Archive/File: people/e/eichmann.adolf/transcripts/Appeal/Appeal-Session-02-05 Last-Modified: 1999/06/15 In an article by R.R. Baxter, published in The British Yearbook of International Law 1951, entitled "The Municipal and International Law Basis of Jurisdiction over War Crimes," on pages 390, 391 and 392, it says: "International law also surmounts the jurisdictional barrier, as municipal law cannot, by recognizing the universality of jurisdiction enjoyed by war crimes tribunals. Recent prosecutions of conventional war crimes and crimes against humanity have afforded many significant instances in which the victims of crimes have included few or no nationals of the prosecuting state." "Consequently, not only did the locus of the particular offence become immaterial, but the United States also prosecuted persons who had been responsible for war crimes before the country had become involved in war." In other words, crimes committed when America was not even belligerent. And here they say: You did not even exist at the time. And on page 392 it says: "If a neutral state should, by reason of the availability of the accused, witnesses, and evidence be the most convenient locus in which to try a war crime, there is no reason why that state should not perform that function." Justice Silberg: Are you arguing, Mr. Attorney General, that the proliferation of these laws created international law? Attorney General: No. I am saying that international law never prohibited this. I want to show that we were not the only ones to use the permission of international law, that we are in good company. Both of the international camps the East as well as the West - did the same. In Law Reports of Trials of War Criminals, the series to which I have already referred, Volume 1, page 106, the Court will find a reference to the trial of the Japanese sergeant Tomono Shimiyo, who was tried before a British military court in Singapore by British judges for the unlawful killing of American prisoners of war in Saigon, i.e. on the territory of what was then French Indochina. He was sentenced to death. In other words, a court entirely composed of individuals who had no connection with the place where the offence was committed, i.e. British people in Singapore who had no national tie with the victims of the crime, were competent to try a foreign subject who had fallen into their hands, merely because the crimes were committed against the judges' allies, i.e. against American soldiers. On page 43 of the same volume 15... President: Mr. Attorney General, you referred before to the first volume. The case of the Japanese soldier is referred to in the first volume. Attorney General: I am going back to Volume 15. On page 43 it says: "There have been numerous reports in this series of trials by the Courts of one ally of offences committed against the nationals of another ally or of persons treated as Allied nationals, and in many trials no victims were involved of the nationality of the State conducting the trial." A fortiori, it is beyond dispute that an Israeli court has jurisdiction to try an individual accused of wiping out one third of the Jewish People. For us the Jewish People is not simply an ally: It is bone of our bone, and flesh of our flesh. Alliances are made to change, yesterday's friends are likely to become tomorrow's enemies. But the national identification of the overwhelming majority of the inhabitants of this State with the victims of the Holocaust cannot be challenged or changed. The State of Israel is the State of the Jews, as it declared when it was established and when it was recognized by the entire world. And if other courts saw themselves as competent to try war crimes because the victims of those crimes were their allies in the common struggle against a common foe, we were no less Allies in the war against Hitler; rather, we were his prime enemy. Our competence to try those who carried out his murderous work in respect of millions of our fellow Jews accrues to us on the basis of law and of justice. The Appellant's argument that Eichmann's crime should not be viewed as universal, because he was acting in accordance with the laws of his state and following the orders of his leaders, is unfounded. It runs utterly counter to the principles laid down in the judgment of the Nuremberg International Military Tribunal which has been accepted by civilized countries and thus by the entire world. If we examine the argument in some depth, we find the outmoded conceptions of an omnipotent territorial sovereignty. Its thinking is that, if pirates seize power in a particular state, do away with all the laws, disavow all moral principles, engage in murder, robbery and plunder - it will be impossible for them to be judged, because they were sovereign in their territory. The days have passed when international law would throw up its hands and stand by helplessly while politics had their way. Today, according to international law, the emissaries of a criminal state can expect not only sanctions and a peace treaty, but also to be put on trial, with the responsibility for criminal acts being personal and placed squarely on the shoulders of every single one of those who served the wicked state. I do not accept the version according to which Eichmann was allowed to do what he did because that is what Germany wanted at the time. In this argument we today hear an echo of the well-known Nazi slogan: "What is legal and right is what helps the German people; what is illegal is what harms it," so that Germany's laws and will are to be preferred to any moral or legal principle. The Judgment of the Court of the First Instance has already cited the main references from the literature and the British and American case law which utterly reject this viewpoint. For the sake of completeness, I shall refer here to this principle as presented in the views of the Soviet Union's school of law on international law. In International Law, a book published by the Soviet Union's Institute of Law, on pages 451-452, in the chapter on war crimes, it says: "Present-day International Law lays down that persons who commit crimes against peace, against the laws and customs of war and against humanity, are individually liable and subject to criminal punishment. These generally recognized principles of International Law were set down in a number of international agreements and also in the Charters of the Nuremberg and Tokyo International Military Tribunals which punished the major Axis war criminals. These Charters contain exact definitions of the concepts of crimes against peace, war crimes and crimes against humanity." Justice Silberg: That means that the London Charter created international law. Attorney General: It provided it with a formulation. In a well-known paragraph, the judgment says: This is not a new arbitrary determination which we are making now, we are today simply putting down in the form of paragraphs matters which have since time immemorial been forbidden in the eyes of all civilized nations. Justice Silberg: That is the opinion of the Russian author. He says "recent international"... Attorney General: "Present-day international law." He sees this as a modern development. We are told that the Appellant is simply a victim of wicked laws. I can only repeat what was already said in the Judgment of the Court of the First Instance, that evil laws are not laws, just as illegal orders are not orders. President: Which law are you referring to now? I asked Dr. Servatius which law dealt with the extermination of the Jews. He said that he never saw such a law. Attorney General: No, but he says: There was an edict by Hitler, and in Germany there was the principle: "Der Fuehrer befehlt, wir folgen." So this was an order of the leadership. And Eichmann says that he took an oath of loyalty to the flag, and he was obliged to carry out what his Fuehrer demanded of him. For him this was the law. When I asked him: Did you show any interest, did you ever see any legal basis?, his reply was: It was not up to me to investigate; it was up to the top echelons. They commanded me, I acted. Justice Silberg: He also bases himself on the laws about the plunder of property. Attorney General: That is correct. Justice Agranat: And cancellation of citizenship. President: Because if this is given the form of a law in a particular state, then from that state's viewpoint it can be argued: This is a law, a bad law or a good law. But if this is not given the form of a law, but someone in great secrecy tells someone, and that someone tells several other hundred someones, and so on and so forth - then the question of whether this is a law or a conspiracy is very simple, even if this is done by those in the state's high places. Attorney General: In any case, the leading legal figures in Germany do not see this as a law today, and they impose punishment for acts committed on the grounds of obeying such orders. But here we have heard, and I would continue along the lines of this argument: The Fuehrer's will was law. But that will was not expressed even in such forms, as dictatorial German legislation also insisted that it should be put down in writing somewhere and signed... President: On the contrary, the concern was for this to be secret. Attorney General: Precisely, the concern was that this should be concealed, and they deceived the entire world, sometimes even their own ministries which were not directly concerned. But I would like to argue a point in relation to the argument of Defence Counsel, who says: The Appellant saw himself as being ordered by a compulsive force, which he had no choice but to obey, to do the things he did. Of course such an argument - that it is enough for some Fuehrer to come along and give orders that acts be perpetrated in order to compel a person to follow him and carry them out, even if they involve bloodshed - is not an argument which can be presented to the Court. His oath to the flag - on which he insisted and to which he kept returning - can in no way justify him. On the contrary, this very oath, to follow blindly, without any moral consideration, wherever the Fuehrer leads, even to the most heinous sins and crimes, is in itself an immoral act. Justice Silberg: Following on from what the President said, is not the very fact that Morgen wanted to put him on trial proof that it would have been possible to try him? Attorney General: Yes, Your Honour, I know, I shall also get to that when I talk about Eichmann's words. Justice Silberg: No, in this connection the subject is important. Attorney General: Morgen, as an investigating judge of the SS, did not know of any general order under which it was permissible to do to the Jews what they did in Germany. In other words, in factual terms, too, this version is not correct. And let me instead simply refer to something else. In T/1288 the Court will find part of Himmler's speech of encouragement and praise in Poznan to senior SS commanders, in 1943. President: Where he says that the faint-hearted can leave? Attorney General: Yes, that is the passage on which one can base oneself. I shall read out to the Court another two passages. Justice Silberg: This was on 4 October 1943? Attorney General: "We have the moral right, we have a duty towards this people to destroy that people. The property that they had has been taken away from them. I have given strict instructions to transfer every single piece of their property to the Reich." Himmler could not have done this on his own. He could not with his own hands locate, concentrate, collect, imprison in ghettos, attach the mark of disgrace, put on trains, push into the gas chambers all the millions who were exterminated. There were men, live men who acted as his eyes, hands in doing his will; there were people who passed on these orders; there were people who ensured that the orders would be carried out; there were people who day in, day out, hour by hour, performed all of these acts. What could Himmler have done without Eichmann and without Mueller and without the other SS and SD men? Counsel for the Defence tells us once again: "I was not the only one." True. I made that point right at the outset, this was how Adolf Eichmann was charged in the indictment, together with others, he alone could not have done this. There were legions of men who dealt with this, and they are all war criminals, and they are all murderers, even though, regretfully, not all of them have been punished. But because of this we should acquit him after he has been caught, because there were other criminals as well? The Accused had these or similar words by Himmler brought to his attention. I examined him, in Session 95 (Vol. IV, p. 1659). "Question Do you remember Hoess telling you about Himmler's visit to Auschwitz? That the work of extermination was a battle which future generations would not have to endure? And Hoess said that he was encouraged by this remark of Himmler's. "Answer That this remark encouraged Hoess? I do remember...this is a sentence which I never forgot." I now read out what he said in Argentina, in the famous Sassen Document: "But just as Hoess thought, so we also thought. And if Hoess told me of this sentence which the Reichsfuehrer pronounced...it is because this sentence by the Reichsfuehrer gave me just as much on an official level as it probably gave Hoess in his sector, because, after all, we were his followers. Under the Reichsfuehrer we had freely undertaken, by means of an oath of loyalty and an oath of office, to submit to and obey the orders of our superiors." When asked if he had said that, he replied that he could not swear to the actual wording, but, as far as the substance was concerned - yes, he assumed that he had. The interpretation of the substance of what the Reichsfuehrer said fitted as well. And thus, he said, the substance of these statements was true. Anyone who acted in this way and who derived encouragement from this instruction of the Reichsfuehrer should not come and argue today that he is on trial merely because of the wicked leaders and that he is a scapegoat for all the others.
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