The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of Adolf Eichmann
Session 2
(Part 3 of 3)

Holocaust, Adolf Eichmann, Eichmann trial, holocaust, Jewish holocaust
Against Nazi Germany's abandonment of the maintenance of peace, the human race employed military measures and ventured forth, with weapons in hand, to protect its existence. Against the legal vacuum and chaos, mankind employed new legal principles, or more correctly - gave expression to those principles which had been entrenched and rendered sacred and which had become the heritage of all civilized peoples. Anyone wishing to discover the sources of public international law beyond Vattel and Grotius will be able to find them in Chapter 1 of the Book of Amos: "For three transgressions of Edom, and for four, I will not turn away the punishment thereof." But perhaps it will not be necessary to go so far back. In order to fill the legal vacuum it was absolutely essential to formulate principles having retroactive application, since if that had not been done, the greatest sinner would have had the greatest reward. Whoever decreed without law and without judges that it was permissible to cast off every legal and moral restraint would have been rewarded by the fact that there was no law which he had infringed, since any law which could be imposed upon such a criminal, after he had been overcome and defeated, could only have been a retroactive one. We shall still have to consider whether the acts of Adolf Eichmann were lawful even according to the laws of Germany, and even according to the law of the internal jurisdiction of that country's SS.

But we are not dealing with that now. I maintain that the human race had no alternative but to proclaim a formulation of the principles of international law and to declare "these principles applied also at the time when you committed these acts and all the terrible crimes that you perpetrated," because if they failed to do so, there would be no law by which the Nazi criminals could be judged.

And now let us see how these matters developed in the various stages of international proclamations. First of all there was the Moscow declaration of 1 November 1943, signed by Roosevelt, Churchill and Stalin. The Court will be able to find it, amongst many other references, in the publication called "The Green Series" (Trials of War Criminals before the Nuremberg Military Tribunal). This is an official American publication called "The Subsequent Trials" - not the `major' trials, but the trials of less important cases. I read from the fourth volume on page X:

"THE UNITED KINGDOM, the United States and the Soviet Union have received from many quarters evidence of atrocities, massacres and cold-blooded mass executions which are being perpetrated by the Hitlerite forces in the many countries they have overrun and from which they are now being steadily expelled. The brutalities of Hitlerite domination are no new thing and all the peoples or territories in their grip have suffered from the worst form of government by terror. What is new is that many of these territories are now being redeemed by the advancing armies of the liberating powers and that in their desperation, the recoiling Hitlerite Huns are redoubling their ruthless cruelties."
This declaration warns and provides that war criminals, the transgressors, will receive their punishment and will be brought to trial for their actions.

After the victory there followed a declaration containing the agreement known as the 'London Agreement' of 8.8.45., which is to be found in the same volume on page XI, an agreement which was reached between the Governments of the United States, France, the United Kingdom and the Soviet Union, and which laid down that an international military tribunal would be established to try the Nazi war criminals, and also that other courts would be set up for the same purpose. In terms of this agreement the Four Powers drew up the charter known as the 'Nuremberg Charter' - the Charter of the International Military Tribunal - which is also to be found in the same volume at page XIII. Here we find the definition of the crimes for which the criminals would be brought to trial. Article 6 (a) specifies crimes against peace, 6 (b) war crimes and 6 (c) crimes against humanity. Crimes against humanity are - and I quote from the English version -:

"CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan."

Thereafter the Occupying Powers in Germany adopted the CONTROL COUNCIL LAW No. 10. This is to be found in the same volume on page XVIII and the law lays down - I quote from the English version - (the date of signature is 30 October 1943, but it was released for publication only on 1 November 1943).
"In order to give effect to the terms of the Moscow declaration of 30 October 1943 and the London Agreement of 8 August 1945, and the Charter issued pursuant thereto and in order to establish a uniform legal basis in Germany for the prosecution of war criminals and other similar offenders, other than those dealt with by the International Military Tribunal, the Control Council enacts as follows:

Article I

The Moscow Declaration of 30 October 1943 `Concerning Responsibility of Hitlerites for Committed Atrocities' and the London Agreement of 8 August 1945 `Concerning Prosecution and Punishment of Major War Criminals of the European Axis' are made integral parts of this Law. Adherence to the provisions of the London Agreement by any of the United Nations, as provided for in Article V of that Agreement, shall not entitle such Nation to participate or interfere in the operation of this Law within the Control Council area of authority in Germany.

Article II

Each of the following acts is recognized as a crime:

(a) Crimes against Peace. Initiation of invasions of other countries and wars of aggression in violation of international laws and treaties, including but not limited to planning, preparation, initiation or waging a war of aggression, or a war of violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.

(b) War Crimes. Atrocities or offences against persons or property constituting violations of the laws or customs of war, including but not limited to, murder, ill-treatment or deportation to slave labour or for any other purpose, of civilian population from occupied territory, murder or ill_treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity.

(c) Crimes against Humanity. Atrocities and offences, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated.

(d) Membership in categories of a criminal group or organization declared criminal by the International Military Tribunal."

My submission is that all these declarations only serve to define by means of formulation and codification, principles which have long been accepted by civilized peoples. They did not create anything new. They merely established that murder is - murder; persecution is - persecution; robbery is - robbery; and even if that be called 'the Fuehrer has ordered - we follow!' still that is murder, persecution and robbery. And this is what the International Military Tribunal said in its judgment.

May I be permitted to observe that in that tribunal there sat lawyers who were amongst the very best of the states which constituted it. These were not military judges, even though the tribunal was called military. It comprised professional judges of the highest rank, from all the countries which established the tribunal. Amongst them are judges serving to this day in the highest positions. And if at any time until the present the human race was ever united in the sphere of law to define a common law, it was on that great occasion at Nuremberg. I read from the judgment in Vol. I of the official English version. This is called the 'Blue Series,' Your Honours. This judgment is to be found there twice, once in volume 1 and once in volume 22 of the same series, both in English, German and French; all of them official editions.

In referring to the law of the Charter, the International Military Tribunal says, at page 218 - I read from the judgment :

"The Charter is not an arbitrary exercise of power on the part of the victorious Nations, but in the view of the Tribunal, as will be shown, it is the expression of international law existing at the time of its creation; and to that extent is itself a contribution to international law. The Signatory Powers created this Tribunal, defined the law it was to administer, and made regulations for the proper conduct of the Trial. In doing so, they have done together what any one of them might have done singly; for it is not to be doubted that any nation has the right thus to set up special courts to administer law."
In plain language the Court is saying: It is not our purpose to renew or add anything. Our purpose is to establish in words and sentences what should have been so clear that it should not have been necessary at all to define those words or phrases. But after the occurrence of these events in Europe, the human race apparently needed such a formulation, and determined this by means of codification. And in one of the judgments of the American Military Tribunals set up in Germany, one of the "Subsequent Trials" known as the "Trial of the Jurists," the Court which sat was composed of Judge Marshall - the senior justice in the State of Ohio - Judge Brand, of the Supreme Court of the State of Oregon, and Judge Blair of the Court of Appeals of the State of Texas. This is to be found in the `Trials of War Criminals,' Volume 3 of the Green Series. This was also Case No. 3, although the number of the volume and the case no. were not always identical. This is the case called the 'Justice Case.' The judges quote with approval the statement of Lord Wright and make the following remarks on page 967:
"But international law is progressive. The period of growth generally coincides with the period of world upheavals. The pressure of necessity stimulates the impact of natural law and of moral ideas and converts them into rules of law deliberately and overtly recognized by the consensus of civilized mankind. The experience of two great world wars within a quarter of a century cannot fail to have deep repercussions on the senses of the peoples and their demand for an international law which reflects international justice. I am convinced that international law has progressed, as it is bound to progress if it is to be a living and operative force in these days of widening sense of humanity."
For the reasons stated by Lord Wright, this growth by accretion has been greatly accelerated since the First World War. The IMT Charter, the IMT judgment, and C.C. Law 10 are merely `great new cases in the book of international law.' They constitute authoritative recognition of principles of individual penal responsibility in international affairs which, as we shall show, had been developing for many years.

And on page 970:

"As to the punishment of persons guilty of violating the laws and customs of war (war crimes in the narrow sense), it has always been recognized that tribunals may be established and punishment imposed by the state into whose hands the perpetrators fall. These rules of international law were recognized as paramount, and jurisdiction to enforce them by the injured belligerent government, whether within the territorial boundaries of the state or in occupied territory has been unquestioned. (Ex parte Quirin, supra; in re Yamashita, 327 U.S.1,9O L. ed.)"

Presiding Judge: Which judgments are these?

Attorney General: These are American decisions of the United States Supreme Court. I shall reach them in the course of my argument.

"...However, enforcement of international law has been traditionally subject to practical limitations. Within the territorial boundaries of a state having a recognized, functioning government presently in the exercise of sovereign power throughout its territory, a violator of the rules of international law could be punished only by the authority of the officials of that state. The law is universal, but such a state reserves unto itself the exclusive power within its boundaries to apply or withhold sanctions. Thus, notwithstanding the paramount authority of the substantive rules of common international law, the doctrines of national sovereignty have been preserved through the control of enforcement machinery. It must be admitted that Germans were not the only ones who were guilty of committing war crimes; other violators of international law could, no doubt, be tried and punished by the state of which they were nationals, by the offended state if it can secure jurisdiction of the person, or by an international tribunal if of competent authorized jurisdiction."
And on page 982, the Court states - I read from the judgment:
"Finally, we quote the words of Sir Hartley Shawcross, the British Chief Prosecutor at the trial of Goering, et al.: "The rights of humanitarian intervention on behalf of the rights of man trampled upon by a state in a manner shocking the sense of mankind has long been considered to form part of the [recognized] law of nations. Here, too, the Charter merely develops a pre- existing principle."
We shall return to this judgment in the course of my argument.

Presiding Judge: Will you be arriving at some point where we may stop?

Attorney General: I can stop now, if you like.

Presiding Judge: Will you be ready to reply tomorrow to the material which has been submitted in writing by Dr. Servatius?

Attorney General: I shall do my very best, Your Honour.

I shall endeavour to study the material to the extent that it is possible, together with my colleagues, and I shall try to reply tomorrow. If I do not succeed, I shall ask for the Court's indulgence.

Presiding Judge: The Court does not wish to impose an excessively heavy burden upon you. There is substantial material there.

Attorney General: I have agreed to a method which is exceptional in our procedure. We do not have written arguments in criminal matters, but I did not want to create difficulties for the Defence. For this reason I did not object when the Court approached me on this matter. But, at the same time, I simply have to study the arguments. Dr. Servatius wrote these submissions in one hundred pages. It would certainly have taken half a day to have read them out.

Presiding Judge: Another matter: This applies, in fact, to both sides. We already notice in the written arguments of Dr. Servatius that there is reference to authorities which are not in our possession - books and legal references. Obviously this also applies to the Attorney General. We would ask you to hand in to the Clerk of the Court those books and authorities which have been mentioned here, for our perusal.

Attorney General: I shall do so.

Presiding Judge: What is your position, Dr. Servatius, in this matter?

Dr. Servatius: I shall try to get hold of them. Partly they are to be found in libraries, where it will probably be possible to borrow them.

Presiding Judge: In Israel or abroad?

Dr. Servatius: In Germany. I shall see whether I can procure them.

Presiding Judge: That would not be so convenient. Perhaps you may be assisted by local libraries?

Dr. Servatius: I shall try to ascertain whether these books are available in libraries here.

Presiding Judge: A final matter Mr. Hausner: What about the accused's detention? Do you have a committal order which is valid at the present time?

Attorney General: Yes, Your Honour.

Presiding Judge: Until when is it valid?

Attorney General: The truth of the matter is that I have to check this. I shall advise you tomorrow morning. I believe that we are still covered. If it should be necessary to prolong it, I shall ask for an extension according to the law.

Presiding Judge: I would ask you, please, to clarify this.

Attorney General: I shall not overlook it.

Presiding Judge: We shall adjourn until tomorrow morning, at nine o'clock.

[ Previous | Index | Next ]

Home ·  Site Map ·  What's New? ·  Search Nizkor

© The Nizkor Project, 1991-2012

This site is intended for educational purposes to teach about the Holocaust and to combat hatred. Any statements or excerpts found on this site are for educational purposes only.

As part of these educational purposes, Nizkor may include on this website materials, such as excerpts from the writings of racists and antisemites. Far from approving these writings, Nizkor condemns them and provides them so that its readers can learn the nature and extent of hate and antisemitic discourse. Nizkor urges the readers of these pages to condemn racist and hate speech in all of its forms and manifestations.