Archive/File: people/e/eichmann.adolf/transcripts/Judgment/Judgment-059 Last-Modified: 1999/05/27 187. We must now analyze the legal aspects of the Accused's acts during the third stage, namely the stage of the Final Solution. . The Attorney General argued that the plan for the Final Solution must be regarded as a criminal conspiracy for the carrying out of the countless criminal acts connected with the extermination of the Jews within the area of German influence. The Accused participated in this criminal conspiracy and, therefore, must be held liable ipso facto for all the offences committed to bring about its implementation, whether by a given action or a series of given actions, in whatever geographic area or any area of activities, whether committed with the active participation of the Accused or not. The Attorney General based this argument on the judgment of the Supreme Court in the case of Kaiser (C.A. 88/58, Piskei Din 12, 1628) and especially on the following passage (p. 1642): "Sections 35, 36 (Criminal Code Ordinance, 1936) stand by themselves in their definition of a specific crime. We are bound by virtue of Section 4 of the Ordinance to interpret it according to English law. In my opinion, under English law, the offence of conspiracy connotes a substantive rule of law, whereby the conspirators are jointly liable, and this without having regard to the general rules as to complicity. The conspirators are not mutually responsible for their deeds because they are partners to a crime within the meaning of Chapter V of the Criminal Code Ordinance, but because of an independent rule in the Law of Conspiracy." We are of the opinion that the Kaiser case is to be distinguished from the case before us, for two reasons: (a) There, the Accused were charged in the indictment, inter alia, also with specific offences of conspiracy, whilst in the matter before us the Attorney General did not include in the indictment a count of criminal conspiracy. (b) As far as we could ascertain, in the Kaiser case the offences against the Accused were misdemeanours, and the punishment to which the perpetrators of the completed crimes were liable did not exceed, or did not greatly exceed, the punishment provided in Sections 35 and 36 of the Criminal Code Ordinance, for a party in a conspiracy to commit misdemeanours (two years imprisonment). It is to be noticed that the Supreme Court in its dictum cites only Sections 35 and 36, and not Section 34, which deals with criminal conspiracy for the commission of a crime. In the case of a crime, punishments may vary considerably; in the case before us, the difference is between a sentence of seven years imprisonment for the offence of conspiracy, and the death sentence for the crimes themselves. 188. We hesitate to accept the proposition put forward by the Attorney General, as a general rule applicable in all cases. We do not consider that a person who consents to the perpetration of a criminal act or acts (for this is the essence of the conspiracy), makes himself ipso facto liable, without any additional ground of responsibility, as actual perpetrator of all those acts. It is true - and thus it was held in the case of Goldstein (C.A. 129/54, Piskei Din 10, 505) - that there exists a rule of substantive law, that once a criminal conspiracy has been entered into, then each of the conspirators becomes the agent of the others for the purpose of the conspiracy, so that every act committed by one of the conspirators, during the existence of the conspiracy, is deemed to be the act of all the conspirators, even if committed in their absence and without their previous knowledge. But here the emphasis is on the words "for the purpose of the conspiracy," and this ruling does not apply to the completed crime. Thus we also interpret the dictum appearing in an English judgment, in the case of Sweetland (1958) 42 Cr. App. R., quoted by the Attorney General: "Every act done by a conspirator in furtherance of the conspiracy is done on behalf of all the conspirators." In our opinion, the words "for the purpose of proving conspiracy" must also be added here. If we accepted the Attorney General's argument, we would destroy the statutory framework of Sections 23-25 of the Criminal Code Ordinance, defining the responsibility of the various partners to a crime. Such responsibility demands, in every case mentioned in those sections, something more than mere consent, such as soliciting, aiding, abetting, and even in the extreme case of common purpose, dealt with in Section 24, at least the presence of the Accused at the commission of the crime. 189. We are also of the opinion that in general the sections of our law are in conformity with the rules of English Common Law, from which they are derived. For instance, in the case of Bullock (1955) 1 All E.R. 15, the Court of Appeal in England quotes these words from a previous judgment - R.v. Lomas (1913) 9 Cr. A.R. 220): "Mere knowledge that the principal intends to commit a crime does not constitute an accessory before the fact." And the Court adds: "Mere knowledge is not, of itself, enough; there must be something further." And so also in the case of Crofts (1944) K.B. 295, where a man and a woman agreed together to commit suicide. The woman committed suicide, but the man did not keep the agreement. He was charged as an accessory to the crime of murder. The court says there: "This court is of opinion that mutual agreement to commit suicide amounts to such a counselling, procuring, inducing, advising or abetting as constitutes the survivor an accessory before the fact, even if he is not present when the other party to the agreement commits suicide..." that is to say, that the court found, in the circumstances, that in the very act of agreement there was also an element of mutual procuring and abetting to commit the offence. In the language of our law, we should say that the man was found guilty as an accomplice to the crime under Section 23(1)(b), (c) or (d), and not because of the mere fact of the agreement made with the woman, which, in English law, is considered a criminal conspiracy. In Russell on Crime, 11th edition, vol. 1, pp. 146-147, it is explained that a person may be convicted as an accomplice also by reason of "constructive presence" during the act, but on condition that he participates in the act by aiding, abetting or even by encouraging the principal offender, whilst the latter carries out his criminal intent. Here, too, we see no deviation from the law embodied in our Sections 23-25. 190. Although we did not accept the Attorney General's argument as put forward by him in his summing up, we are of the opinion that his general approach is correct, viz. that all the acts perpetrated during the implementation of the Final Solution of the Jewish Question are to be regarded as one single whole, and the Accused's criminal responsibility is to be decided upon accordingly. In our opinion, this is to be concluded not from the law of criminal conspiracy, but from the very nature of the "Final Solution," as being a crime against the Jewish People, in accordance with the legal definition of that crime. Elsewhere in this judgment we have already explained that, when drafting the definition of the Crime against the Jewish People, our legislator received his inspiration from the Convention for the Prevention of the Crime of Genocide. What is it that endows this crime with its special character in the criminal law of a state which adopts in its domestic legislation the definition of the crime of genocide? The answer is: the general sum total form which this crime is liable to take. This form is already indicated by the definition of the criminal intention necessary in this crime, which is general and total: the extermination of members of a group as such, i.e., a whole people or part of a people. As the Supreme Court said in the case of Pel (C.A. 119/51, Piskei Din 6, pp. 489, 502): "By Section 1 of the Nazis and Nazi Collaborators (Punishment) Law, 5710-1950, a person may also be found guilty of an offence which he in fact committed against specific persons, if the offence against those persons was committed as a result of an intent to harm the group, and the act which was committed by the offender against those persons was a kind of `part performance' of his malicious intent against the whole group, be it the Jewish People or any other part of the civilian population." But the distinction does not lie only between the intention required in the crime of genocide and in the individual crimes of homicide perpetrated during the commission of that crime; but also the criminal act itself ( actus reus) of genocide is different in its nature from the sum total of all the murders of individuals and the other crimes perpetrated during its execution. The people, in its entirety or in part, is the victim of the extermination which befalls it through the extermination of its sons and daughters. 191. The comprehensive nature of the crime against the Jewish People flows from the language of the definition in Section 1(b) of our Law; not only is the criminal intention, as required by the definition, an intention to exterminate directed against the Jewish People as such, but also the criminal act is defined in words which clearly connote the essence of the crime as an attack upon a group of people as such. It says there, "the killing of Jews," "causing serious harm to Jews," etc. - all this is in undetermined numbers, in complete contradistinction to the definitions of the usual crimes against the body, which are always referred to as attacks upon a person as an individual.
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