The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 1999/05/28

The Law of Nations does not recognize the exercise of
political sovereignty by the dispensing of justice in the
present case. The dispensing of justice to a foreign
subject, as is being claimed here, would not be recognized
by the territorial principle, nor the protective principle
or the personal principle, nor the principle of
international justice. These basic principles of the Law of
Nations constitute the very essence of our experience. These
principles constitute a guarantee for international living
as a community and they must be protected. In these general
principles one does not have to enter into argumentation
about legal niceties, as the case before us will show. In
practice you are restricting the Accused's defence. It is
not economically possible for him to produce witnesses
before the court. He cannot compel them to appear, and the
witnesses, who themselves were officers of the SS, are also
obviously afraid for their liberty. They are obviously
concerned for their safety, should they appear in Israel
before this Court.
Undoubtedly the State of Israel recognizes the principles of
these basic rules of the Law of Nations. But evidently it is
presumed that special circumstances create the right to
deviating legislation, constituting an exception to the
rule. The Law for punishing Nazis and their collaborators
is, indeed, an exception, like the London Agreement which
constitutes the basis of judical authority for the
International Military Tribunal in Nuremberg.

There is room for an exceptional law under special emergency
conditions. An exceptional law can also be a just law if it
has a just purpose. The purpose of the exceptional law,
which is before us, is punishment; its punitive purpose is
the defence of the State itself and of the citizens of the
punishing State themselves. This defence is attained by
deterring the perpetrator and by the deterrence of other
potential perpetrators. The punishment which may be expected
here according to the law cannot serve any of the
aforementioned objects.

There looms before us the question of retribution. The State
of Israel itself has understandably rejected the idea of
retribution. The Minister for Foreign Affairs, Mrs. Golda
Meir, did so at a session of the Security Council of the
United Nations Organization on 22 June 1960. This is what
she said of the Eichmann Affair. I quote her words: "This is
not a matter of revenge. The Hebrew poet Bialik says:
Revenge for a small child - the devil has not yet devised."

But as against this there stands the principle of atonement,
and this has justification, but for such a purpose an
exceptional law is not required since for the idea of
atonement there exists the dispensation of justice before a
competent judge. A legal process is ensured in Germany, and
on the basis of the London Agreement, a legal process is
also ensured at each and every place where the crimes were
committed. Although the Government of the Federal Republic
of Germany has not yet, in fact, submitted any application
for extradition, nevertheless Attorney General: Bauer of the
State of Hessen and the Defence have already suggested this
to the Federal Government.

If there is a demand here for retribution, how will there be
retribution? The Accused: cannot make atonement for the
death of a large portion of a people. Nor can atonement be
imposed on the Accused: for the acts of his State. If there
is room here for moral expiation, let the State which acted
through the Accused: make atonement. The State was involved
in what was done, and it has to bear the responsibility for
the consequences from the moral point of view.

There is here the imposition of culpability without
wrongdoing, since the Accused: here, in fact, has to pay the
penalty without culpability for processes into which he was
drawn by the State.
The Federal Republic of Germany has taken upon itself this
moral responsibility. Reparations are being made for the
measures which were taken by the former institutions of the
State and burdens have been assumed for assistance to the
State of Israel which is a development consequent upon the
processes of persecution. Different from this was the
Judgment of the International Tribunal at Nuremberg. It
dealt only with the leading personalities. The decision was
taken close to the end of the War. The leading personalities
made retribution for their administration and its deeds.

The Accused: here does not belong to the group of leading
personalities and it is impossible to measure him by the
same yardstick. World public opinion judges blindly and much
too hastily, but the writers who are responsible for that do
not constitute a Court.

My objection, therefore, rests on the fact that it is
possible to take exception to the Nazis and Nazi
Collaborators (Punishment) Law. This law is one which was
enacted ex post facto and hence does not have legal effect.
I do not want to take a detailed stand on this matter which
has already been dealt with more than sufficiently. I ask
the Court to admit this summary of the legal arguments. I
have already handed a copy of my remarks to my colleague,
the Attorney General.

Presiding Judge:  Do you wish to submit this now?

Dr. Servatius:  Yes
Presiding Judge:  Mr. Hausner, you have no objection to

Attorney General:  No, I have just now received a copy -
during this morning's session.

Presiding Judge:  Do you perhaps have two more copies for
the other judges?

Dr. Servatius:  I only had a few copies. I shall prepare
some more.

Presiding Judge:  I would ask you to submit this as soon as

Dr. Servatius  We shall do this immediately.{The written
submissions of the defence appear at the end of Session 1.}
The summaries contain particulars of two points: the right
of jurisdiction which the State maintains - that is one
point, and the question of retroactive legislation - that is
the second point.

Presiding Judge:   You are now raising a new point.

Dr. Servatius:   Yes.

Presiding Judge:   At this time we shall have an interval
for about a quarter of an hour.

Dr. Servatius:  As I have said, the absence of competence
for this Court also arises for reasons of procedure. The
kidnapping of the Accused: and his arraignment before this
Court cannot serve as the basis of the Court's competence.
The Accused, after being kidnapped, signed a statement in
terms of which he accepted for himself, of his own good
will, the competence of the Israel Court, and this is the
text of the statement:

     "I, the undersigned, Adolf Eichmann, hereby declare, of
     my own free will: In view of the fact that my true
     identity is now known, it is clear to me that there is
     no purpose in my attempting to continue escaping
     justice. I hereby declare my readiness to travel to
     Israel in order to stand trial there before a competent
     court. It is obviously clear that I shall obtain legal
     aid, and that I shall try to put down in writing the
     facts of the last years of my activity, my public
     activity in Germany, without colouring or glossing
     over, in order that coming generations may receive a
     true picture. I made this declaration of my own free
     will. I have not been promised anything, nor have I
     been threatened. My aim is ultimately to achieve inner
     tranquillity. Seeing that I can no longer remember
     every one of the details and I may be exchanging one
     thing for another and confusing matters - I therefore
     request that I should be assisted by placing at my
     disposal references and statements to help me in my
     attempts and my efforts to arrive at the truth.
     (Signed) Adolf Eichmann, Buenos Aires, May 1960."

There is no need to speak at length and to say that this
declaration to appear willingly before a Court in Israel was
given under pressure. I request for myself the right to
produce proof, when it should be necessary, the object of
which would be to establish that this declaration and this
letter were signed under pressure and threats. If so, this
declaration would be null and void and the Court would not
be able to base its competence thereon. A man who hid
himself for fifteen years, in order that he should not
appear before a Court, does not suddenly ask nor is he
willing to appear before a Court; and he will certainly not
wish to appear before a Court and be judged by it, in that
country in which are to be found the people who suffered
from him more than others, and of whom he would be
exceedingly afraid.

There are of course, precedents in the records of courts of
law, judgments pronounced throughout the world, in one
country or another, during the last 150 years. From these
precedents the impression could have supposedly arisen of
the possibility of legal proceedings despite the kidnapping
of the Accused. But the most meticulous examination would
prove that such precedents are not to be relied on. And here
I shall not go into detail now. I merely wish to point out
the following: In these cases the judges used to close their
eyes and disregard the actual kidnapping of the Accused: and
pronounced that they were concerned solely with the legal
proceeding begun before them and these proceedings would be
according to their usage and procedure. Such courts refuse
to express an opinion on the act of violence preceding the
case. On the actions of such judges Heinrich Heine observes
in his English Fragments:

     "Let the jurists turn the meat for roasting this way
     and that until it will appear to them to be properly

These precedents should no be brought up here and they do
not apply to this case; for the kidnapping process here was
absolutely different.

It appears from political literature on the Eichmann episode
and arising therefrom that the Accused: was kidnapped on the
orders of the Israel Government itself, and on its orders he
was brought to Israel for trial. If this is the case, then
the Government acted against the law of Nations and this
Court cannot approve this and give validity to this action.
To verify the fact that the kidnapping of the Accused: from
Argentina was ordered by the State authority, I begin with
the submission of evidence, and I repeat my suggestion which
I have already proposed in writing. I wish to hear the
witnesses: Firstly Mr. Zvi Tohar, of 3 Yiftah St., Ramat
Gan; secondly Mr. Jack Shimoni, of Ramat Gan, who is
employed by the El-Al company. The previous name of the
witness was Jack van Koperdan. Witness No.1, together with
others, kidnapped the Accused: on 22 May 1960 in Buenos
Aires. He deprived him of his freedom and brought him to the
State of Israel. I amend that: the kidnapping was on the
11th May. Witness No. 2 was the pilot or the captain of the
aircraft of the El-Al company in which the Accused: was
transferred from Buenos Aires to the State of Israel. The
witness will be able to prove that the kidnapping of the
Accused: Adolf Eichmann from Argentina was carried out by
the official order of the Government of the State of Israel.
These testimonies are important in view of the argument
against the Court's competence which I submit as Defence
Counsel. This concludes my remarks.

Presiding Judge:  Please, Mr. Hausner.

Attorney General:  With the Court's permission, the question
of the arrest of Adolf Eichmann and his transfer to Israel
came up for consideration before the highest executive body
of organized mankind, the Security Council of the United
Nations, and in its Resolution of 23 June 1960, the Security
Council determined inter alia, saying...

Presiding Judge:  Will you please give us the text?

Attorney General:  Yes.

     "Mindful of the universal condemnation of the
     persecution of the Jews under the Nazis and of the
     concern of people in all countries that Eichmann should
     be brought to appropriate justice for the crimes of
     which he is accused, noting at the same time that this
     resolution should in no way be interpreted as condoning
     the odious crimes of which Eichmann is accused..."

I submit here a certificate of a public official containing
the text of the resolution of the Security Council.
Presiding Judge:  I mark this T/1.

Attorney General:  The Security Council did not thereby
determine that Eichmann was guilty. The proof of his guilt
for the "odious crimes" falls upon me and my colleagues, and
I take this burden upon myself. But the Security Council
decided that Eichmann should stand trial. For a long time it
has been laid down, Your Honours, as far back as in the
judgment of the International Military Tribunal at
Nuremberg, where Eichmann was not accused, and where
accordingly the findings in the matter must not be regarded
as a decision affecting him, his name was twice connected
with the persecution of the Jews and their extermination.
And I do not quote this so that the matter can serve as
evidence before you. I have already taken upon myself the
burden of proof. But I quote this in justification for the
fact that the conscience of the world has been demanding for
fifteen years now that this man be brought to trial. The
International Military Tribunal determined (I read from the
official Judgment - International Military Tribunal, in the
first       Volume, at the foot of page 252).

     "Adolf Eichmann, who had been put in charge of this
     program by Hitler, has estimated that the policy
     pursued resulted in the killing of six million Jews, of
     which four million were killed in the extermination

And on page 250 (at the top) it says:

     "This 'final solution' meant the extermination of the
     Jews, which early in 1939 Hitler had threatened would
     be one of the consequences of an outbreak of war, and a
     special section in the Gestapo under Adolf Eichmann, as
     head of Section B 4 of the Gestapo, was formed to carry
     out the policy."

The Nuremberg Trial determined the indictment, Your Honours.
The Security Council repeated it. The Family of Nations
decided that Adolf Eichmann must bear the responsibility for
his crimes, and he stands trial before you today. There is
not one country which has declared that it desires, or is
ready, to judge him, and there is no conflict of competence
at all between the State of Israel and any other State in
regard to trying Adolf Eichmann. Defence Council has
mentioned here that he has submitted an application to the
Government of the Federal Republic of Germany.

Presiding Judge:  I think the interpreters require that from
time to time you should pause after a few sentences.

Attorney General:  Certainly. Defence Counsel declared here
that he had approached his Government in order that it
should request the extradiction of Adolf Eichmann, so as to
bring him to trial in Germany. I state on behalf of the
Government that no such request has reached the Government
of Israel, and that at the present time when the Accused:
stands trial before you, there is no one demanding to try
him apart from the State of Israel.

Before I deal seriatim with the arguments of Defence
Counsel, I wish to reply shortly to his first contention,
which is in fact a general disqualification of any Jewish
Judge, not only Israeli, to judge the man who is Accused: of
the attempt to destroy his people. The argument is as
follows: Since you have been the victims, since you have
been afflicted, possibly members of your families were
harmed - for this reason you Jews must not judge Adolf
Eichmann; let others who were not affected judge him, let
neutral persons judge him. Perhaps, instead of replying to
this argument in my words, it may suffice to quote a well-
known authority, in an article by Professor Goodheart, a
Professor at Oxford University, in the April 1946 issue of
the Juridical Review entitled "The Legality of the Nuremberg
Trials (by A.L. Goodheart):

     "It has been argued that the Tribunal cannot be
     regarded as a court in the true sense" -(The reference
     is to that tribunal of the four occupying Powers which
     tried the major war criminals at Nuremberg)-  "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
     Writ 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

     "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 be given the rank of Major General for
     the purpose of the trial, but it was decided that it
     was not desirable to disguise their essential 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 the
     innocence of any Defendant shall give the reasons on
     which it is based.' This provision, which is far
     stricter than the practice followed in the ordinary
     national courts where a simple verdict of guilty is
     sufficient, is the strongest guarantee of fairness,
     because the judges in such        circumstances must
     realize that their judgments will be subject to public
     scrutiny both now and in the future. The first
     essential of a large trial is therefore satisfied by
     the character of the Nuremberg judges and by the
     conditions under which they function."

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