Archive/File: people/e/eichmann.adolf/transcripts/Appeal/Appeal-Pleading-01-01 Last-Modified: 1999/06/15 WRITTEN PLEADINGS SUBMITTED BY COUNSEL FOR THE APPELLANT ADOLF EICHMANN 31 January 1962 re: Criminal Appeal 336/61 Adolf Eichmann versus The Attorney General I make the following statement, in my capacity as Counsel for the Defence of the Accused, in respect of the appeal submitted with the pleadings on 15 December 1961: Judgment and sentence are impugned to the full extent for reasons which have to be considered ex officio, arising from Art. 65 TUIO. The following are submitted as reasons to be considered ex officio: I. The participation in the decision by Judges who were disqualified from executing their office, as well as II. the lack of competence of the court. I. Disqualification and prejudice of the Judges Following Decision No. 3, dated 17 April 1961 (Session No. 6, Vol. I, p.60), the Judges in the first instance have, despite the objection raised by the Defence, unjustly considered themselves as not being disqualified from executing their office as judges, nor have they declared themselves as being prejudiced. It is not disputed that the Judges have made efforts to elevate themselves above any sentiment which would preclude an unbiased judgment of the facts of the case. However, there are psychological limits to such sincere efforts, which a judge aiming at objectivity cannot rise above. The Law of Nations, therefore, prohibits a professional judge from trying a case, whenever he is immediately affected by the act and its consequences. Such is the case here, as the acts that the Accused is charged with have influence on the Judges to a large extent, too. It is a question of political events, in which the Accused was involved in his capacity as representative of another state, by means of measures taken against the Jewish People, to which the Judges belong. Hence, there is here an insurmountable prejudice, by virtue of the psychological compulsion from which no judge can free himself, no matter how good his intentions are in handling the case. It is, therefore, feared that the District Court, in judging the acts and the personality of the Accused, was not in a position to do justice under the circumstances. This apprehension is so obvious and so serious that it was voiced by renowned lawyers throughout the world, even before the proceedings commenced. The same question will also have to be investigated with regard to the execution of the Judges' function in the Appeal to the Supreme Court. II. Incompetence of the Court The District Court rejected the objection made by the Defence on the incompetence of the court. This objection was based: (1) on general reasons relating to international and constitutional law, as well as (2) on the abduction of the Accused from Argentina and his removal to Israel. I. General International and Constitutional Reasons (point 4 etc. of the Decision as stated in the Judgment, Vol. V) (a) Ex post facto law (point 7) It is not disputed by the Defence that a state can pass ex post facto laws according to its requirement for its territory and for its citizens, for such acts which, at the time they were committed would be regarded by the state as punishable. The District Court Decision, however, misjudges the situation, by not considering that this criminal procedure involves an act committed in another country, an act committed by another state, in which the Accused had become active as a subordinate agent. (b) The law conflicts with the principles of international law (point 10 etc.) (1) National Law The opinion held by the District Court, i.e., that the national law in the present case supersedes international law, is at odds with the development of international law. The state is bound by international law, provided it does not cause a conflict of laws. Such a conflict does not exist in this case. The Nazis and Nazi Collaborators (Punishment) Law of 1950 infringes international law in its effect on aliens and other states. (2) International Law (point 11 etc.) (a) The universal character of the charges made against the Accused (point 12) can, in accordance with the contents of the Decision, only establish competence where an international tribunal does not exist. The District Court in this case does not realize that an international tribunal is unnecessary, since there is a competent German court which can try the Accused. (b) In accordance with the Decision, the universality of the right to punish (point 14) refers to criminal acts which cannot be dealt with due to the absence or non-availability of a competent court. The opinion held by Hugo Grotius, however, to which the Decision refers under point 14, shows that universality can only be applied as an alternative. The principle is: aut dedere aut punire. (c) The District Court disregards the fact that all criminal acts of universal nature are always acts againt the laws and against the will of the state (point 15). In the present case, however, they are acts committed with the state's consent, and by the state. (d) The crime of genocide, which was referred to by the District Court for the purpose of comparison (point 17) has not been subjected, specifically, to the principle of universality. The Genocide Convention contains merely a suggestion for the future. This suggestion is for the punishment of the perpetrators by the competent court of their own nation, if they are in the captivity of the injured state. (e) Act of State (point 28 etc.) The assumption of the District Court, according to which the acts committed by the Accused can be tried by it, even if they were an act of state, requires investigation. It is untenable to deny the presence of an act of state, by establishing that these acts of state themselves represent outrageous cruelties. Such outrageous measures in particular, can only be possible by means of an act of state; an individual is not capable of committing them. An act of state can also not be denied by characterizing the state as a "criminal gang." (f) Fundamentally, it is pointed out that the circumstances according to which an act is deemed to be punishable by virtue of natural law or general legal conviction, cannot be compared with the material liability for punishment, for as long as punishment cannot be accomplished - and generally is not accomplished - by virtue of existing jurisdiction. The law presupposes a general liability and a generally applied standard. Lacking this, prosecution is an exception and an arbitrary action. It is particularly in the field of political acts ordered by states in connection with war events, that punishment has not generally been applied. Furthermore there is no desirable prospect of such acts being generally pursued and punished in the future. This has been proved by political events, and the lack of enforcement of the Genocide Convention confirms this in particular. Abduction of the Accused (point 40 etc.) The District Court has unjustly declared the abduction irrelevant, with regard to the competence of the Court. (a) The reference made by the District Court to the decisions by English and American courts cannot support the assumed competence of the court. Contrary to the rulings quoted in the Decision, this is not a case where a fugitive perpetrator is unlawfully being brought before a court, which itself is competent to try him. On the contrary, it is a case of an Accused who is being deprived of a judge competent to try him, and who was brought before an incompetent court. Competence cannot be established by the forced abduction and forced stay of the Accused in the State of Israel. It was particularly this circumstance on which the United Nations Security Council passed a resolution, demanding that the Accused be brought before an appropriate court. This, in actual fact, does not mean before a court of the State of Israel, to which the Accused had been abducted for the purpose of outting him on trial. (b) When investigating its competence, the District Court did not, duly consider the objection raised by the Defence, which was that the Accused had been abducted by an act of state effected by the State of Israel, i.e. by the highest state authorities. This ex officio abduction can be proved by the fact that the abductors were not prosecuted in Israel for their criminal act. It can also not be considered correct if, in a state with separated powers, a breach of law is committed by the government, and that the court states to the international community that this act cannot be proved, and when the evidence introduced contradicts the indictment. (c) Joint declaration by the States of Argentina and Israel. Contrary to the assumption of the District Court, the conflict caused by the abduction - which violated international law - and by the infraction against the fundamental rights of the Republic of Argentina, is not set aside. The joint declaration made by these states means no more than that the conflict is considered to be settled. Renunciation has not resulted from this, and the breach of law has not been healed. Hence it follows that the Republic of Argentina continues to pursue the infringement of the law, and according to press reports Argentina has approached the Government of Israel with a view to finding the perpetrators. Evidence: Information by the Israel Minister of Justice; Information by the Argentinian Minister of Justice. It is assumed that the Republic of Argentina will emphasize its demand for reparation by asking for repatriation of the Accused. This depends on the outcome of the investigations. (d) Subjective rights of the Accused by virtue of international law. The District Court is wrong to assume that only the states concerned can derive rights resulting from violation of international law. This conception must be considered obsolete on account of the development of international law. The individual, having duties imposed on him deriving from international law, must also be granted rights to the same extent in the case of infringements committed. It cannot be accepted that an individual becomes a toy of states who, for the sake of national interests, disregard the interests of the individual. e) Acts in foreign countries, inflicted upon aliens. The District Court is wrong to assume competence for trying acts inflicted upon aliens in foreign countries, which [competence] has been contested by the Defence. Precise reasons were not stated in the Judgment. The competence of the Court for trying acts inflicted upon Poles, Czechs and Gypsies is not warranted under any point of view. A case of administration of criminal justice in lieu of is non-existing. Reasons for Appeal in Accordance with Trial Upon Information Act. 1. General: a) When establishing the facts of the case, the District Court presented the events, which form the subject of the proceedings, in an abridged and simplified form. In the case of this juristic summary essential data for establishing the facts of the case remained unconsidered. bFrom the documents which were made the subject of the proceedings, those forwarded by the Defence (N-documents), as well as statements made by witnesses for the Defence, were not sufficiently evaluated by the Court. A summary of exonerating factors is being submitted against the summary of incriminatory viewpoints. The exonerating factors may give grounds for an investigation of the incriminatory statement contained in the Judgment. Example: The Accused is considered to be a chief issuer of orders, whereas he actually was only the transmitting agent carrying out orders issued by higher authorities, which otherwise would have been quite unnecessary.
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