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Session No. 5

28 NISSAN 5721 (14 April 1961)

Presiding Judge:  I declare the fifth session open. The
Attorney General may continue his argument.

Attorney General: May it please the Court. I have already in
previous sessions, replied to most of Defence Counsel's oral
and written submissions and arguments. To the extent that
Defence Counsel relies on the minority opinion in the
Nuremberg judgments and on the views of those few authors
in whose eyes the Nuremberg principles are still a matter of
controversy, I have only the following to say: At the heavy
cost of millions of souls, international law has made a
breakthrough and finally, even if belatedly, laid down its
principles in writing. It did not renew anything, but simply
formulated them. And this Court - of the nation which was
the first to proclaim in human history "they  shall beat
their swords into ploughshares" - this Court will not lend
its hand to turning the clock back, to nullifying the
achievements which the human race accomplished after two
world wars in one and the same generation. Meanwhile the
principles of the Nuremberg trials have found their way into
those charters and international treaties which I have
already mentioned. I have not seen a single judgment since
the War in which the Court refused to take notice of, and
act in conformity with, those principles. The State of
Israel will not be the one and only country to do so.

And now with somewhat more detail on one argument which I
have already dealt with but which necessitates a more
specific reply in the light of the written argument, and
that is the argument of "Act of State." This argument covers
twenty pages and more of the written submissions.

Presiding Judge:  Is that not Kelsen's theory?

Attorney General: Kelsen's theory. And this is how Defence
Counsel sums it up on page thirty-five of his argument:

     "It follows, therefore, from this paragraph that the
     principle of 'Act of State' denies any competence to
     the State of Israel. Any judicial process against
     Eichmann will, therefore, be a departure from
     international law."

To the extent that the matter relates to international law,
a decisive answer has been given to this argument in the
Nuremberg trials. It was rejected outright. In the judgment
of the International Military Tribunal, in the Blue Series ,
on page 223, it is stated (I am reading from the English

     "The principle of International Law, which under
     certain circumstances, protects the representatives of
     a state, cannot be applied to acts which are condemned
     as criminal by international law. The authors of these
     acts cannot shelter  themselves behind their official
     position in order to be freed from punishment in
     appropriate  proceedings."

Presiding Judge:  This book of Kelsen's was published before
the judgment - in 1944?

Attorney General: Yes, but Defence Counsel says that Kelsen
did not change his mind even in the 1952 edition. He still
stands by the doctrine that there is no common denominator
amongst the Family of Nations in international criminal
procedure, and that each one should go his own way according
to his own justice and his own laws. Kelsen still does not
acknowledge the great achievement of the judgment of 1
October 1946, and he is amongst those who query that ruling,
possibly to this day -  I do not know about his recent
publications. But his is one of the few individual  voices,
and the balance in international legal discussions is
decisively in favour of the Nuremberg principles. It is so
in international treaties and in international legal
literature; and if the Court would look at what Oppenheim
says today in his second volume - this for the time being in
its seventh edition only, but it also goes back to the year
1952 - the Court would see that Oppenheim rejects Kelsen's
idea. I read from page 566, paragraph 251:

     "In contradistinction to hostile acts of soldiers by
     which the latter do not lose their privilege of being
     treated as lawful members of armed forces, war crimes
     are such hostile or other acts of soldiers or other
     individuals as may be punished by the enemy on capture
     of the offenders. They include acts contrary to
     international law perpetrated in violation of the law
     of the criminal's own State, such as killing or plunder
     for satisfying private lust and gain, as well as
     criminal acts contrary to the laws of war committed by
     order on behalf the enemy State. To that extent the
     notion of war crimes is based on the view that States
     and their organs are subject to criminal responsibility
     under International Law."

And on page 568:

     "The fact that a rule of warfare has been violated in
     pursuance of an order of the belligerent Government or
     of an individual belligerent commander does not deprive
     the act in question of its character as a war crime;
     neither does it, in principle, confer upon the
     perpetrator immunity from punishment by the injured
     belligerent. A different view has occasionally been
     adopted in military manuals and by writers, but it is
     difficult to regard it as expressing a sound legal

There is a "different view" but that is not the correct
legal principle.

Judge Halevi:  Mr. Attorney General, does the whole
idictment deal with the War period or are there also details
prior to the War of 1939?

Attorney General: There are details preceding the War
period. I shall reach these presently, your Honour. If your
Honour is asking me, I am prepared to reply immediately
although it interrupts my main argument on this point.

Judge Halevi:  Because the authorities relate to the War.

Attorney General: Not all the authorities relate to the War.
The authority of the International Military Tribunal does
relate to the War, but the authorities of the Green Series
which is based on Law No. 10 of the Control Council does not
relate solely to the question of the War, but there occurred
an interesting incident of a comma and a semicolon in the
London Charter, which led to a difference between the
Russian text and the English text in the definition of
crimes against humanity. The English text reads as if only
such acts as were connected with war crimes were also crimes
against humanity; and in a special accord signed between the
powers this version was accepted for crimes against
humanity. But already the I.M.T. itself had dealt with
conspiracy to make war, also in the period which preceded 1
September 1939, and it found the major war criminals guilty
of such conspiracy also in respect of their acts which
preceded the declaration of the Second World War. But it is
true that in the case of crimes against humanity it limited
itself to the War period only, because of that difference
between a comma and a semicolon which the Court will find in
the course of the Moscow Declaration, the London Agreement
and the Nuremberg Charter, in Volume Three of the Green

Presiding Judge:  I think we have a local decision on this
point - I think of Judge Lamm.

Attorney General: We do, but I go further and say that the
Law of the Control Council had already not been adversely
affected by that fault in punctuation and furthermore the
Nazis and Nazi Collaborators (Punishment) Law 5710-1950 is
not linked specially to the War period but applies to the
whole period of the Nazi regime, and it represents an
Israeli contribution to the filling of that void of which I
have already spoken at length; the legal vacuum that the
Nazis created, deliberately and maliciously, to cover up
their crimes.

From the point of view of Israel's internal law, the defence
of an "Act of State" finds expression in Section 19 of the
Criminal Code Ordinance of 1936, in both its parts. It is
this section that gives justification for criminal acts...
Presiding Judge:  Mr. Hausner, is this relevant to the
matter being discussed now - does our internal law concern
the matter being discussed?

Attorney General: Yes - I say that section 19 does not
apply. This is what the legislator stipulated in the Nazis
and Nazi Collaborators (Punishment) Law in this way, as it
were, it introduced into our law the same provision which
was inserted into the London Agreement, namely that Heads of
State, officials and agents of the State should bear
responsibility. I say that the exclusion of section 19 for
the purposes of the Nazis and Nazi Collaborators
(Punishment) Law is equivalent to introducing that same
positive provision into that legislation, making the agents
of the State responsible - despite the fact that they could
claim that they performed their acts in consequence of their
official duties. Perhaps I may analyse this argument if I
have not explained it sufficiently.

Presiding Judge:  I understand. I simply have some doubts.
Possibly they wanted to abolish the restrictions contained
in section 19 itself. Section 19 is limited.

Attorney General: We do not have the defence of an "Act of
State" in Israel law except in accordance with section 19.
This is the justification - that a man can say "I acted in
order to execute a particular law"- that is Section 19(a),
or "in order to execute a particular order, a lawful
instruction which I received"- that is Section 19(b).

Judge Raveh:  Mr.  Hausner, are you actually suggesting that
we deal with this question and take a decision on it without
having heard proof as to the facts?

Attorney General: This of course would be my alternative
reply. But I submit that also for the purposes of the
preliminary discussion and assuming that Defence Counsel
will succeed in proving that everything done by the Accused
was done by virtue of orders, even then that is no defence
and that is no justification and he cannot derive any help
from it. We shall prove to you that he departed from the
limits of his instructions, and that he was much more
extreme, much more obdurate, much more enthusiastic in the
extermination of the Jews than was required by the orders he

Judge Halevi:  This is premature at this stage.

Attorney General: We shall prove this even if Defence
Counsel manages to establish that all that Adolph Eichmann
did was only within the limits of his instructions. I want
to say further: The deletion of Section 19 for the purposes
of the Nazi and Nazi Collaborators (Punishment) Law, which
is the effect of Section 8 of that Law, which states
specifically that Section 19 of the Criminal Law shall not
apply, denies to him and withholds from him the possibility
of such a defence.

Judge Raveh:  So then what do we have to lay down at this
stage - when we have to decide the question of competence?

Attorney General: It must be laid down that the question of
an "Act of State" is no defence, and makes no difference at

 Judge Halevi:  Defence Counsel is not arguing at this stage
that this is a defence, a defence on the merits, but that
this negates the jurisdiction, and that to the extent that
the Israeli law does not admit this defence, this in the
opinion of Defence Counsel would be contrary to
international law. Therefore, there is no need now to go
into the facts and the internal Israel law.

Attorney General: I understand this. But he is saying:  You
should not have enacted such a law, the Knesset of the
sovereign State of Israel had no right to pass the law as a
whole, and even more so had no right to insert Section 8.

Presiding Judge:  You are only showing us now what Section 8

Attorney General: Precisely. I shall show you what the
Israel law is. And I shall show you that Section 8 is in
accordance with international law and with the trend of the
law of nations.

In his book War Criminals, their Prosecution and Punishment
(1944), Sheldon Gluck (Professor of Criminal Law and
Criminology at Harvard University), while dealing with the
argument of "Act of State" for the purpose of these crimes,
writes on page 134:

"So runs the argument. But the examination of the Act of
State theory demonstrates its artificiality, legalistic
nihilism and inapplicability, when dealing with the
effective enforcement of the laws and customs of warfare."

Presiding Judge:  I think Dr. Servatius cited that paragraph
in his arguments. He obviously challenges him.

Attorney General: He quotes an adjoining paragraph, but this
makes no difference. I maintain that Sheldon Gluck set out
the correct law. And if we look at what American military
tribunals, which were only called military, decided in
regard to the same law...

Presiding Judge:  On page 30 of Defence Counsel's arguments
you will find the words: "artificiality, legalistic nihilism
and inapplicability."

Attorney General: Yes, he quotes later, in the following
section, from page 139 and hence I have relied more on that
passage. It is clear that there is an artificiality in this
argument, since, if such a defence were accepted, under the
conditions of a dictatorship such as Germany, there could
only have been one accused, and that would be Hitler, and
since that man is no longer alive, all the rest of those who
are accused of perpetrating war crimes could say: "Our hands
did not shed this blood and our eyes did not behold, since
he was the only one authorized to give orders, and we all
were his soldiers who were ordered to submit and to obey."

 Judge Halevi:  Not even he. As Head of State he, too, was

Attorney General: And he could also have been immune
according to the second doctrine of "Act of State," namely
that the Head of State, the sovereign, has immunity. But I
am not required at this time to deal with the subject of to
what extent the Head of State is immune or not.
International jurists have queried this ever since Napoleon
was exiled to Elba. There are those who think that it is
possible to take action against a Head of State, but I do
not have to go into this. It is not Adolf Hitler who is
sitting before you, but Adolf Eichmann. If we were to accept
the theory of "Act of State" as a defence, then anyone who
carried out Hitler's orders could justify himself for the
most terrible crimes. The conscience of the world shrinks
from this.

This is what an American military tribunal had to say in
Trial No 4 - the concentration camp case, United States
versus Pohl. This is to be found in the Green Series in
Volume 5, on page 968:

     "The Germans had become so accustomed to regimentation
     and government by decree that the protection of
     individual human rights by law was a forgotten idea.
     The fact that the people of the Eastern territories
     were torn from their homes, families divided, property
     confiscated, and the able-bodied herded into
     concentration camps, to work without pay for the
     perpetrators of these outrages - all this was
     complacently justified because a swollen tyrant in
     Berlin had scribbled "HH" on a piece of paper. And
     these are the men who now keep repeating: "nulla poena
     sine lege."

And, on page 974:

     "This disgraceful chapter in the history of Germany has
     been vividly portrayed in the judgment of the
     International Military Tribunal."

The reference is to the persecution of the Jews.

     "Nothing can be added to that comprehensive finding of
     facts, in which this Tribunal completely concurs. From
     it we see that the unholy spectacle of six million
     human beings deliberately exterminated by a civilized
     state whose only indictment was that its victims had
     been born in the wrong part of the world of forbears
     whom the murderers detested.
     Never before in history has man's inhumanity to man
     reached such depths."

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