
punishment for a person who has been found guilty of an
offence under this law, the court, in imposing the penalty,
may take into account certain special circumstances as a
mitigating factor, but if it was an offence under Section 1,
the penalty shall be a prison sentence of at least ten
years.

This shows that in the absence of these special
circumstances, the Court has no discretion to impose
anything other than the maximum sentence. If the
legislator's intention were other than this, and if the
maximum sentence were not a mandatory one, there would be no
reason or need to provide that precisely in mitigating
circumstances the minimum sentence of a ten year prison term
was to be imposed as a mandatory penalty. Mitigating
circumstances are meant to render the penalty less harsh,
not more so. When the legislator lays down a minimum
penalty, he does so out of a desire to be severe, when he
knows that the maximum sentence laid down for that offence
is not a mandatory one. This is so in several laws6 {6 Law
amending the Penal Laws (Attacking Policemen) 5712-1952,
Sefer Ha-hukim, 1952, p. 144; III, Gideon, p. 1377, S. 1, 2,
3} 7 {7 Traffic Ordinance (New Version). Laws of the State
of Israel, New Version, p. 173: XI Gideon 6024, S. 63} 8 {8
(Fisheries Ordinance, Official Gazette 1937), TRS' A, p. 157
(English); G. Hochman (Laws IV, p. 1628; 3 Gideon, p. 1264,
Secs. 10(d) (11)(a)} which lay down minimum penalties for
cases in which the legislator considered a harsher sentence
to be justified.

The obvious conclusion is that when mitigating circumstances
led the legislator to lay down a minimum sentence, it
follows that his intention was that the standard penalty, in
the absence of these circumstances, would be mandatory and
exclusive.

I now go back to the Law on Genocide.

In Section 2 it says...

Presiding Judge: On which page?

Attorney General: Page 137.

Presiding Judge: Thank you.

Attorney General: In Section 2 of the Law on Genocide it
says:

     A person found guilty of genocide shall be sentenced to
     death, but if he committed the offence in circumstances
     which, but for Section 6, would have absolved him of
     criminal liability, or would have served as grounds for
     excuse and he did his best to mitigate the severity of
     the effects of the action, the penalty shall be
     imprisonment for a period of no less than ten years.

Section 6 of the Law on Genocide is parallel to Section 8 of
the Nazis and Nazi Collaborators (Punishment) Law, and
excludes certain defences.

It must be remembered that when these two Laws were passed
by the Knesset, Section 42 of the Criminal Law Ordinance9 {9
Official Gazette 1936, Appendix A, p. 285 (English), as
amended: Official Gazette 1946, Appendix A, p. 230
(English)} was still in force, and applied to both these
Laws (Section 7 of the Nazis and Nazi Collaborators
(Punishment) Law, and Section 7 of the Law on Genocide).

In Section 42 it says that when the death penalty is
provided for a crime, this shall be the sentence to be
imposed exclusively, unless it is explicitly stated
otherwise.

Neither of the two laws in question contains any other
stipulation, whether explicitly or by inference.

Furthermore, without any need to base ourselves on the
aforesaid Section 42, and from the provisions of the Nazis
and Nazi Collaborators (Punishment) Law - from the
comparison I have made between its Sections 1 and 11, from
the similarity to the Law on the Punishment of Genocide - it
results that the death penalty is the only punishment
intended by the legislator for an offence under Section 1 of
that Law.

When the case of Yehezkel Ingster came before the court
(Criminal Case 9/51), he was found guilty by the Tel Aviv
District Court of an offence under Section 1 of the Law,
i.e. of a crime against humanity, and the Court sentenced
him to death.10 {10 P"H 9/51 - V District Judgments, p. 152,
177, 178-180} That was at the beginning of 1952.

Attorney General: It should be pointed out that Ingster was
acquitted of this offence following his appeal to the
Supreme Court,11 {11 Crim. App. 5/52 - not reported} and
consequently the Supreme Court was not required to interpret
the penal provision of Section 1 of the Law. I have here an
authenticated copy of the Supreme Court judgment, which has
not been reported elsewhere.

Presiding Judge: Was this the judgment or were the reasons
given as well?

Attorney General: The court was to give its reasons, but did
not do so.

However, the District Court's ruling in Ingster on the
penalty which is to be imposed for that offence is worthy of
consideration.

The Tel Aviv District Court stated explicitly that the
accused before it was not himself a Nazi or identified with
this wicked regime, because Ingster was a persecuted Jew and
lived in inhuman conditions just like his victims. But he
was a "Kapo." He maltreated the inmates and was found guilty
of injuring four people. For this offence he was sentenced
to death.

The Court also stated explicitly that there were far worse
"Kapos" than he, and that his actions were not among the
worst, and had it been entitled to take this into
consideration, it would have sentenced him only to a ten
year prison sentence. It also said that if it were free to
do so, it would take into account the fact that the accused
had already been punished by God: His right leg had been
amputated as a result of a malignant disease, his other leg
was paralyzed, and he was afflicted with many other
ailments. Nevertheless, the District Court ruled that it saw
no alternative before it but to sentence the accused to
death, and that it did not consider itself entitled to take
into account any mitigating circumstances.

The District Court also ruled that Section 11 of the Nazis
and Nazi Collaborators (Punishment) Law stated exhaustively
the circumstances which it could take account, and because
it did not find that the accused Ingster could not benefit
from any of these circumstances, the death sentence was
mandatory, and it passed sentence accordingly, as I have
explained.

The judges were unanimous on this point. Judge Lamm
disagreed with his colleagues, Judges Avissar and Levin, concerning 
the verdict of guilty of a crime against humanity. This verdict
was adopted by the majority. But all three judges came to
the conclusion that after a verdict of guilty, the only
sentence which the court could impose under Section 1 was
the death sentence, since nothing in favour of the accused
had been found under Section 11.

As I have already mentioned, Ingster was acquitted by the
Supreme Court of the charge of a crime against humanity. The
Supreme Court gave him a two year prison term for the other
offences under that Law. He went to prison and died there.

In 1954, the Israeli legislator repealed the death penalty
for murder, and provided that in the case of murder the
offender shall be sentenced to life imprisonment "and that
penalty alone"12 {12 Law Amending the Penal Laws (Repeal of
the Death Penalty for Murder) 5714-1954, Sefer Ha-Hukim
1954, p. 74, 3 Gideon, p. 1378} - in the Law amending the
Criminal Law. But in that law it is still stipulated that if
someone is found guilty of murder under Section 2(f) of the
Nazis and Nazi Collaborators (Punishment) Law, he shall be
treated as was the case prior to the repeal of the death
sentence for murder, and that the mandatory provisions of
Section 215 of the Criminal Law Ordinance shall continue to
apply to him - i.e., his sentence will be capital punishment
without any possibility of commuting it to a different
penalty.

I mention this because when the legislator repealed the
death penalty for murder it also provided that the courts
should continue to impose this punishment, and this
punishment only, on the murderers of those who were
persecuted during the Holocaust. The legislator did not at
that time deal with Section 1 of the Nazis and Nazi
Collaborators (Punishment) Law, because, as I have stated,
it repealed the death penalty for murder only, but did not
repeal it for other grave crimes, for which such punishment
could be imposed on a criminal.

In 1954, the Law Amending the Penal Laws (Methods of
Punishment) was enacted.13 {13 Law Amending the Penal Laws
(Methods of Punishment), 5714-1954, Sefer Ha-Hukim 1954, p.
234, 3 Gideon, p. 1378} Section 1 of this Law lays down the
principle of maximum punishment to be imposed, i.e. the
court may impose any punishment which does not go beyond
that set down regarding the particular offence which is
before it. Section 43 of the Law states that its provisions
relate to offences under any law.

We have learned that the legislator wished to guide the
courts as follows: Punishments which I [the legislator]
provided for offences are maximum punishments, but you [the
courts] are free to act as you see fit - if you find the
offence to be grave you may impose the severest penalty; if
you wish you may impose a lighter sentence, according to the
circumstances.

In so doing, the Israeli legislator did not introduce any
innovation, since the same provision already existed in
Section 42 of the above-mentioned 1936 Criminal Code
Ordinance, which was repealed in 1954 together with other
sections of the Ordinance and which were replaced by other
provisions for methods of punishment.

However, there is no doubt that in making new provisions for
the maximum section, the legislator did not intend to
detract from the minimum or mandatory punishments provided
for in the various laws. On the contrary, he took for
granted that these would still be effective. This is clear
from Section 2 of the Methods of Punishment Law which refers
to the penalty of life imprisonment, but does not
specifically state that this is a mandatory punishment and
provides that in such a case punishment will be a twenty
year sentence only. That is, where life imprisonment is
mandatory, such as in the case of murder, life imprisonment
remains the mandatory punishment, and no other.

This fact, that there is no intention to detract from the
mandatory punishments, is also clearly implicit in that
which is stated in Section 10, at the end, of the Methods of
Punishment Law. It is stated there that where the Law
provides for mandatory imprisonment or minimum imprisonment,
the prison sentence will not be replaced by a fine.
Therefore, despite the existence of Section 1 relating to
the maximum penalty, the mandatory punishment and minimum
penalty remain.

Thus the inference is that if in any law the legislator
stated specifically that capital punishment be mandatory,
the repeal of Section 42 of the 1936 Criminal Code Ordinance
could have an effect, and the mandatory provision would
continue to bind the courts as previously.

It should also be presumed that the legislator was aware of
the rules of interpretation as regards later and earlier
laws, and also general and specific laws. It can also be
presumed that he was aware of the Interpretation
Ordinance,14 {Laws of the State of Israel, New version, p.
2} which in Sections 14(a) and 41 provides that where
another interpretation is implied, laws will not apply
according to their amended version, but rather according to
their original version.

The Supreme Court ruled in Haddad15 {15 Crim.App. 117/50, V
Israel Law Reports 1413, pp. 1420, 1422} that an earlier law
may be considered as having been repealed by implication as
a result of a new law only when there is a conflict between
them, and the provisions of both laws can in no way be
reconciled. In the same judgment, the Supreme Court bases
itself on well-known rules of interpretation, as laid down
in Maxwell,16 {16 Maxwell, 10th ed., p. 176} and I would ask
the Court to examine these citations as well as the other
principles which are expounded in Maxwell's work concerning
the interpretation of a specific earlier provision which
would appear to be in conflict with a later general law. The
Court will find the citations in Maxwell at pp. 176 ff.,
10th edition. The well-known principle, generalia
specialibus non derogant, in other words that the special
provision is not affected by a later general provision, is
there elaborated on in depth.

Therefore, the general Section on maximum penalties in the
Law on Methods of Punishment does not detract from the
validity of the special penal provision contained in the
Nazis and Nazi Collaborators (Punishment) Law, and the death
sentence as a mandatory penalty remains valid.

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