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 application. 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 myself...in 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 state. 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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