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Shofar FTP Archive File: people/e/eichmann.adolf/transcripts/Appeal/Appeal-Session-02-03

Archive/File: people/e/eichmann.adolf/transcripts/Appeal/Appeal-Session-02-03
Last-Modified: 1999/06/15

The further the person bound to obey is removed from the
final act of the offence, the more difficult it becomes,
and the more uncertain for him to judge the impact as
against the imminent danger. But the witness, Professor
Six, testified that it was quite possible to evade
service. However, it was precisely this witness who
refused to grant the application for transfer to Linz
which the Accused filed in Vienna, and prevented the
Accused's leaving the RSHA and being posted to his home
town of Linz. The application submitted by the Accused's
immediate superior, Naumann, was granted. After the
beginning of the War, submitting applications for transfer
was prohibited by a disciplinary regulation.

The Accused's statement that, after his terrible
experiences in the extermination camps, he had pleaded for
a transfer from his post, should be given credence. His
pleading was of no avail. He was compelled to stay on, and
he found himself in a situation of distress. The District
Court has misjudged this situation.

The Accused's attitude can be relevant for the degree of
punishment. I am convinced that the District Court was
wrong in believing that the Accused was motivated by
hatred and zeal. The Accused has put down in writing his
feelings and thoughts in the last part of a manuscript
which is in the possession of the police. I have applied
in writing to append this manuscript, and I repeat my

I know that the Accused has constantly struggled with the
problem of his guilt. But the establishment of a true
contact with the Accused was hampered by the use of a
microphone, the glass partition and other security
measures. I think that the Accused's notes will show true
understanding as well as his endeavours to convince
others, who so far have failed to understand.

The Accused is aware of the enormous guilt in which he had
become entangled. However, no solution has yet been found
to the conflict between this guilt and the conviction that
he was dragged into this guilt against his own volition.
This situation of conflict does not exist in the person of
the Accused only. It is a burden upon all those who were
involved  in the events, directly or remotely. The problem
has not yet been coped with. The appropriate word has yet
to be coined for that special purpose.

The Accused cannot be judged according to rules adopted by
prevailing democratic conceptions. You have to go back to
the time when the events occurred. Despotism ruled, and
what that means can be learned from Montesqieu's Esprit
des Lois, Book 3, Chapter 10, where it says:

     "In despotic regimes, government exacts utter
     obedience, and the will of the prince, once it has
     been made known, must take its effect without fail,
     just as [in a game of bowls] one bowl hitting another
     produces its effect on it. No fit of temper, no
     giving in, no compromise, no negotiations, no
     representations are of
     any avail. No equivalent may be proposed and no
     better proposals may be made. Man is a creature
     obeying another creature who has a will. It is
     useless to oppose natural sentiments, respect of the
     father, love of wife and children, honour, health.
     You are given an order, and that is enough."
In such circumstances, the command alone is responsible.
This situation has nothing to do with the despicable
habits of a mercenary. All this ought to be considered
when determining the degree of punishment.

The Court is well aware of the opposition of the majority
of countries to the imposition of the death penalty. The
death penalty was rejected by Jean-Jacques Rousseau in his
Le Contrat social, in the chapter "On the right to decide
upon life and death," where it is said:

     " No villain exists who cannot be led the right way.
     You have no right to kill him, even not as a
     deterrent, if you may keep him alive without
     endangering yourself."
The Accused is not dangerous. He might even be helpful in
averting danger.

This brings my arguments to an end. I ask for a decision

on my applications for taking evidence and to amend the

Judgment of the District Court and to mitigate the measure

of the penalty.

President:  Thank you very much, Dr. Servatius.

Mr. Hausner, are you ready to begin now?

Attorney General:  Yes, Your Honour.

President:  Please proceed.

Attorney General:  With the Court's permission, the cross
examination of the Accused in these proceedings in Session
88 (Vol. IV, p. 1575), began with the following questions
and answers:

     "Attorney General:  During your interrogation by the
     police you said, at the end of your first Statement:
     `I know that I shall be found guilty of being an
     accomplice to murder. It is clear to me that I may
     expect the death penalty. I do not ask for mercy, for
     I do not deserve it.' You said that you were willing
     to hang yourself in order to atone for the horrible
     crimes that occurred... Are you prepared to repeat
     this here, in Court?
     "Accused  I stand by these words in my Statement..." 

     Q.  You do admit, therefore, that you were an
     accomplice to the murder of millions of Jews?

     "A.  No, that I cannot admit. From the...point of
     view of human guilt... I must sit in judgment with this respect I must admit that I have
     played my part... From the legal point of view, as a
     recipient of orders, I had no choice but to carry our
     the orders I received."

I omit several lines. My next question:

     "Q.  My question is not juridical. Do you consider
     yourself guilty of being an accomplice to the murder
     of millions of Jews - yes or no?

     "A.  Guilty from the human point of view, because I
     am guilty of having carried out the deportations."

Out of his own mouth he condemned himself, Your Honour,
the President, and he entertained no further doubt about
his moral guilt. He was seeking a way out in the
distinction between legal guilt and moral guilt. After his
acts were examined in legal terms, and after it was
determined that he was also guilty according to the law -
our law, any civilized law, including the laws of the
state in which he wishes to be judged today, and after it
was determined that the moral guilt for the terrible deeds
to which he had confessed embodies a whole series of
crimes, the like of which there has never been - he
declared to the Court that his hope of a just trial had
been disappointed. As a substitute for his conviction, he
is proposing to ask for the Jewish People's forgiveness,
without this being interpreted as hypocrisy on his part,
as he said (Session 120, Vol. V).

There are several grounds on which the Appellant argues
that the legal decision should be set aside. Firstly,
disqualification of the judges: The District Court should
not have judged him - so he argues - since he is charged
with crimes against the Jewish People, of which the Judges
are part. He argues the same point equally in respect of
the Supreme Court, and he is attempting a priori to
nullify your verdict because of your national affiliation
to the Jewish People. This argument would apply to any
Jewish judge in the entire world, not just in Israel. In
other words, because the Jewish People suffered from Adolf
Eichmann's acts, because he is charged with the murder of
millions of Jews, for this very reason - according to the
Appellant's argument - no Jew is qualified to sit in
judgment on him.

Elsewhere it has been argued concerning those sections of
the indictment which deal with crimes against Poles,
Czechs and Gypsies that we have no jurisdiction in respect
of acts perpetrated against these peoples. In other words,
an Israeli judge is utterly disqualified. In respect of
trying crimes perpetrated against his own people, he is
disqualified for psychological reasons, because supposedly
he cannot be objective; in respect of trying crimes
against other peoples, he is disqualified because this
does not concern him.

The Appellant's representative has praised and
complimented the District Court on the grounds that its
judges made every effort to overcome their feelings, and
that the trial was conducted fairly. But this did not - he
argued - make them objective. And Counsel for the Defence
is demanding objectivity not only in respect of the
Accused, but also in respect of what happened; not only in
respect of Adolf Eichmann, but also in respect of the
crime of genocide.

When I discussed this argument, when it was advanced in
the Court of the First Instance, I said then - and I shall
repeat now: "If anywhere in the entire world there is a
man who occupies a judicial position who can honestly say
about himself that he is objective and neutral in respect of the
crime of genocide, about the murder of millions, about the
slaying and execution of millions of infants and children;
if he is not appalled to the depths of his being at
hearing these atrocities and is not utterly revolted by
them in every fibre of his body and soul - then it is that
judge who is disqualified from trying such a case." There
can be no objectivity and no neutrality in respect of
crime. But even the deepseated mental anguish of the
judges of the Lower Court,  of any judge in the world in
respect of the Holocaust visited upon the Jewish People,
did not prevent them from being strict as regards proof of
the Accused's guilt according to all the legislation and
the rules prescribed by the law. The whole trial was
informed by the Court's absolute determination to examine
every piece of evidence and proof submitted by us with the
utmost care and to be utterly meticulous, especially in
respect of the scope and admissibility of testimony and
evidence. The Court's meticulousness in weighing the
material concerning the Accused was reflected throughout
its Judgment.

Israel's judges were not neutral in respect of the crime,
but they were just and fair in respect of the Accused.
They excluded several items of evidence for which the
Prosecution fought hard, and of course they gave the
Accused every possibility of defending himself. This is
precisely the duty of a judge. His attitude towards crimes
is not one of indifference, as Professor Goodheart said in
an article quoted in Session No. 1 (Vol. I, p. 11): If all
cases had to be tried by a neutral judge, then no state
could try a spy, because his case is always heard by
judges representing the country damaged by the accused.
What Goodheart says is this:

"It has been argued that the Tribunal cannot be regarded
as a court in the true sense 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 Wright 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 have been given the rank of
Major General for the purpose of the trial, but it was
decided that it was not desirable to disguise their
essentially 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
innocence of any Defendant shall give the reasons on which
it is based'."

In our case, all three of these requirements have been
satisfied. Counsel for the Defence complains in vain that
the civilized world followed the proceedings with intense
interest, through radio and television coverage, reports
and articles. This is precisely one of the guarantees for
the fairness of the Court - that it is hearing the case in
the full glare of public opinion both in Israel and
throughout the entire world.

The judge must be fair; but as has been argued, he cannot
be neutral in respect of good and evil. The Appellant
wishes to be judged by German judges, and by German judges
only. He does not suggest to us that the proceedings
against him be transferred to a Soviet, French, Polish,
Dutch, Czech, Hungarian, Norwegian or Belgian court, or
one in any of the other countries in which he committed
his crimes.  He wants German judges, and German judges
only. In his eyes, they are the only ones who are not
incompetent to judge him. In other words: Their national
affiliation to the people from whom the murderers sprang
does not disqualify the judges; on the contrary, it
qualifies them, in his eyes, to sit in judgment on him.
Rather, it is national affiliation to the people of the
victims which in his eyes disqualifies the judges from
trying him. This is an utterly absurd argument.
International law recognizes the right of the people of
the victims to try the criminals. The Genocide Convention
is proof of this: Paragraph 6 of the Convention states
that jurisdiction lies specifically with the country which
has been harmed. After Germany fell, all the countries
invaded by Hitler tried war criminals for the crimes they
had committed against their own nationals; Rudolf Hoess,
Commandant of Auschwitz, was not removed from the
jurisdiction of a Polish court; Wisliceny, Seidl and Rahm
were tried in Czechoslovakia and Rauter in a Dutch court;
Fuchs, Meisner and Helm were not removed from the
jurisdiction of a Yugoslav court - on the grounds that the
judges of these Allies could not be neutral in respect of
the crimes which the Germans committed against the
citizens of those countries.

Eichmann had a fair trial; he had the defence counsel of
his choice, and in order to appoint him, it was necessary
to change our Advocates Ordinance. The trial was conducted
in public, in the eyes of the world, and the sentence was
passed on the basis of a reasoned judgment, based entirely
on the evidence.

The second ground on the basis of which the Appellant
argues for disqualification is that of retroactive
legislation. I fear that the Appellant is confusing the
law on punishing Nazi crimes with Acts of State. There is
no link whatsoever between these two arguments. A law may
be retroactive and will not apply to an individual who
acted on behalf of his state, and vice versa; it may be
valid for acts performed from the day of its enactment and
thereafter, without making any exception for Acts of
State. Such is the Law on the
Prevention and Punishment of the Crime of Genocide which
is not retroactive, it applies only from the day of its
enactment and thereafter. But it explicitly ascribes penal
responsibility also to those who act on behalf of the

Justice Silberg:  Did he confuse these two matters?

Attorney General:  Yes, because it says that the State of
Israel, in its sovereign territory, may perhaps be able to
enact retroactive legislation, but not if its effect
applies to persons who acted on behalf of the state.
However, the two are not connected.

Paragraph 4 of the Genocide Convention states: "Those who
commit this crime shall be responsible for their acts
whether they are leaders, public officials, or private
individuals." I would deal briefly with the substance of
the argument about ex post facto laws by citing the editor
of the series, Law Reports of Trials of War Criminals,
Lord Wright, who made the following points in Volume 15,
at page 170, line 4...

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