Archive/File: people/e/eichmann.adolf/transcripts/Appeal/Appeal-Session-06-01 Last-Modified: 1999/06/15 President: Dr. Servatius, if you please. Dr. Servatius: Mr. President, Your Honours, first of all, I wish to comment on a number of issues raised by the Attorney General in respect of the jurisdiction of the Court to which I have not yet referred. As to the principle of universality of the criminal nature of the act and the authority to punish, the Attorney General has referred to piracy. At the outset, it has to be stressed that this concerns action against the will of the state. However, there were also letters of marque, by virtue of which acts of piracy were committed with the approval of the state. It was precisely in such cases that no universal power to punish existed. This shows that in politics the concepts of crime, and in particular of crimes against humanity, vary, and this results in variations of the scope of universal jurisdiction. Then, the Prosecutor has stressed that a number of penal laws for the punishment of war crimes and crimes against humanity have been enacted universally. He argues that, accordingly, the State of Israel is authorized and competent to enact similar criminal legislation. However, these laws were all enacted by states in whose territories the acts were committed. This is also in keeping with the Moscow and London Declarations, according to which the offenders ought to be returned to the states where they committed the acts imputed to them. The law enacted in Canada is based, apparently, upon the protective principle - that is to say, the injury caused to its own nationals, and in this case, obviously, prisoners of war. This condition does not exist in the Nazis and Nazi Collaborators (Punishment) Law. In my opinion, the principle of universality does not apply. The case of the Japanese NCO, Towono-Shito, who was tried by a British military tribunal for war crimes committed against American soldiers, proves only the claim to exercise criminal jurisdiction initially by proxy between the Allied Powers, but not the existence of the principle of universality. The Attorney General has further stated that the United Nations did not set up an international tribunal for the trial of crimes against humanity and, therefore, the State of Israel has the power of jurisdiction by virtue of a general mandate of the United Nations. But it is precisely the refusal to set up an international tribunal which shows that the principle of universality is not recognized by the practice of the states and that, in this matter, states reject any interference with their sovereign rights. This attitude of the United Nations contradicts the claim for universal jurisdiction which has been put forward. The Convention against Genocide is further evidence for the prevailing view as to the jurisdiction of the injured state. In this Convention the jurisdiction specifically depends upon the fact that the accused is actually in the custody of the injured state. This jurisdiction is, in addition, based upon the agreement concluded between the signatories precisely for that purpose. The current opinion of states as to the universal power of punishment in the present case, emerges distinctly from the resolution of the Security Council of the United Nations, negating the right of jurisdiction of the State of Israel. Another issue is the view held by the Attorney General that the Israeli Court is vested with jurisdiction, notwithstanding the Accused's abduction. The Attorney General denies the existence of escape from justice in the precedents quoted by him. I believe that I have not sufficiently explained the expression of "escape from justice" which I used. This is not escape from arrest, but generally leaving the area of jurisdiction and thus to escape from the court which has jurisdiction. Where such an escape from jurisdiction has been established, the Anglo- American court holds that an investigation of the facts is not required. However, in the case of the Accused Eichmann, the situation is basically different. It is precisely the existence of original jurisdiction that has not been established. And now to the irregularities of procedure. As for the irregularities of procedure claimed by the Defence, the Attorney General has submitted that the proceedings in the Israeli Court were the most appropriate, as witnesses and documents were available in Israel more than elsewhere. However, this applies only to the incriminating evidence and is advantageous for the Prosecution, but it does not apply to the Defence. The Accused has been restricted to searching for material in the evidence gathered by the Police, which had proved to be not convincing for the case of the Prosecution and therefore was not submitted to the Court by the Prosecution. However, all these documents are only fragments of the entire documentation, which, perhaps, might be adduced and might actually elucidate how each of these documents came into being. I also have to object to the Attorney General's view that the examination of the witnesses abroad, by way of taking evidence by commission, was more advantageous for the Accused, and that if the witnesses had been examined in the District Court, they most probably would have incriminated the Accused even more. It is my opinion that the evasive testimony of these witnesses which incriminated the Accused, would have been elucidated had they been examined in the District Court. The absence of the opportunity for cross- examination by the Accused was to his disadvantage. The testimony of these witnesses was also the subject of general legal objections raised by the Defence. These objections are hereby formally reiterated. The examination of all the witnesses which took place before the examining judge on commission, ought to have taken place in the Israeli Court. The Attorney General has, furthermore, dwelt upon the details on which the Accused, during his interrogation and the Defence during the trial, had already commented in full. I shall have to revert to some of these details. There is a summing up which has become famous, although it was never made. You find it in Dostoyevsky's novel "The Brothers Karamazov." There, the weighing of evidence is compared to a stick which has two ends. The result will differ depending from which end you approach the case to be judged. In both cases the outcome may look convincing. In the present case, the starting point has to be that the Accused acted in accordance with the whole organization and its apparatus of command not on his own, but only carried out what he was ordered to do within the framework of the organization. However, the starting point can also be each one of the events and you may conclude, from these events, that the Accused was not subject to that organization, but had acted independently. In so doing, single events are given weight which they should not have been given. Thus, the trial the purpose of which was to elucidate the general circumstances, concentrated on a small number of documents, like Wetzel, the skeletons, Kistarcsa and the foot march, and some others. The Attorney General disregards the basic plan for the division of functions. He also does not raise any objections to the charts, drawn up by the Accused, on the organization and power of command. I beg to draw your attention in particular to these charts - especially to the detailed timetable submitted by the Accused in his own handwriting. This meticulously defined chain of command did not exist on paper only; every office carefully guarded the powers given it. Furthermore, I wish to draw your attention to the dispute between the offices of the Reich Minister for Foreign Affairs, Ribbentrop, and those of Himmler. The existence of these disputes is revealed, partly, in the documents produced in evidence. This established organization shows distinctly who bore responsibility in their capacity as the Accused's superiors. The Attorney General briefly passed over these persons who bore the main responsibility, declaring that he never denied that they, too, were responsible. He states that the wording of the accusations made against the Accused was that he acted together with others. However, the others appear in this trial only as insignificant accessories. The Accused overshadows them all. One could imagine that if one of these main culprits had been arraigned here and claimed that the Accused had carried out all the measures against the Jews of his own accord, such a defence would have been rejected outright as baseless. It would have been met by the objection that Eichmann was only a clerk charged with implementation, and that they could not evade their own responsibility by taking refuge with him. In interpreting the documents, the elucidation which was already established by the District Court has been disregarded, namely, that, when writing in the first person, the Accused did not express his own views, but the views of the heads of the office upon whose orders he was acting. Again and again it is wrongly stressed that the Accused ordered or caused a certain thing to be done. Where, in respect of a Section Head, it is stated in a report that the Accused had "decided" or "ordered" something to be done, that, too, has been elucidated. These were instructions given to the Section Head, that is to say, instructions referring to the implementation of deportations which had been decided upon. I wish to draw your attention, in this respect, to the testimony of the witness Juettner, according to which the Accused was entrusted only with carrying out the technical aspects of the deportations. The Section Heads received their orders only from their commanders to whom they were subordinate. Despite all the explanations, the Section Heads are referred to by the Prosecution as "collaborators" of the Accused. Their subordination to the commanders, however, has been amply proved. Zoepf in the Netherlands, Dannecker in France and Italy were such Section Heads subordinate to the commanders of the SIPO and the SD. The Advisers in the diplomatic missions, too, were subordinate to the head of the mission. This was explained in respect of Richter, the Adviser, and later on Attache, in Romania. Further on, the Attorney General stated that none of the witnesses had confirmed that the position held by the Accused was insignificant. I think I have sufficiently proved what the witnesses who were subordinate to the Accused have emphasized in respect of his place of bureaucratic dependence. The emphasis on the station of the Accused was made only by a number of witnesses who desired in this manner to stress the minor importance of their own functions. Following are some examples. The witness Professor Six places the Accused, as a veteran member of the Party, on the same level as his superior, Lieutenant-General Mueller, and, in addition, with a number of incriminating features as regards his character. Professor Six proves, in this respect, to be a weak witness for the Prosecution. Professor Six, at that time, proved himself to have been successful in his position as an SS Section Head in the Head Office for Reich Security to such an extent that it had been intended to appoint him as commander of an SS advance command in London and Moscow. Even shortly before the end of the War, in autumn 1944, he headed a conference of the Counsellors for Jewish Affairs in the Ministry of Foreign Affairs which had been convened by this Ministry. That was a position far above that of the Accused. The witness Morgen, on whom the Prosecution relies in order to prove the Accused's position raises, in statements of a general nature, the Accused's position to such a level that the Accused is even called "Commander of the Extermination of the Jews." In his affidavit dated 19 July 1946 (T/75), however, the witness reveals the only relevant fact ascertained by him. He describes the activity of the extermination camps, together with the responsible persons Hoess and Bormann, and then continues: "Eichmann's organization existed apart from these units, and its functions consisted only of transporting the European Jews to the concentration camps, or the extermination camps, respectively." Attorney General: This is incorrect. Morgen's affidavit does not bear our number. The number is N/95. Dr. Servatius: I apologize for the mistake. Justice Silberg: Did you say Hess and Bormann or Hoess and Bormann? What is the connection between Hoess and Bormann? After all, Bormann was the Fuehrer's deputy. Dr. Servatius: I only repeated what is written in the affidavit. The testimony of the witness Wisliceny on the Accused's position does not bear any weight. The whole testimony of Wisliceny has been rightly rejected by the District Court. The efforts of this witness to exonerate himself through incriminating Eichmann, and in particular the offer to find the whereabouts of Eichmann and his family and to assist in his arrest, induced the Court to reject his testimony. It appears also that Hoess' testimony has not been considered by the District Court as being completely trustworthy. It is surprising that when the psychologist Dr. Gilbert was in the witness box, he stated that at Nuremberg Hoess had revealed to him the truth, in view of his own hopeless situation, and that he had not been motivated to exonerate himself by enhancing the importance of the Accused's position. Every psychologist will confirm that in embellishing his activity, a witness, even in a hopeless situation, will be most interested in his reputation, precisely for the benefit of his family. The Attorney General refers to the testimony of the witness von Thadden only with respect to the Accused's alleged uncompromising attitude. However, the witness von Thadden declares, regarding the activity of the Accused, with whom he maintained permanent contact, that the Accused never exceeded the scope of his authority. The testimonies of the Jewish witnesses, too, as to the position and activity of the Accused, have to be scrutinized. The District Court has already taken this into consideration. The members of the Jewish Communities and of the Judenrat had to deal with the Accused, and therefore he necessarily appeared in their eyes as the most powerful man. But memory may act as an element of exaggeration. This becomes evident, for instance, from Dr. Loewenherz' report made after the War, T/154. This report says that the Accused, in the office of the RSHA in Berlin, announced to the Judenrat the shooting of two hundred Jews, by way of retaliation for sabotage. However, an original memorandum by Dr. Loewenherz, written at the time of the event, points to Mueller as the person who made the announcement, T/821. This memorandum is also confirmed by the witness Moritz Henschel in a report submitted to the Court, exhibit T/649. This shows that mistakes may occur in the most relevant matters.
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