The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of Adolf Eichmann
Session 110
(Part 3 of 7)

Attorney General: The Court will find the precedents dealing with the rules of evidence on the last page of this compilation.

The basic principle of the rules of evidence allows the submission of documents which were drawn up by authorized officials in the course of performing their official duty, as proof of the acts or events described therein, and that is one of the accepted exceptions to the doctrine of hearsay evidence - the Hearsay Rule.

Presiding Judge: From which page are you quoting?

Attorney General: I am quoting from pages 42 onwards of the legal material.

Such evidence is admissible on the grounds of the universal assumption that a public official will carry out his duties in a proper manner, and, to use the language of the Israel Supreme Court:

"If it is part of his official duty" (and I add: of the officer) "to record a fact which is known to have occurred, or certain statements which were made in his presence, he must do so honestly and accurately. This official obligation, therefore, constitutes an important and adequate guarantee of the dependability of the matters officially recorded in the said document, and that is what justifies the admission of hearsay evidence of this sort."
While the Israeli judgment dealt with a statutory obligation, since it was the official duty of that officer to prepare documents, and this is what interests the Court in such a case, the rule can be found in its full extent in Wigmore On Evidence, Volume 5, para. 1630 ff, and we would ask to rely on para. 1632 ff. on pp. 513-516, and especially on sub-paragraph (1). From what is stated there, it clearly emerges that this rule applies in every case where a public official is required, whether by specific provision of the law or by the nature of his office, to prepare documents relating to activities and events occurring in the course of his service.

A further result is that, with regard to documents prepared by officials in the course of their duties, there is a presumption not only in respect of the accuracy of what is stated in the document, but also of the authenticity of the document itself, where the documents are kept in official custody.

Thus we may conclude that as regards the document containing details of the meeting with Heydrich - as in the case of many other documents which have been submitted here - there is a presumption under the rules of evidence that the statements in the document serve as evidence of the veracity of their content, and the onus of proof devolves upon the Accused to convince the Court that the documents are false, whereas he is speaking the truth.

The Accused cannot discharge this burden, and not only for the reasons we have already mentioned. In the chart which he drew up for his defence, he indicated October 1939 as the date of his transfer to Berlin. He mentioned approximately the same date in the timetable which he prepared for the Defence. The Defence is about to submit it and we have received a copy of it. Logic also dictates that the person who was selected to carry out the task of fighting the Jews, should already participate at this first decisive meeting.

Furthermore, all of Eichmann's activities in uprooting the population, within the framework of Section IVD4, a fact which he acknowledges, namely the displacement of Jews and Poles from the areas annexed to the Reich, and their transfer to that conquered part of Poland known as the "Generalgouvernement," a task for the purpose of which he received a special appointment - all this was done for the promotion of part of the very plan that was finalized at that meeting. And as has been mentioned, he admitted under cross-examination that he had been in charge of all this uprooting of populations, and he further admitted that the experience which he had acquired in his work in Vienna qualified him for this mission, and he carried it out in co- operation with the institution that had been set up to plunder the property of the deportees - the institution which in typical Nazi perversion was described by the name of "Trusteeship Office East."

We have also learned of the horrors of these mass deportations into the Generalgouvernement from the diary of Hans Frank, the Governor-General of Poland. I have already referred to the relevant extract from the diary in my opening address.

Here, I shall pause to dwell upon the account of the atrocities of the expulsion from Schneidemuehl, as they appear in the report of a Polish-Jewish Aid Committee, which acted in this matter in co-operation with the Red Cross and the Society of Quakers:

"The deportees were not even allowed to take a suitcase with them. Women had their handbags taken from them. Many of the men were deprived of their coats. They were conveyed to three villages: Piaski, Glusk, Bielica, a distance of about 25 to 30 kilometres from Lublin. There they awaited the Stettin deportees - those who were still alive - and from here the march began. Men, women and children marched on foot in a temperature of 22 degrees below zero and on roads covered in snow. Out of 1,200 deportees from Stettin, 72 people were left behind on the way, most of them frozen, amongst them a mother who held her little boy aged three in her arms. She tried to protect him from the frost with her clothes, and in the end both of them collapsed and were left behind in the snow. A little girl, half-frozen, about five years of age, was taken out of the snow, barely alive. No one knew her. She bore on her neck a small cardboard sign with her name: Renatta Alexander from Hammerstein in Pomerania. It appeared that the child had been sent on a visit to relatives in Stettin and she was exiled with them while her parents remained in Germany. They had to amputate this child's frozen hands and feet. Sleds gathered the bodies along the roadway...About 280 of the Stettin deportees died instantly..."
Your Honours, we are still at the beginning of 1940. The Fuehrer had not yet given the order for physical extermination. Eichmann appears here at the beginning of his career. I questioned him about this operation of his. He admitted that, in terms of the plan that had been drawn up, it was up to him to arrange the transportation time-table. In the document it says that in accordance with the office designation, this was going to be implemented by IVD4, and this was also certainly true in respect of the Jews in Stettin. But it also states that Department II ought to deal with the matter. It could not possibly be stated that he was the only one to carry this out - so he said.

When we think of Renatta Alexander, the five-year old girl in the hospital at Lublin with her hands and feet amputated, about the mother and three year old child collapsing in the snow and freezing to death, of the hundreds of victims of the death march from amongst the Jews of Stettin, the discussion with Eichmann about the marking of the documents, the division of authority and the indication of Departments seem to belong to a different world.

The tissue of Eichmann's lies was exposed here as well. In the police interrogation, before he knew how many documents on that subject we possessed, he said at first that the designation IVD4, as a sign of the Section, must have been a printing error - the matter was totally strange to him (ist mir voellig fremd), whereas, in actual truth he had, already at that stage, been taken into the confidence of the Minister of State and the heads of the SS, and of all the occupation authorities in connection with this very operation, and the setting up of his Section was announced to all of them; he dealt with this matter for several months. It simply cannot be that he failed to remember it. And indeed, later on, when the documents were shown to him, then he remembered.

Perhaps at this point it is appropriate to make an observation about Adolf Eichmann's "faulty" memory, in which he tried from time to time to seek refuge when in trouble. He answered me scores of times in cross-examination, regarding important matters which should have been engraved in his memory, that he did not remember. That was how he also replied to the Court about the supply of gas by his Section to the concentration camps; when was it resolved that the Final Solution would be the killing of Jews; about the supply of skeletons and skulls to the Institute of Ancestral Heritage; the liquidation of the ghettos; whether he had seen the loading of Jews on to the trains; about the corrections in the Brown File; the instructions to the Einsatzgruppen; his operations in the area of the Generalgouvernement, and tens of other decisive matters.

In all these matters he places at our disposal his skill at reconstructing and interpreting documents with the aid of the books of Reitlinger and Poliakov. But he is not prepared to place his memory at the Court's disposal, since it is faulty - that is what he says. I imagine that only seldom does one come across a man who is so gifted with such an unusual capacity to remember as this Accused. He is quite capable, should he so desire, of recalling details and minute items about events that occurred many years ago. He can reconstruct, without the aid of documents and notes, but only by virtue of what he knows, minor matters and major ones that took place a long time ago.

In order to assess his amazing power of recollection, it is sufficient to peruse the first seventy pages of his Statement to the police, in the memoirs that he wrote (T/44), in order to realize that the man had the capacity to describe, some twenty odd years later, details of conversations he held, thoughts which passed through his mind, to furnish a detailed picture of the conditions of his service during all the periods, up to the chapter of the extermination, what the rooms looked like at the time, who were the people whom he met with then, their likenesses and their natures. He is capable of remembering, twenty-three years later, what his army pay was at the time he served at Dachau, the names and functions of all the persons whom he met at that time, the food he ate then, the auxiliary services he rendered for his commander, von Pichl, and even the paper on which he wrote his letters to von Pichl and his reports were perforated, and that the numbers of the pages were printed on them.

In those memoirs he recorded after he was already in Israel and handed over to the police, he put on paper minute details about his personal impressions and experiences - where he spent his free time, the name of his teacher in elementary school, everything connected with his being accepted into the employ of the "Vacuum Oil" company, who recommended him, who were the officials in that company, what his salary was, where he travelled in the company's service. He quotes the name of the book from which he began at that time to study Hebrew, and he writes Ivrit Levad.*{*Hebrew On One's Own} He remembers that the price of lentil soup with sausage was 35 pfennig, twenty four years ago, and with it one received a free roll, and that he paid 45 pfennig for a beer. He remembers who he met on the ship during a voyage to the Near East in 1937, in which hotel he stayed in Cairo, and other minor details indicative of a very unusual power of recall. He forgot only one detail: That he had already revealed, both in writing and orally, certainly without realizing or knowing that this would be to his detriment, this wonderful memory, and that when he now attempts to seek refuge in a hazy memory in respect of important and decisive matters - nobody would be able to believe him anymore.

And now a few words about the other legal problem, which links Eichmann to the totality of criminal acts.

The legal principle I wish to stress at this point and which has far-reaching implications concerning his role in the web of crimes set out in the indictment, is the well- known principle of criminal conspiracy. The authorities which we shall produce are drawn both from local judgments and from Anglo-Saxon judgments dealing with serious crimes, also those performed in a normal criminal context - one act of murder, one case of robbery and so on. But there can be no doubt that the legal principles that were enunciated in these decisions are also valid in the case of crimes embracing an entire continent, and the crime does not lose its essence simply because it is much more comprehensive and more horrible. The law imposes criminal responsibility upon the murderer of one individual in accordance with the same principle which applies to the murderer of millions.

In conformity with the Common Law, our Supreme Court defined criminal conspiracy in Goldstein's case, on the first page of the booklet, as follows:

"Two or more persons entering into an agreement for a certain object, that object must be considered in the eyes of the law to be 'an unlawful object'."

"The consequence of such a conspiracy," as was laid down in the judgment of the Supreme Court in the case of Keyser, "is that where a person enters into a conspiracy with others to perform an illegal act, he implicitly gives his consent to the employment by his associates of the necessary means to attain that object. Moreover, each one of the conspirators will be liable for the actions of each of the partners to the conspiracy, to the extent that these were performed for the purposes of the conspiracy and in order to advance them."

On page 4 of the booklet before you, extracts are quoted from this judgment, and I shall read only a few lines. In the sixth paragraph it says:
"The responsibility of the conspirator for the acts of other conspirators is a substantive principle. There is no doubt that the learned Judge in the lower court thought that it was permissible to make use of the evidence of the commission of an act by one conspirator as admissible evidence against any of the other conspirators. From a substantive point of view it is permissible to find the remaining conspirators guilty of the same act, even though they did not participate in the performance thereof. In other words, one conspirator is in the nature of an agent for the other conspirators, and his acts must be judged as those of an accomplice to the crime within the meaning of Section 243 of the Criminal Code Ordinance."
This was a judgment of the late Justice Goitein, whose tragic loss is still fresh in the minds of all of us. In his judgment, Justice Goitein quotes a passage from Williams, which appears above this extract. Further on, on page 5 in the annexure, there is the American judgment of U.S. versus Boyd (1890) 54 F864, citing Lamb versus The People:
"The principle which underlies and controls cases of this character is the elementary and very familiar doctrine, applicable alike to crimes and mere civil injuries, that every person must be presumed to intend and is accordingly held responsible for the probable consequences of his own acts or conduct. When, therefore, one enters into an agreement with others to do an unlawful act, he impliedly assents to the use of such means by his co-conspirators as are necessary, ordinary, or usual in the accomplishment of an act of that character."
And this is the conclusion that was reached in the criminal appeal of Sweetland, and the late Justice Goitein also relied upon it, at the top of page 5 in your booklet, where it says:
"Every act done by a conspirator in furtherance of the conspiracy is done on behalf of all the conspirators."
Hence, as was laid down in the judgment of Goldstein and Keyser, every party to a conspiracy becomes an agent for the other conspirators, and his acts are in law like the acts of an accomplice to a crime.

The basic doctrine in the law of criminal conspiracy developed, in the course of time, into a principle of the law of evidence, and evidence of the acts of one conspirator can be used against the other conspirators for two purposes: Firstly, in order to establish the very existence of the conspiracy and its object; and, secondly, to prove as a consequence the criminal responsibility of each of the conspirators, provided the requirements which the doctrine lays down for the existence of criminal conspiracy are met. This doctrine, as far as the rules of evidence are concerned, that is to say - the use which may be made of the acts of one conspirator against others - also emerges from further judgments - amongst them, the Amouri judgment (page 2 of the booklet) which speaks of the covenant entered into between the conspirators. And, to quote the judgment:

"When that unlawful 'covenant' has been entered into and agreed upon by all the conspirators, they become criminal Siamese twins who are no longer separable."
In other words: The criminal conspiracy, in itself, constitutes a complete crime, and even if nothing is done to promote it or to fulfil the criminal purpose. But if something has been done in furtherance of the conspiracy and the fulfilment of the criminal purpose for which the said conspiracy was entered into - each one of the group of accomplices shall bear criminal responsibility for this act.

Nor is there any need for the conspirators to know each other, as was laid down by the Supreme Court in the Shukron case (page 1 of the booklet):

"There is nothing herein to prevent a man from being found guilty if conspiracy of evidence to that end exists, for a man can be found guilty of entering into a conspiracy with other persons even if he did not know, or was not acquainted with, all the others, especially when a division of tasks has been made for the commission of the crime, for the sake of which the conspiracy was entered into."
And there is the following quotation in Williams' book:
"The conspirators need not have met or communicated with each other, for all save one may have been enrolled by a single originator, or they may have been enrolled in a chain."

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