The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of Adolf Eichmann
Session 1
(Part 3 of 5)

Holocaust, Adolf Eichmann, Eichmann trial, holocaust, Jewish holocaust

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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