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Last-Modified: 1999/06/14

[Attorney General, Continued]

All that is required in order to prove the agreement of the
conspirators, is that there should be one declared intent to
promote the joint purpose by concerted action. This is the
quotation from Kenny on page 2.

     "The conspiracy may be joined for a period limited in
     advance or a one-time commission of an act, or it may
     be set up for an indeterminate period, and for a
     purpose to be accomplished by acts which are not pre-
     determined, or anticipated in advance. From a judicial
     point of view such a conspiracy remains in effect as
     long as it has not been accomplished, and each one of
     the conspirators is presumed to continue as a party to
     the conspiracy, unless positive evidence has been
     adduced that he has withdrawn from it."

Here I have quoted the words of Mr. Justice Agranat in the
Heruti case (page 5 of the booklet) which is the judgment of
the majority. But I presume that the two judges, who
dissented from the majority opinion, also did not disagree
with the principle enunciated in that doctrine. This is also
the English doctrine as it appears in Kenny, 17th edition at
page 396 (page 6 in the booklet).

In his judgment in the Heruti case, Justice Agranat goes on
to say:

     "The continuity of the criminal conspiracy shall be
     deemed to have been proved prima facie once its
     existence has been proved at any point in time."

One of the basic aspects of the principle is that the
criminal should join the conspiracy of his own free will. In
the case before us the problem might well arise: Will the
fact that Eichmann remained as one of the company of
conspirators apply also to the period in which - as he
maintained - he was a soldier complying with orders? I shall
come back to a discussion of the fact involved in Eichmann's
status and the fulfilment of his duties. At this stage, and
for the sole purpose of the legal argument on this point,
let me assume, for his benefit - although I reject this
assumption completely - that indeed he was subject to
military discipline, and that he was not a free individual
able to rid himself of it. He maintains that his joining the
Nazi Party, whose extreme anti-Semitic platform was known to
everyone, as well as his entering the ranks of the SD and
taking upon himself the various tasks in which he dealt with
Jewish affairs, were undertaken of his free volition. In his
cross-examination he says that the only front on which he
was active, was the war against the Jews. And how he did
this in the first stage - this I have already described.

Presiding Judge: There was some argument to the effect that
he joined the SD by mistake.

Attorney General: That is what he said - that he joined the
SD by mistake. At any rate, this was in the period before
the War, and certainly not in a military context, and it was
assuredly not under duress, from which he was unable to free
himself, that he continued to remain in the SD. He says that
during the period of the War, when he was subject to
military discipline, he no longer had any alternative. We
shall, therefore, discuss these two periods separately.

His activity in the enslavement and expulsion of the
civilian population and in persecution on racial and
political grounds in the first period, constituted crimes
against humanity, as defined in Section 1 of the Nazis and
Nazi Collaborators (Punishment) Law 5710-1950, which on this
issue closely resembles the definition of that crime in the
charter of the International Court which is annexed to the
London Charter of 1945, and also in Control Council Law No.

My contention is that, already at that time, the Accused
acted with the further intention to harm the Jewish People
and destroy it, at least partially, and that this is the
meaning in this connection of the arrests in Dachau and
Buchenwald and preventing the release of detainees from
these camps, and making such release conditional upon
departure and emigration and the surrender of their

The Accused maintains that at the time when the plotting
authorities began using other methods, his heart was not in
it, and from that time onwards he performed his duties under
duress under the orders he received, and being forced to do
so because of his oath to his Leader and to the flag.

Clearly, if he remained a partner of his own volition in the
extermination operation, he is thus responsible for the evil
deeds of his accomplices everywhere, by virtue of the laws
of conspiracy. This is similar to a man who joins a band of
thieves whose purpose is to carry out ordinary thefts. One
day, the head of the gang decides that, from now on, they
will use arms for perpetrating their crimes, and in the
course of one of the burglaries a guard is murdered at a
place which some members of the gang have broken into.
Nobody will contest the point that all the members of the
gang who remained with it after the decision to use arms,
and even those who were performing auxiliary functions, such
as storemen, drivers or those drawing up time-tables for
transportation - will be punishable as accomplices to the

I am well aware, Your Honours, that all the examples I might
give, and all the references I might cite, will sound
strange. For what example, what reference, what precedent
can there be in respect of what we have heard here? But in
this legal argument, before a Court consisting of human
beings, I am not able to present my case by relying on
precedents which, with all their horror in a normal criminal
case, are of almost no significance whatsoever, compared
with what has been brought to light here.

And what is the position of a man who joined a criminal gang
and continued to be a member under coercion? A decisive
reply on this issue is contained in the judgment of the
International Military Tribunal at Nuremberg when it dealt
with the subject of declaring aggressive war (Blue Series,
Vol. 1, p. 226):

     "The argument that such joint planning does not prevail
     in circumstances where there is a total dictatorship,
     is without foundation. A plan, in executing which a
     number of people take part, is still of the nature of a
     plan, although it has been conceived by one of them;
     and those putting the plan into effect do not exonerate
     themselves by showing that they acted in accordance
     with the orders of the man who conceived it. Hitler
     could not have conducted an aggressive war on his own.
     He had to depend upon the collaboration of politicians,
     army generals, diplomats and businessmen. When they
     extended their co-operation to him, being aware of his
     objectives, they turned themselves into partners in the
     plan which he had initiated. They are not to be
     regarded as innocent of the crime because of the fact
     that Hitler used them, as long as they were conscious
     of what they were doing. The fact that they were
     assigned to their missions by a dictator does not
     absolve them of responsibility for their deeds. The
     relationship between a leader and a follower does not
     negate liability here, just as it does not do so in the
     framework of the despotic rule of organized crime on a
     local scale."
The case of a despotic organization, which does not have
international ramifications, but operates on a local scale,
as the Nuremberg judgment says, was dealt with by the
President of the Supreme Court in his judgment in Criminal
Appeals 11/58 in the matter of Menkes versus the Attorney
General: (page 8 of the booklet).

Before passing on to my next argument, I shall reply to a
possible contention of the Defence. The Defence might claim
that at Nuremberg the argument regarding conspiracy to
commit a crime against humanity was not accepted. This is
true. The reason is that the Charter of the International
Military Tribunal and the Control Council Law No. 10 which
provided the legal basis for the establishment of the
Military Tribunals, defined specific crimes, legally
formalized upon the principles of International Law which
had always been in existence, but which were then formulated
for the first time. They defined conspiracy to declare war
as a specific crime, whereas they did not define conspiracy
to perpetrate crimes against humanity as such. Hence, these
judgments were given at Nuremberg, but such is not the
situation in regard to the Nazis and Nazi Collaborators
(Punishment) Law 5710-1950, where we view it as part of the
law of this country, in which the principle of criminal
conspiracy applies as part of our substantive law and, when
taken in conjunction with Section 1, it is clear that anyone
forming a conspiracy to commit crimes against the Jewish
People or against humanity, or to commit war crimes will be
guilty under the general principles. In other words: The
London Charter delineated the legal scope of the definition
of the crimes, and the International Military Tribunal could
not go beyond this scope, in the same way as other military
courts were subsequently unable to depart from the
limitations of the Control Council Law No. 10, where there
was no such definition. As distinct from this, in our law,
the Nazis and Nazi Collaborators (Punishment) Law 5710-1950,
the crime and the totality of its circumstances must be
interpreted according to the other general principles of our
law, according to the whole range of our rules of evidence
and the entire substantive ramifications.

As the Court will note on page 5 of the booklet, at the end
of the judgment in the Kaiser case, Justice Goitein said:

     "One last observation on this question: as a matter of
     fact the aforesaid substantive principle does not
     contain any revolutionary innovation as regards the
     probative principle which provides that evidence
     against one of the conspirators shall serve as evidence
     against the other conspirators, since the second
     conspirator will be convicted on the basis of this
     evidence of the crime of conspiracy, and the practical
     outcome is substantive liability."

     "Hence the learned judge in the lower court correctly
     convicted each one of the appellants on the counts of
     the indictment, even if the active participation of
     each one of them in a specific criminal act was not
     proven in every instance."

Presiding Judge: What is this Wright collection that is
mentioned here in the booklet?

Attorney General: That is the compilation of the United
Nations War Crimes Commission, which actually consists of
fifteen volumes, but all of them have been bound together
into five volumes, and they are available in the Court

Presiding Judge: Have we received them?

Attorney General: I believe so. We have them here and are
prepared to make our collection available to the Court. At
any rate the compilation is to be found in the Supreme Court
library - that I know. This is the official edition of the
United Nations Commission for the Investigation of War

About the oath which required unswerving loyalty to Adolf
Hitler, Justice Musmanno says in his judgment in the
Concentration Camps case (Green Series, Vol. 5 at p. 1161):

     "Each and every person who took this oath surrendered
     his personality, gave up the right to individual
     judgment and self-criticism, threw his understanding to
     the winds and exposed himself to the winds of moral
     irresponsibility. This was the poisonous root which
     brought forth the tree, under whose branches the
     horrible crimes were perpetrated."

The judgment goes on to say that such an oath, in itself, is
an act of sacrilege and a foul crime, and cannot serve as a
justification or an explanation for the crimes that were
committed by virtue of this alleged loyalty.

To sum up, in order to remove all doubts, I have to say, at
this stage, that the judgment of the Military Court of
Appeals in the Kafr Kassem case A/279/58 - Ofer versus Chief
Military Prosecutor - Criminal Appeals p. 362ff., and paras.
11 and 12 on pp. 377-378, did not change this doctrine. In
the above-mentioned paragraphs, there is a discussion of the
criminal liability of two soldiers who were present at the
place where the offence was committed by other soldiers. The
Military Appeals Court acquitted them of an offence arising
out of this presence, since it held that their presence at
the place was "in conformity with a legal order," and it was
not proved that they had been involved in any way in the
commission of the crime. Under such circumstances, mere
presence at a place where a crime is perpetrated by others
does not in itself amount to a criminal conspiracy, or to
abetting a criminal act. In other words, as long as the
soldiers acted under a legal order, it cannot be said that
they had joined a criminal conspiracy. But from the
substance of the judgment it is clear that if those soldiers
had been present on the spot under an order which was
patently illegal, then they, too, would have been
participants in the criminal act. Hence, not only does the
Kafr Kassem judgment not help the Accused, but its
conclusions support the general principles I have quoted.


Presiding Judge: Mr. Hausner, please proceed.

Attorney General: In my previous remarks I assumed that the
Accused had not been free to leave his post in the
administration of the Section for Jewish Affairs in the
Gestapo. But, in fact, there is no basis for this
assumption. In practice such a possibility existed, had he
so requested. Himmler himself, when addressing a conference
of senior officers in Posen, hinted that, in these
operations, if any officer wanted to be released, it would
be best to pension him off, since he had proved in this way
that his nerves had been weakened. But we also have actual
proofs. In the Nuremberg judgment in Case No. 9 (page 40 in
the booklet) which is an exhibit in his trial by consent of
the parties, there is reference to the case of Noske whose
rank was equal to that of the Accused; he refused
categorically to carry out murderous instructions against
the Jews. He did so openly; he was not shot, nor was he
reduced in rank, nor was he even placed on trial. A certain
amount of inconvenience was caused to him and nothing more.

Best, because of whom the anti-Jewish campaign in Denmark
failed, did not suffer in consequence. Eichmann bears a
grudge against him to this day for this failure, as is shown
by his remarks in the police interrogation.

As for the Defence witness Six, what does he say? I quote:

     "It was possible to be relieved of my command post in
     the Einsatzgruppen without the matter bringing in its
     train a court-martial, or a loss of rank, even though
     it was regarded as cowardly. There always existed the
     possibility of being released from the RSHA and asking
     for a transfer to the front, or to be freed in order to
     volunteer for some other job."

Eichmann admits that he never submitted a written request
for a transfer, that no such request had ever been made to
his commanding officer. He alleges that he had requested
this of Mueller who was his immediate superior, and when
Mueller turned it down, he did not appeal against his

His long-standing friendship with Kaltenbrunner who brought
him into the Party and the SS already before the Nazis
acceded to power, enabled him to make a personal
recommendation, outside the normal service channels, for the
promotion in rank of Eichmann's colleague, Kraus (T/1431).
Does it stand to reason that, if he had been loath to
continue his murderous activity, he would have been able to
ask his old friend for the favour of a transfer?

Hence, in point of fact, Eichmann's argument is based  upon
a falsehood. If his superiors had known that he wanted to go
to the front, they would have been bound, according to Six,
to let him go. That is what his witness testifies. I go
further: If it had been felt that his heart was not in this
tremendous undertaking, they themselves would have
transferred him to another job. But he did not want that,
and here is his statement to Sassen:

     "I never requested a transfer to another post."
     Naturally, when I showed him the copy in Court, in
     Session 95, he denied having said such a thing.

According to his bosom friend, Hoess, he was obsessed with
exterminating Jews. I shall discuss this mental attitude to
the fulfilment of his task in the next section.

From the legal point of view this makes no difference either
way, for the law is that no coercion or duress can exonerate
a person from a charge of murder. You must not kill even
when your own life is endangered - this is the principle
according to Jewish tradition - for in case of bloodshed
duress is no defence, as this is also the position according
to our regular Criminal Law (Section 17 of the Criminal Code
Ordinance, 1936), and this also applied in the trials of the
war criminals. The courts in Germany itself no longer
recognize duress as a legal defence.

On page 38 of our booklet the Court will find the following
statement quoted from the judgment of the trials of the war

     "Duress can seldom provide a defence, it will never do
     so unless the threat which is offered as a result of
     which the unlawful act is perpetrated is a threat of
     immediate harm of a degree far, far greater than that
     which would be created if the order were obeyed."

And, further on:

     "There is, further, a defence which to some extent is
     akin to that of superior orders, and that is the
     defence which I may describe as the defence of `duress
     and coercion.' It has been said here that once the
     order for the execution of these soldiers had been
     given, it was impossible for any one of the accused to
     ignore it, and that the only way in which they could
     act was the way in which, in fact, they did act. Now
     that defence of `duress and coercion' is not a defence
     in law. You are not entitled, even if you wished to
     save your own life, to take the life of another."

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