1 Iyar 5721 (17 April 1961)

Presiding Judge: I declare the sixth Session of the trial open. The Court delivers the following decision which is:

Decision No. 3

After the reading of the indictment, Dr. Servatius, Counsel for the Accused, raised two preliminary objections: the first regarding the disqualification of the judge sitting in judgment in this case, and the second regarding the lack of jurisdiction of the Court to consider the charges contained in the indictment.

We shall deal with these arguments in the order of presentation, and shall give our reasons as far as the first objection is concerned. In regard to the second we shall only announce our conclusion at this stage without giving our reasons for the time being.

With regard to the argument of disqualification, Dr. Servatius said that the Accused was apprehensive lest the judges should not be able to try this case without bias. The fear is expressed not against any of the judges in particular but against all three, on the grounds that they are sons of the Jewish people and citizens of the State of Israel. There are grounds for apprehension, so Counsel argues, that the recollection of the Holocaust in which millions of their people were destroyed, that Holocaust which constitutes the background to the crimes attributed in the indictment to the Accused, will adversely affect the impartiality of the judges and their ability to do justice. He also requested each of the Judges to ask himself whether his personal suffering or that of members of his family in the years of the Holocaust affect his ability to judge the Accused in this case.

To these arguments we reply: The subject of the charges in this case is the responsibility of the Accused for the acts described in the indictment. In the examination of this question it will not be difficult for us to maintain the guarantees ensured to the Accused in any case conducted according to our criminal law procedure, namely that every man is deemed to be innocent and that his case must be tried only on the basis of the evidence brought before the Court. Those charged with the task of judging are professional judges accustomed to weighing evidence and they will be carrying out their task under the critical gaze of the public; learned and experienced lawyers are defending the Accused.

As for the Accused's fear concerning the background against which this trial will be heard we can only repeat the principles which apply to every judicial system worthy of the name; that indeed while on the bench a judge does not cease to be flesh and blood, possessed of emotions and impulses. However he is required by law to subdue these emotions and impulses, for otherwise a judge will never be fit to consider a criminal charge which arouses feelings of revulsion, such as treason, murder or any other grave crime. It is true that the memory of the Holocaust shocks every Jew to the depth of his being, but when this case is brought before us we are obliged to overcome these emotions while sitting in judgment. This duty we shall fulfil.

After considering the arguments of learned Counsel for the Defence, this Court and each one of its judges regards itself as competent to try this case.

Dr. Servatius' objections to the jurisdiction of this Court were divided into two sections; firstly in regard to the circumstances in which the Accused was brought here from abroad, and secondly in regard to the validity of the Nazis and Nazi Collaborators (Punishment) Law 5710-1950 under which the Accused has been charged.

In respect of these objections extensive oral and written arguments have been submitted by both sides. We should like to express our appreciation to Defence Counsel and to the Attorney General for the high level of their arguments and for the manner of their presentation.

After full considerations of these arguments we have come to the conclusion that Defence Counsel's objections should be dismissed. The source of our authority to deal with this case is to be found in the above-mentioned law, and we do not believe that there is sufficient basis, in international law either, for Defence Counsel's objections relating to the application of the law, from the point of view of both place and time.

Similarly we dismiss Defence Counsel's argument on the subject of "Act of State," to the extent that they are directed against the Court's jurisdiction.

As for the arguments over the circumstances under which the Accused was brought to the State of Israel, in view of the fact that we have found that the Court has jurisdiction to try the Accused, the manner in which he was brought within the jurisdiction of this Court has no relevance according to law, neither has the fact whether he was apprehended abroad by emissaries of the governing authorities of the State of Israel or not. Accordingly there is no necessity to hear the evidence of the witnesses Tohar and Shimoni who were summoned here at the request of Defence Counsel.

We shall set out the detailed reasoning of our decision, so far as it touches upon the jurisdiction of the Court, in the judgment of the Court.

[To the Accused] Did you hear the indictment on the opening day of the trial?

Accused: Yes.

Presiding Judge: Are you guilty or not guilty on the first count?

Accused: In the sense of the indictment, no.

Presiding Judge: Are you guilty or not guilty, on the second count?

Accused: In the sense of the indictment, no.

Presiding Judge: Are you guilty or not guilty, on the third count?

Accused: In the sense of the indictment, no.

Presiding Judge: Are you guilty or not guilty, on the fourth count?

Accused: In the sense of the indictment, no.

Presiding Judge: Are you guilty or not guilty, on the fifth count?

Accused: In the sense of the indictment, no.

Presiding Judge: Are you guilty or not guilty, on the sixth count?

Accused: In the sense of the indictment, no.

Presiding Judge: Are you guilty or not guilty, on the seventh count?

Accused: In the sense of the indictment, no.

Presiding Judge: Are you guilty or not guilty on the eighth count?

Accused: In the sense of the indictment, no.

Presiding Judge: Are you guilty or not guilty, on the ninth count?

Accused: In the sense of the indictment, no.

Presiding Judge: Are you guilty or not guilty, on the tenth count?

Accused: In the sense of the indictment, no.

Presiding Judge: Are you guilty or not guilty, on the eleventh count?

Accused: In the sense of the indictment, no.

Presiding Judge: Are you guilty or not guilty, on the twelfth count?

Accused: In the sense of the indictment, no.

Presiding Judge: Are you guilty or not guilty, on the thirteenth count?

Accused: In the sense of the indictment, no.

Presiding Judge: Are you guilty or not guilty, on the fourteenth count?

Accused: In the sense of the indictment, no.

Presiding Judge: Are you guilty or not guilty, on the fifteenth count?

Accused: In the sense of the indictment, no.

Presiding Judge: I now read out my decision which is decision No. 4

Decision No. 4

I decide that the opening speech of the Attorney General shall be recorded by the stenographers, as laid down in my decision regarding the recording of the proceedings, dated 13 Nissan 5721 - 30 March 1961.

Presiding Judge: Mr. Attorney General, pray proceed.

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