The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of Adolf Eichmann
Session 113
(Part 6 of 6)

Presiding Judge: Can you submit the book which you have mentioned?

Attorney General: Certainly, they will be put at the Court's disposal after the end of this session.

Presiding Judge: By the way, you must also let us have the volumes of the Wright collection which have been mentioned, since we do not have them and they are not in the library of the Supreme Court, either.

Attorney General: Maybe the collection we have was borrowed from there.

Presiding Judge: No, this time it belongs to you.

Attorney General: And now a few comments in conclusion.

I have been reminded that, among the list of satellite countries which stood later in the breach, and did not hand over the Jews, although at first they had co-operated in the crimes, there was also Bulgaria, and I have to mention this in order not to remain indebted to it. And I must also mention the German Graebe who intervened in order to save Jews, and whose deposition has been submitted to you here - the fearful description of executions by the Special Operations Units - I have to mention this.

Presiding Judge: If you wish to complete the list of these states, you must also mention Romania.

Attorney General: Yes, I am coming to Romania. It is quite true that in the end Romania also did not hand over her Jews - although Hitler depicted Antonescu at first as the symbol and paradigm of a statesman who knows how to solve the question of the Jews. It is true that the Jews of Romania were saved in spite of all the attempted intrigues, and in spite of all the deceit by Eichmann and by his representative in Bucharest, Richter. In the end, despite the disaster which befell the Jews of that country in the camps of Transnistria, a large part was saved. Tens of thousands died, but hundreds of thousands were saved.

One further remark, about Life Magazine and the articles it published, which we showed to the Accused during his examination, and which were also shown to him when he was interrogated in Bureau 06. I should like to ask the Court to note the fact that at first the Accused made some remarks about this publication, and later, when the number of these remarks increased, as Inspector Less has testified here, he undertook to mark with agreed signs, all those places about which he had reservations, as well as those about which he had no reservations, and one may therefore see in this an admission of the correctness of the quotations.

Adolf Eichmann carried out the crimes with which he is charged in the most extreme, pitiless and cruel manner. Although this is not so decisive for the conviction, it may be decisive for another stage, and I ask the Court for a finding that he did everything he was asked to do with zeal, willingly, and with boundless passion. And if there are any Jews left in spite of his efforts, this is not due to him, it is due to the advance of the armies of the USSR, who saved the remnants in the countries of the East, and to the advance of the Western Allies from the opposite direction, who were able to save the tens of thousands of camp inmates who were still alive.

The Jewish People will always remember these armies with gratitude for its deliverance. This was not Adolf Eichmann's doing. When he spoke to Sassen he said: "I did not finish the job," and he excused himself, saying: "Not all the Jews were fed to the ovens."

Your Honours, we have thus completed the survey of the revolution which the Nazis intended to bring about in Europe and in the world - to turn back the wheel of progress, to wipe out the achievements of culture, and to establish enslavement to the Fuehrer, obedience to whom is the highest command. Like Attila the Hun, Hitler was a scourge. Attila boasted that where his horses had trod no grass would ever grow. Hitler and his henchmen bragged about their cruelty, their ruthlessness, and their ability to kill human beings without pity, to wipe out the memory of towns, nations and states. It seems there is a limit to the number of people whom a man can kill in hatred, in thirst of blood; but there is no limit to the number of people who can be killed by the cold, systematic decision of a categorical imperative.

Tragically, the Jewish People was their first victim. But many are the signs which indicate that, if they had won, it would not have been the last. The deportations from Zamosc and Slovenia attest to this. The angry fury was poured out over the helpless masses of the House of Israel. They are gone, and no human being can bring them back to life. In order to weep over their suffering and death, a latter-day poet of Lamentations would have to come forward and cry out over the destruction of the daughter of my people.

But what happened to them demands justice and punishment. And I am proud that days have come when a man of Israel may speak in the language of the law to the captured oppressor. Here, in this State, one does not speak to the oppressor in the language of supplication, begging for mercy, nor in the language of gifts and bribery. One does not flee from him, nor does one hurry in anguish from one country of exile to another. Here, justice is administered in accordance with the law. And lo, in the days of the return of Judah and Jerusalem, a trial is held here for the violence done to the sons of Judah and for their blood, the blood of innocents that was spilt, as foreseen by the prophet Joel. And again I ask you, Judges in Israel: Bring in a true and just verdict!

Presiding Judge: Mr. Hausner, we have yet to revert to a legal question concerning conspiracy. What is it, in the end, that you are asking for?

Attorney General: Your Honour, my request is for a finding that Eichmann was involved in a conspiracy to commit crimes against the Jewish People and against humanity, in each of its stages; that he held a central position in the set-up of this conspiracy during the stage of its execution, and that he is, therefore, responsible for all the probable consequences deriving from the acts committed by him, and by others, as a result of the conspiracy.

Presiding Judge: This is Section 24 of the law. Alternatively, you could request to convict him of the offence of conspiracy per se.

Attorney General: The offence of conspiracy per se, is committed if nothing is done as a result of the conspiracy. The very fact of entering into the conspiracy already constitutes an offence. But where an act has been committed as a result of the conspiracy, each of the conspirators, according to the rules laid down in the Kaiser case, is responsible for the acts done in execution of the conspiracy - as distinguished from Section 24 - as set forth explicitly in that decision.

Presiding Judge: But this applies where there has been a conviction on the count of conspiracy.

Attorney General: Not necessarily. This was laid down expressly in that decision. The Court will find a statement to that effect in the Kaiser case, viz., that that is to be distinguished completely from an indictment for conspiracy, and that there is no need at all to charge a person with conspiracy. In the Kaiser case, this had not even been included in the indictment.

Presiding Judge: But he was convicted of such an offence.

Attorney General: He was convicted of having abetted the commission of the offence - in fact as a principal in the first degree. They were not convicted of conspiracy; they were convicted of having abetted the commission of the offence.

Judge Halevi: I am not sure that this is a correct interpretation of the Kaiser case. Perhaps it may be implied from some isolated dicta which have been quoted here. But in the end, it looks, prima facie as if all these principles were announced there only in the context of a conviction of conspiracy - Section 35 of the Criminal Code Ordinance - whilst these principles do not apply to accessories to an offence under Sections 23 and 24. As I understand it, here we are dealing only with Section 23.

Attorney General: With all due respect, I beg to read the authorities relied upon in the decision of the Kaiser case - "United States versus Boyd." There it is stated that the elementary underlying principle is the well-known doctrine that every person is presumed to intend the occurrence of the probable consequences of his acts. Therefore, where he enters into an agreement with someone else to commit an unlawful act, he impliedly agrees to the use of such means by the other conspirator, as are required for the promotion of that purpose, and each of them will be accused of anything done by the other conspirators in furtherance of the conspiracy. That is to say, not only of the conspiracy itself; for with regard to the conspiracy itself, this does no constitute any novelty. This is not the innovation of the decision, neither in the Kaiser case, nor in the case of Sweetland. Conspiracy per se, had been known and had existed for a long time.

Now, what is the advance of the law in that respect? What was, in the opinion of the late Justice Goitein, in his decision of 1958, the step forward taken in the Sweetland case? It was that, as a matter of principle of substantive English law - and not only as a principle of the law of evidence - the conspirators are mutually responsible by virtue of an independent rule of the law of conspiracy, as distinguished from Chapter V of the Criminal Code Ordinance. That is to say: Even in the absence of Chapter V, and of all the sections on accessories, and of all the rules resulting therefrom, we should have to hold, by virtue of the rules of criminal conspiracy itself - and this is the rule which was established - that this principle imposes criminal liability on each and any of the conspirators for acts committed within the context of the conspiracy, and its furtherance. This was stated in express terms, for instance, in the quotation on page 5:

"It is my opinion that we do not have to resort to Sections 23, 24, 25 which do not deal directly with the offence of conspiracy, but, as appears from the title of the Chapter, with the question of participation in the commission of an offence. Sections 35 and 36 do exist in their own right, defining a specific offence. According to Section 4 of the Ordinance, we have to construe it in accordance with English law.

"In my opinion, in English law, the offence of conspiracy embraces a rule of substantive law, namely of mutual responsibility of the conspirators, independently of any connection [kesher in Hebrew] with the general rules of participation in the commission of an offence."

May I venture to say that the Hebrew word kesher [rendered here as "connection"] is liable to be misleading. It would have been more appropriate to use the term "without having recourse to," because the word kesher is used here in another connotation: "without having recourse to the general principles of participation in the offence."

Presiding Judge: That is so.

Attoreny General: I continue to quote:

"The conspirators are not mutually responsible for the acts of each other, because they are partners in the commission of the offence, within the meaning of Chapter V of the Criminal Code Ordinance, but by virtue of an independent rule of the law of conspiracy."
Presiding Judge: From that it follows, at first sight, that there has to be a conviction for the offence of conspiracy, and you submit expressly that this is not so.

Attorney General: At the end it is stated that the judge was right in convicting each of the appellants on the counts as laid down in the indictment, even if active participation in the offence had not been proved every time against each of them separately.

Presiding Judge: But what did he convict them of?

Judge Halevi: The indictment contained 14 counts, in three of them the appellants were accused of criminal conspiracy under Section 35, etc. Apparently, the reference is to these three.

Attorney General: No, Your Honour, in this respect the question was precisely that the matter of conspiracy had not been mentioned generally in the indictment.

Judge Halevi: But three counts of special conspiracy were mentioned.

Attorney General: The court repeatedly states - in other passages as well - that this does not have to be mentioned at all in the indictment. The court continues and states (on our page 4):

"The question arises...whether the application of this rule is really limited to the law of evidence only, or whether we have here a rule of substantive law stating that one conspirator is responsible for the act of the other conspirator, provided that the act is committed at the time of the conspiracy, and in its furtherance. There is no doubt that the learned judge in the lower court was of the opinion that, from the substantive point of view, the evidence of the commission of an act by one conspirator was admissible evidence against all the other conspirators. In other words, all the other conspirators may be convicted of the same acts, even if they did not participate in their perpetration."
This is the main point - and I emphasize these words:
"A conspirator is considered to be an agent on behalf of the other conspirators, and his acts are deemed to be acts of a partner in the commission of the offence, within the meaning of Section 24 of the Criminal Code Ordinance."
However, there is no need to introduce Section 24, for he becomes a partner, as if Section 24 applied to him.

Presiding Judge: Well, now the submission has been clarified.

Judge Raveh: There is yet another legal question, Mr. Hausner, in connection with the corroboration of the evidence of an accomplice. You have stated that in this case there always exists corroboration through documentary evidence. Now, it is possible that such documents, too, have been produced by an accomplice to the offence. An example of this is the matter of the skeletons. There is Sievers' testimony, and, in addition, there are a number of letters addressed to Eichmann - not emanating from Eichmann, but addressed to him.

I do not wish to suggest that in this matter there is no corroborating evidence, as for example by Henripierre.

I refer to this matter only by way of example. Let us assume that there had not been anything else. Or, for instance, the same question exists in the matter of gas. There was a letter - in addition to Gerstein's evidence - addressed to Eichmann, or a letter in which Eichmann was mentioned, and once again not a letter emanating from Eichmann.

My question is: Are such documents which also emanated from accomplices, in your opinion, sufficient corroboration, if there is nothing else (and I do not yet wish to make any finding in that respect)? Is my question clear?

Attorney General: Yes, Your Honour. I think that sufficient corroboration exists. I have not produced the evidence of an accomplice. What is the underlying principle of corroboration? It is dangerous to rely on the evidence of an accomplice to the offence, for he may have various motives likely to impair his trustworthiness. But where I have an official letter, this is no longer a matter of the testimony of an accomplice to the offence. I rely upon a document of the Reich, on an internal report - this is not the evidence of an accomplice to the offence. This is an act carried out in the exercise of the functions of Wetzel, or of Sievers, or of Brandt. Had I called Wetzel before this Court, and, independently of these documents, he had stated these facts, the Court would have said: "Why, he himself is tainted by the same crime, and where is the corroboration?" But if I produce to you the internal minutes, or the official document, or the report - this is an act of the authorities of the state. That is not tainted by the stigma of ordinary corroboration.

For example, Wisliceny's testimony - and this I am bound to state - is at any rate corroborated most strongly by the Kasztner Report. And, for instance, the entire Becher affair - even if we consider Becher and Wisliceny as accomplices to the crime committed against Hungarian Jewry - and we certainly must do so - the corroboration to be found in the Kasztner Report is very strong. For, when Kasztner writes in his diary: "Wisliceny came to me and told me so and so, this is very strong corroboration of what Wisliceny wrote later. And when we know of the discussions which took place between Becher and Himmler - or, more precisely, between Becher and Himmler on the one hand and Eichmann on the other - the Court will remember - and at this stage, I do not need to tire you by repetition - and this is later reflected in the Kasztner Report, we have a picture complete in all its aspects.

Although Wisliceny was actually an accomplice to most of Eichmann's crimes - and this is not disputed - and Becher certainly was an accomplice in the attempt to extort Jewish property in Hungary - not in the deportation, but certainly in the extortion, in an offence against property - then there exists corroboration in the official documents, and these are no longer affected by the blemish applying to the oral testimony of an accomplice to the offence.

Judge Halevi: They are part of the "res gestae."

Attorney General: They are part of the "res gestae"; they are part of the occurrence of the act itself.

Presding Judge: Well, thank you, Mr. Hausner. We shall break off here.

The next Session will take place on Monday next, at 8:30, when we shall hear the summing-up for the Defence.

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