The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of Adolf Eichmann
Session 1
(Part 4 of 5)

Holocaust, Adolf Eichmann, Eichmann trial, holocaust, Jewish holocaust
Thus far from the remarks of Professor Goodheart. And if the remarks were valid there, they are all the more valid here, Your Honours. A person cannot demand from you that you should be neutral in regard to the crime of genocide. And if Defence Counsel thinks that there is any man in the world who can be neutral in respect to to this crime, such a judge would be the one who is not competent.

But it is possible to be just, even with such a grave crime. It is possible to have a fair trial even when the judges are required to suppress within their hearts their personal or national anguish, and to judge according to the evidence which is before them. And only in this way do I ask you, Your Honours, to judge.

Defence Counsel has mentioned a judgment of our Supreme Court. During the recess I tried to find out to which of the two he was referring. Since the sentence quoted was evidently not in a judgment of the present President of the Supreme Court, but of its previous President. It seems to me, if I am not mistaken, that Defence Counsel is referring to a decision in Various Applications 3/50 which was published in the Judgments of the Supreme Court, Vol. 4, on page 592 where the Accused: sought to disqualify the judge on the ground that on a previous occasion he had not behaved properly in front of the same judge and he was afraid that the judge would be prejudiced against him, the accused.

Presiding Judge: Is that the Weinberg case?

Attorney General: Yes. The second case to which I thought the Defence Counsel might possibly be referring by quoting an extract, is the case of Trilfus vs. the Attorney General, Criminal Appeal 152/51 - Judgments Vol. 6, page 17, in which our Court also laid down the principle that justice must not only be done but must be seen to be done, and the facts are well-known. The application was a claim for disqualification against a particular judge for a particular act.

Presiding Judge: Mr. Hausner and Dr. Servatius - you will find judgment given on the same point by our Supreme Court a few days ago, Gil Halls vs. the Appeals Committee for Business Tax in Tel Aviv. It would be worthwhile for you to study this judgment as well.

Attorney General: Thank you, Your Honour. I must admit that a few days ago I was more involved in the preparation for this case than in studying judgments. At any rate these arguments that were mentioned here do not have any validity in disqualifying judges on the ground of their national affiliation, which is the contention of Defence Counsel. I ask you not to accept it. If I succeed in replying to the other arguments about competence, and I hope I shall succeed, there is nothing wrong in the fact that a Jewish judge, an Israeli, should judge the oppressor of his people. On the contrary, we can be thankful for the fact that there is some place in the world, where Jews possess sovereignty, courts, prosecuting machinery and the ability to place on trial a man who committed crimes against this people. As I shall show the Court, a tradition has developed in England and also in the United States according to which the manner of bringing the Accused: into the area of jurisdiction is not relevant to the question of competence. A violation of the sovereignty of a state by an act of incarceration, arrest within its borders and the removal of a person outside its territory can become an issue between states. And indeed they did serve as the subject of a controversy between the State of Israel and the Government of Argentina in the matter we are discussing.

But in all the authorities I shall quote forthwith it is laid down that it is not the concern of the Accused: to complain about violation of the sovereignty of another state. It is the concern of the state affected. From the point of view of the Court before which a person is brought in accordance with an indictment, the question of competence can arise in consequence of the substantive law of the country of the trial, or in consequence of procedural practices.

Adolf Eichmann has been charged according to valid substantive law and I shall deal later on with the objections of Defence Counsel to the validity of the law- while Section 4 of the criminal Procedure (Trial upon Information) Ordinance, establishes the competence of the District Court of Jerusalem.

From the point of view of the external circumstances, the question can obviously arise: was the Accused: promised suitable possibilities for defence? The Court sees here a defending counsel who was chosen by the Accused: himself to defend him. In order to enable him, the Defence Counsel, to appear here this morning, the Knesset had to amend the Advocates Ordinance of the State of Israel. And it may be assumed that the Court will be punctilious that all the other measures which our legal system insists on be strictly observed, in order to safeguard a fair trial.

Before analysing the authorities I should like to say only one thing about that letter the content of which Defence Counsel read, signed as he says under coercion and pressure. It is not the signature of Adolf Eichmann on that letter which assigns to an Israeli court the authority to try him. I am merely surprised why that letter was so completely invalid for all possible purposes, but was perfectly valid for Dr. Servatius to rely upon on 22 December 1960 when he applied to the Minister of Justice to grant his request that the State of Israel should bear the costs of the defence.

Presiding Judge: I do not understand this argument, Mr. Hausner.

Attorney General: I do not understand why this letter has been mentioned at all. I do not base the competence of the court on the letter, but I fail to see the possibility of saying: This letter is void from Eichmann's point of view, but it is binding on you, as the Defence Counsel wrote.

Presiding Judge: This letter is not before us.

Attorney General: I am ready to submit the letter from Dr. Servatius to the Minister of Justice. It says in the paragraph referred to, as follows:

"Hierzu verweise ich auf die Erklaerung, die Adolph Eichmann im Mai 1960 anlaesslich seiner Festnahme in Argentinien unterzeichnet hat. In dieser ihm vorgelegten Erklaerung erwartet er die Gestellung eines Rechtsbeistandes und hat sich daher bereit erklaert, nach Israel zu kommen, um dort vor ein zustaendiges Gericht gestellt zu werden."
Dr. Servatius, inter alia, submitted his request to the State of Israel concerning the defence costs, and this was granted.

Presiding Judge: Are you submitting the letter? Do you have a Hebrew translation of the letter?

Attorney General: No, your Honour. I only thought of submitting it this morning.

Presiding Judge: Please translate it. Let the interpreter see what you quoted, and which paragraph, so that he may translate the part which is relevant for you.

Interpreter: "I hereby refer to the statement signed by Adolf Eichmann in May 1960 when he was detained in Argentina. In this statement which was submitted to him he expected to be given legal aid, and because of this he expressed his readiness to come to Israel to appear there before a competent Court."

Judge Halevi: Where is the Accused's letter of the month of May?

Attorney General: I shall produce it immediately. This is the original letter. It was correctly read out by Defence Counsel.

Presiding Judge: I mark the letter which you submitted this morning T/2 - the Defence Counsel's letter dated 22 December 1960. Are you submitting this letter too?

Attorney General: I was requested by Judge Halevi to submit it and I do so submit it.

Presiding Judge: I mark the letter T/3.

Judge Halevi: Do you, Sir, maintain that the letter of May 1960 was signed by the Accused: of his own good will?

Attorney General: Your Honour, I say as I shall argue forthwith, that there is no practical difference whether it was signed of his own good will or not. This letter does not have any value from the point of view of providing a ground for competence, and I would not have mentioned it at all and I had no intention of relying on it, had it not been for the remarks made this morning concerning this matter. This question does not strengthen or weaken the case at all.

Judge Halevi: Then the two letters are not relevant in practice.

Attorney General: In practice they are not relevant.

Presiding Judge: You say: There is no practical difference whether this statement was made...

Attorney General: Freely or under compulsion.

Dr. Servatius: I request the Court that Document No 3 as you designated it...

Presiding Judge: Document T/2. Dr. Servatius...In view of the fact that the Prosecution itself has stated that it does not strengthen or weaken the case, should be declared as irrelevant.

Attorney General: I shall not rely on this letter, not on the first nor on the second.

Judge Halevi: Perhaps it is possible to ask Dr. Servatius if he relies on the letter of his client of May 1960 - perhaps that one can also be eliminated?

Dr. Servatius: I refer to the letter which Adolf Eichmann wrote himself, which is Exhibit No 3.

Presiding Judge: I understood previously that you were referring to the letter which you yourself wrote and that is T/2. Evidently this is my mistake.

Judge Halevi: You, Sir, have asked us to eliminate the letter of Adolf Eichmann, to remove the letter of the Accused: from our deliberation. Is that correct? Or is it the letter that you wrote to the Minister of Justice, or both?

Dr. Servatius: I wish to declare as irrelevant only the letter which I, Defence Counsel, wrote to the Minister of Justice, and not the letter which Eichmann himself wrote, which in my opinion is relevant.

Presiding Judge: We are talking of letter T/2 - that is final.

Judge Halevi: Why, in your opinion, Dr. Servatius, is the Accused's letter relevant?

Presiding Judge: If you have anything to add to the matter of these two letters which arises here, please continue.

Dr. Servatius: I will say this briefly: Only the letter of Adolf Eichmann himself is relevant in relation to the decision of the trial itself, and it does not add or subtract whether the Attorney General: decides that it is relevant or not.

Attorney General: May I be permitted to continue, your Honour?

Presiding Judge: Please do.

Attorney General: Your Honours, I mentioned and submitted Dr. Servatius' letter only because I do not want a double standard approach. He cannot ascribe on the one hand, as he says, to official representatives of the State of Israel an act of coercion in the signing of a letter and on the other hand rely on that selfsame letter for the sake of any object required by him. This cannot be. Either the letter is entirely invalid, and then it is invalid for any purpose, whatsoever, or it is entirely valid and then it is valid for every purpose whatsoever. But it is not possible to disqualify it for one purpose and validate it for another purpose. And to this I objected. I objected to the nature of the argument.

Presiding Judge: All right - perhaps you will not prolong this discussion.

Attorney General: I shall not prolong the discussion on this. And, with the Court's permission I should like to pass to an analysis of the authorities.

Presiding Judge: Please be seated while we record a decision in this matter.

Dr. Servatius: May I say something?

Presiding Judge: Please tell him that the normal practice is that whoever objects, objects. Thereafter his colleague replies to him, and with the special permission of the Court the objector can argue once again. But there must be an end to the debate. This time I shall still allow him to make his observation.

Dr. Servatius: In this document there are two different things: one - the agreement of the person under compulsion; two - the promise of an authorized person, one who possesses authority; and this promise must be kept.

Presiding Judge: I understand, therefore, that your argument is that the portion referring to the promise is permitted, and the other portion is invalid. Is this your contention?

Dr. Servatius: Yes, certainly.

Presiding Judge: Dr. Servatius, I am sorry. It is necessary to turn to you again. I understand that these last remarks in your argument referred to your letter dated 22 December and not to the Accused's statement. With regard to this letter of 22 December you said that part of it is valid and part is invalid. Did I understand you correctly or does it refer to Exhibit T/3 - the statement of the Accused himself.

Dr.Servatius: I suppose I did not express myself properly. My letter, signed by me, T/2, is proper in all its parts and I am not challenging it. I only replied to the Prosecutor's argument that any demand was based on the promise that was included in Eichmann's letter which, I say, was dictated to him.

Presiding Judge: Decision No. 1. We accept letter T/2 as an exhibit without expressing an opinion as to its value as proof. I would like to explain to you, Dr. Servatius, that in future, if you wish to object to the submission of a document, you must state your objection before the document is marked by the Court, otherwise you will be too late.

Dr. Servatius: Yes, certainly. I have understood this.

Attorney General: Before I proceed to an analysis of the authorities, I should like to deal with one problem which Defence Counsel raised this morning, namely the difficulties in preparing the defence of the Accused: in view of the fact that the trial is being held in Israel. And here he is unable - as he argues - to bring witnesses; some fear for their personal safety while for others there is no one to pay the expenses of their journey and their stay in Israel. Already in preliminary contacts with the Defence I informed them that I would support an application on which, of course, only the Court could decide, that affidavits could be submitted as evidence. And if Defence Counsel has people who are ready to give testimony that contains something in favour of his client, I will not bar the way even though I would be deprived of the right of cross-examination. I would agree to the submission as to their relevance. But I am ready to take a further step forward.

Judge Halevi: Pardon me, Sir. You say that generally speaking you would be prepared to accept affidavits of overseas witnesses, of witnesses for the defence, I understand, and in this way waive your right of cross- examination.

Attoney General: The stand I am taking is not such a general one. If Defence Counsel convinces us that there is, in fact, a witness who is able to describe matters which are relevant to the defence and there is no possibility of bringing him to Israel, as he himself is likely to be placed on trial here because of offences which he himself committed or because the defence does not have the financial means for this, I am ready to discuss each individual case and if I am convinced that it is right and just that the affidavit should be submitted to the Court, I will support the application that such an affidavit should be submitted to the Court.

Judge Halevi: I understand. But the difficulty will remain in certain instances. How can the Court depend on the credibility of the witness, if there will be no cross- examination. Possibly you will in this way be waiving or be forced to waive a cross-examination. Generally speaking in a case where a trial is being conducted with witnesses testifying before the Court - the waiver of cross- examination by the opposite side is considered in most instances tantamount to absence of any dispute in regard to the witness' reliability. Here it will be impossible to come to such a conclusion. If we do not arrive at this conclusion, how can a judge distinguish between reliable evidence and unreliable evidence?

Presiding Judge: Perhaps it is still premature to deal with this question at this stage.

Attorney General: If the Court wishes to have my reply, I will naturally give it.

Presiding Judge: When a concrete case arises we shall go into the matter.

Attorney General: As the Court decides.

Presiding Judge: This is not a decision - this is a suggestion.

Judge Halevi: I see the relevance at this stage in that the Attorney General: wishes to reply to the argument that there can be no fair trial owing to the lack of the possibility of bringing defence witnesses here from abroad. The answer is that there is a good alternative for this and that is an affidavit. My question is: the alternative is not such a good one, since it does not allow the Court to differentiate between truthful evidence and false evidence. In this way we may be inundated with thousands of false testimonies.

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