The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of Adolf Eichmann
Session 5
(Part 2 of 3)

Holocaust, Adolf Eichmann, Eichmann trial, holocaust, Jewish holocaust
And in the case of the German Foreign Ministry, known as the Wilhelmstrasse Prozess, Case No 11, in the Green Series Vol. 14, pages 320-321:
"Is there personal responsibility for those who plan, prepare, and initiate aggressive wars and invasions? The defendants have ably and earnestly urged that heads of states and officials thereof cannot be held personally responsible for initiating or waging aggressive wars and invasions because no penalty had been previously prescribed for such acts. History, however, reveals that this view is fallacious..."

"But even if history furnished no example, we would have no hesitation in holding that those who prepare, plan, or initiate aggressive invasions, and wage aggressive wars, and those who knowingly participate therein are subject to trial, and if convicted, to punishment."

And even if Adolf Eichmann were to stand trial in that country where Defence Counsel wants to place him on trial - in the Federal Republic - even there he would not be able to find justification or defence in the argument that we have heard here.

In one of the latest judgments of the Supreme Court of West Germany, which the Court will find in Neue Juristische Wochenschrift of 23 February 1961, page 373, the question of the application of Section 47 of the German military code was discussed. We shall shortly submit Section 47 to you. Section 47 lays down that an order constitutes justification; an illegal order does not constitute justification for an illegal act. It was so before the Nazis; it was so in the time of the Nazis and it is so today. It even applied to the special disciplinary laws of the SS. And this is what the German Supreme Court had to say and I quote the original:

"Zur Bestrafung nach Artikel 47 genuegt es schon, wenn der Untergebene in seiner Vorstellungs - und Begriffswelt auf Grund der ihm eigenen und gelaeufigen Denkweise zu dem Bewusstein durchgedrungen ist, dass die befohlene Handlung etwa Unrechtes darstellt" (That is to say if a man has a feeling that what he is ordered to do...
Presiding Judge: It says there: according to his concepts.

Attorney General: According to his concepts.

To be punished in terms of Section 47 it is sufficient if the subordinate according to his ideas and concepts, in his own familiar way of thinking, has become aware that the act which he has been ordered to perform is wrongful.

Let Adolf Eichmann come and explain whether the murder of millions, their deportation to concentration camps and their killing by asphyxiation - whether, according to his feelings and conscience - these were legal or not.

I also have before me the judgment of the District Court of Ulm which tried a number of persons accused on a small segment of the extermination front. This was handed down on 10 August 1959. It is true that this was only the Ulmer Landesgericht (the District Court of Ulm).

Presiding Judge: Would you please submit this to us, so that we may examine it?

Attorney General: Yes. At the foot of page 145 and on page 146. The Court says that the Accused could not argue...

Presiding Judge: Is all this the judgment, from page 145 onwards?

Attorney General: Yes.

"Die Angeklagten koennen auch nicht mit Erfolg als Rechtfertigsgrund geltend machen, Hitler's Befehl sei oberstes Gebot gewesen" (The accused also cannot succeed with the defence, that Hitler's order was a supreme commandment).
Presiding Judge: After you have given us the judgment of the Supreme Court, then perhaps...

Attorney General: There is here, a detailed analysis of acts which are very similar to the deeds for which the Accused has been brought to trial. I want to show that even if the wishes of the Defence Counsel were to be fulfilled, this argument at all events would not have availed him. Consequently this whole argument - to the effect that his position in Israel is much worse because we have a law for punishing Nazis which deprives him of certain lines of defence - is not correct. He would not have these defences anywhere, not even in that country where he wants to be tried, but which has not made any demand at all to try him and which has left the right of trying him to Israel.

Presiding Judge: But, again, as my colleague Judge Halevi has pointed out, the problem is slightly different. The problem is nevertheless one of international law. It seems to me that it is not a complete reply to say that a German court would not have recognized such a defence.

Attorney General: I have already said, two days ago, that from the point of view of replying to this Court, I am saying simply: "There is the law and you, Judges of Israel are required to act in accordance with the law."

Presiding Judge: If that is the case, we do not need these German judgments.

Attorney General: I agree that all this is unnecessary. But it was said here that the Accused will not have a fair trial. He cannot plead this defence before you, as I maintain. He cannot plead this defence anywhere.

Presiding Judge: Good.

Attorney General: To sum up, international society which has condemned the persecution of Jews has openly expressed its view that Adolf Eichmann should stand trial. He is standing trial according to a law which today is the heritage of all civilized nations. His argument that he was brought here forcibly does not make any difference. I have brought before you many quotations from judgments which show that by whichever way a man has been brought within the Court's jurisdiction - by private individuals, by persons who are unofficial agents of the Government, even by the Government's official representatives - any such way cannot be subjected to the scrutiny of the Court and is not decisive on the question of guilt or of competence. The Court before whom the man is accused has jurisdiction, and where he is indicted according to law and when he is tried before a competent Court from the point of view of procedure, all these requirements have been fulfilled in the case before us.

I dwelt at length on the territorial principle. These laws, by their very nature, must be exterritorial, and there is nothing to disqualify legislation of this sort, in regard to other laws as well. The "Lotus" case proves this. Furthermore, the right to try Nazi criminals according to rules which are continually being crystallized, is a universal right of all civilized nations. The State of Israel has the right to try the man who attempted to annihilate the Jewish people, no less, and perhaps more, than any other country.

Presiding Judge: With regard to exterritoriality, you can also rely on the German criminal law which also punishes acts aimed against the German people which were committed abroad by foreigners.

Attorney General: I am aware of this, Your Honour, but I am not very keen to rely on this law since it is a Nazi law.

Judge Halevi: A Nazi law?

Attorney General: It was adopted in the year 1940, and although it is in force to this day...

Judge Halevi: To this day?

Attorney General: ...I did not want to make a comparison especially between the law for the punishment of the Nazis, and a law enacted in Germany by the Nazis, even if it is in force to this day. But there is a long list of other laws. I shall submit this list to you - all the statute books of enlightened, civilized nations, we have collected the Codes themselves, together with the list - and we shall submit to the Court this stack of books in order to establish that such legislation is not exceptional and that it is permitted and valid. As to the fairness of the trial, I deeply regret what Defence Counsel has had to say. Although it was clothed in delicate and polite manner - "the Accused is afraid that he will not have a fair trial here."

Jewish judges who are bound by the principle that there should be "one law for the person born in the land and for the stranger in your midst" and who are faithful to the principle of doing justice will administer justice to Adolf Eichmann as well. If he is apprehensive, possibly his fear is well-founded. But he would also have had this well- founded fear, if he were to stand before a tribunal in any other country and in any other place.

I request the Court to reject the argument for the Defence and to decide that it possesses jurisdiction to try the Accused; and to order him to plead to the indictment.

Presiding Judge: Thank you, Mr. Hausner. I have one question of fact which occurs to me in relation to many of the American authorities you quoted: what about the extradition treaty between Israel and Argentina - is it still in force?

Attorney General: No Your Honour. It was initialled, but the treaty has not yet been ratified.

Presiding Judge: Perhaps you can give me the dates.

Attorney General: As far as I can remember - and I am ready to check this - the treaty was initialled in 1958, but there has been no ratification. Therefore it does not apply.

Presiding Judge: There has been no ratification to this day?

Attorney General: I believe - to this day. If the Court is interested in the exchange of Notes between us and Argentina, these were published in the official records of the United Nations and I am prepared to submit this volume to the Court. Of course it does not contain the Notes that were exchanged after June 1960, and not that particular Note which liquidated the incident, which I submitted to you separately.

Presiding Judge: But is there anything there about the extradition treaty?

Attorney General: No, there is nothing.

Presiding Judge: At all events, please hand in the volume - it will do no harm.

A further question - does Israel have an extradition agreement with West Germany?

Attorney General: No, we do not.

Presiding Judge: Dr. Servatius, please.

Dr. Servatius: Mr. President, Judges of the Court. At this stage of the proceedings we are dealing only with the jurisdiction of the Court. We are not dealing with the guilt of the Accused and the fairness of the trial. Therefore, my remarks will concern only the question of jurisdiction. The Attorney General has brought forward, with weighty arguments, the conception that the Nazi and Nazi Collaborators (Punishment) Law fills a legal vacuum, according to him it follows...

Presiding Judge: Please repeat that last sentence - it was said rather quickly.

Judge Halevi: The last sentence was: The Israel law follows in the wake of the London Agreement and in the wake of the Nuremberg judgment.

Presiding Judge: Please continue.

Dr. Servatius: An examination will show that the vacuum existing in international law after the Second World War was not actually filled. It appears that the London Charter deals only with the law of occupation which could be applied only to the vanquished. The period following showed that atrocities in other areas of the world have remained unheeded. Customs and practices of those exercising political power have remained as they were. There has been no progress in the legal development which the world anticipated.

The Genocide Convention did not come into force in accordance with the principle of universal law - it withered away through the principle of territoriality. At the United Nations the drafts of the Commission on Human Rights and of the International Criminal Law Commission remain as a mere wish and an attempt at action by idealists. At the same time there is the threat of a danger which must be avoided - in various parts of the world. But the leaders of the countries are not concerned.

The Prosecution has also expressed the attitude that even on its own initiative the State of Israel is entitled to fill the vacuum by means of its own law. This action is a requirement enshrined in natural law. But restrictions have been placed upon this natural law by international law. For the purpose of generating the right of bringing a person to trial, according to international law, there must exist some connection with the person committing the act. The right of bringing a man to trial may reach out beyond the territory. This fact is illustrated by the principle of protection. It arises out of the "Lotus" case which was quoted by the Prosecution. The same applies to the case of a currency offence, by a Belgian woman in Holland, and also to the matter of treason in the Joyce case in England. All these instances were cited in the Prosecution's argument. An unrestricted extension of the right to bring a person to trial is contrary to international law. Similarly, the Nazis and Nazi Collaborators (Punishment) Law cannot create in the absence of a recognized connecting link, any sovereign right of punishment, and hence any competence in respect of persons outside jurisdiction.

Presiding Judge: One of the recognized principles is - the personal principle; and a subsidiary principle is - the passive personal principle. What about this principle in respect of our law, namely the protection of victims of criminal acts? This principle is very close to the principle of protection. I am going according to the usual division.

Dr. Servatius: But, Your Honour, the victims were not citizens of the state at the time they endured their suffering.

Judge Halevi: Is this not a purely formal argument?

Dr. Servatius: But surely the law is based and exists on formal issues, and this is one of the matters which the Court will have to consider very seriously.

Judge Halevi: Sir, one more question - the same question which I asked the Attorney General in relation to the German criminal law, Paragraph 4, which is still in force today. I am not of the opinion that this is a Nazi law, despite the fact that it was enacted in the Nazi period. In Paragraph 4 it says: "Fuer eine von einem Auslaeder in Auslande begangene Strafrat gilt das deutsche Strafrecht, wenn sie durch das Recht des Tatorts mit Strafe bedroht und wenn die Straftat gegen das deutsche Volk oder gegen einen deutschen Staatsangehoerigen gerichtet ist..." (The German criminal law is applicable to an offence committed by foreigners abroad if it is punishable under the law of the place where it is committed...and if the offence is directed against the German people or against a German national).

Dr. Servatius: This law goes very far and fits German jurisdiction at the present time. It seems that it would not be possible to apply this law to the circumstances here, since we are concerned with people who were not citizens of this country at the time.

Judge Halevi: But the German people is also mentioned there; not merely German citizens, but also the German people.

Dr. Servatius: That is correct. But further, the State of Israel did not exist at the time. This too is a contradiction arising out of the formal law, and the Court will have to examine to what extent it recognizes this principle.

Judge Halevi: Yes, but the German people is a much wider concept than the German State, in the same way as the Jewish people is a different concept from the State of Israel.

Dr. Servatius: If I may be permitted to reply to this, the concept of the German people is not a legal concept in German law. The reference is not to the German people as a whole but to the people of the German State, and this is now restricted to the area of the Federal republic.

If the matter were feasible from the legal point of view without some point of support recognized by the law of nations then even the newly-set-up states would be entitled to enact laws for bringing to justice all those described today as "colonial overlords." The law of nations will not per mit this.

The Prosecution pointed to the fact that a number of countries, after the War, enacted valid legislation for the purpose of closing existing gaps. But this only refers to those states which were occupied by Germany during the War. In fact these laws were merely laws for implementing the London Agreement and analogous arrangements after the War. The tendency to observe the restrictions of the law of nations is always maintained. Here, in the case of the Accused Eichmann, no vacuum of this nature exists. There exists a competent German court, and the German court judges in accordance with valid existing laws. The Prosecution itself indicated this. A large number of persons have been brought to trial before a competent German court, and have actually been judged, having been accused of crimes similar to those with which the Accused is charged.

There is another point. The court must be authorized to examine the validity of the law upon which the right of prosecuting an accused rests. Not everything that the legislator decides is necessarily law. There are limits in a State observing the rule of law.

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