WRITTEN PLEADINGS SUBMITTED BY COUNSEL FOR THE APPELLANT ADOLF EICHMANN
31 January 1962
re: Criminal Appeal 336/61
Adolf Eichmann versus The Attorney General
I make the following statement, in my capacity as Counsel
for the Defence of the Accused, in respect of the appeal
submitted with the pleadings on 15 December 1961: Judgment
and sentence are impugned to the full extent for reasons
which have to be considered ex officio, arising from Art. 65
The following are submitted as reasons to be considered ex
I. The participation in the decision by Judges who were
disqualified from executing their office, as well as
II. the lack of competence of the court.
I. Disqualification and prejudice of the Judges
Following Decision No. 3, dated 17 April 1961 (Session No.
6, Vol. I, p.60), the Judges in the first instance have,
despite the objection raised by the Defence, unjustly
considered themselves as not being disqualified from
executing their office as judges, nor have they declared
themselves as being prejudiced.
It is not disputed that the Judges have made efforts to
elevate themselves above any sentiment which would preclude
an unbiased judgment of the facts of the case. However,
there are psychological limits to such sincere efforts,
which a judge aiming at objectivity cannot rise above.
The Law of Nations, therefore, prohibits a professional
judge from trying a case, whenever he is immediately
affected by the act and its consequences. Such is the case
here, as the acts that the Accused is charged with have
influence on the Judges to a large extent, too. It is a
question of political events, in which the Accused was
involved in his capacity as representative of another state,
by means of measures taken against the Jewish People, to
which the Judges belong.
Hence, there is here an insurmountable prejudice, by virtue
of the psychological compulsion from which no judge can free
himself, no matter how good his intentions are in handling
the case. It is, therefore, feared that the District Court,
in judging the acts and the personality of the Accused, was
not in a position to do justice under the circumstances.
This apprehension is so obvious and so serious that it was
voiced by renowned lawyers throughout the world, even before
the proceedings commenced.
The same question will also have to be investigated with
regard to the execution of the Judges’ function in the
Appeal to the Supreme Court.
II. Incompetence of the Court
The District Court rejected the objection made by the
Defence on the incompetence of the court. This objection
(1) on general reasons relating to international and
constitutional law, as well as
(2) on the abduction of the Accused from Argentina and his
removal to Israel.
I. General International and Constitutional Reasons (point
4 etc. of the Decision as stated in the Judgment, Vol. V)
(a) Ex post facto law (point 7)
It is not disputed by the Defence that a state can pass ex
post facto laws according to its requirement for its
territory and for its citizens, for such acts which, at the
time they were committed would be regarded by the state as
The District Court Decision, however, misjudges the
situation, by not considering that this criminal procedure
involves an act committed in another country, an act
committed by another state, in which the Accused had become
active as a subordinate agent.
(b) The law conflicts with the principles of international
law (point 10 etc.)
(1) National Law
The opinion held by the District Court, i.e., that the
national law in the present case supersedes international
law, is at odds with the development of international law.
The state is bound by international law, provided it does
not cause a conflict of laws.
Such a conflict does not exist in this case. The Nazis and
Nazi Collaborators (Punishment) Law of 1950 infringes
international law in its effect on aliens and other states.
(2) International Law (point 11 etc.)
(a) The universal character of the charges made against the
Accused (point 12) can, in accordance with the contents of
the Decision, only establish competence where an
international tribunal does not exist. The District Court
in this case does not realize that an international tribunal
is unnecessary, since there is a competent German court
which can try the Accused.
(b) In accordance with the Decision, the universality of the
right to punish (point 14) refers to criminal acts which
cannot be dealt with due to the absence or non-availability
of a competent court. The opinion held by Hugo Grotius,
however, to which the Decision refers under point 14, shows
that universality can only be applied as an alternative.
The principle is: aut dedere aut punire.
(c) The District Court disregards the fact that all criminal
acts of universal nature are always acts againt the laws and
against the will of the state (point 15). In the present
case, however, they are acts committed with the state’s
consent, and by the state.
(d) The crime of genocide, which was referred to by the
District Court for the purpose of comparison (point 17) has
not been subjected, specifically, to the principle of
The Genocide Convention contains merely a suggestion for the
future. This suggestion is for the punishment of the
perpetrators by the competent court of their own nation, if
they are in the captivity of the injured state.
(e) Act of State (point 28 etc.)
The assumption of the District Court, according to which the
acts committed by the Accused can be tried by it, even if
they were an act of state, requires investigation.
It is untenable to deny the presence of an act of state, by
establishing that these acts of state themselves represent
outrageous cruelties. Such outrageous measures in
particular, can only be possible by means of an act of
state; an individual is not capable of committing them.
An act of state can also not be denied by characterizing the
state as a “criminal gang.”
(f) Fundamentally, it is pointed out that the circumstances
according to which an act is deemed to be punishable by
virtue of natural law or general legal conviction, cannot be
compared with the material liability for punishment, for as
long as punishment cannot be accomplished – and generally is
not accomplished – by virtue of existing jurisdiction.
The law presupposes a general liability and a generally
applied standard. Lacking this, prosecution is an
exception and an arbitrary action.
It is particularly in the field of political acts ordered by
states in connection with war events, that punishment has
not generally been applied.
Furthermore there is no desirable prospect of such acts
being generally pursued and punished in the future.
This has been proved by political events, and the lack of
enforcement of the Genocide Convention confirms this in
Abduction of the Accused (point 40 etc.)
The District Court has unjustly declared the abduction
irrelevant, with regard to the competence of the Court.
(a) The reference made by the District Court to the
decisions by English and American courts cannot support the
assumed competence of the court.
Contrary to the rulings quoted in the Decision, this is not
a case where a fugitive perpetrator is unlawfully being
brought before a court, which itself is competent to try
him. On the contrary, it is a case of an Accused who is
being deprived of a judge competent to try him, and who was
brought before an incompetent court. Competence cannot be
established by the forced abduction and forced stay of the
Accused in the State of Israel. It was particularly this
circumstance on which the United Nations Security Council
passed a resolution, demanding that the Accused be brought
before an appropriate court. This, in actual fact, does not
mean before a court of the State of Israel, to which the
Accused had been abducted for the purpose of outting him on
(b) When investigating its competence, the District Court
did not, duly consider the objection raised by the Defence,
which was that the Accused had been abducted by an act of
state effected by the State of Israel, i.e. by the highest
This ex officio abduction can be proved by the fact that the
abductors were not prosecuted in Israel for their criminal
It can also not be considered correct if, in a state with
separated powers, a breach of law is committed by the
government, and that the court states to the international
community that this act cannot be proved, and when the
evidence introduced contradicts the indictment.
(c) Joint declaration by the States of Argentina and Israel.
Contrary to the assumption of the District Court, the
conflict caused by the abduction – which violated
international law – and by the infraction against the
fundamental rights of the Republic of Argentina, is not set
aside. The joint declaration made by these states means no
more than that the conflict is considered to be settled.
Renunciation has not resulted from this, and the breach of
law has not been healed.
Hence it follows that the Republic of Argentina continues to
pursue the infringement of the law, and according to press
reports Argentina has approached the Government of Israel
with a view to finding the perpetrators.
Evidence: Information by the Israel Minister of Justice;
Information by the Argentinian Minister of Justice.
It is assumed that the Republic of Argentina will emphasize
its demand for reparation by asking for repatriation of the
Accused. This depends on the outcome of the investigations.
(d) Subjective rights of the Accused by virtue of
The District Court is wrong to assume that only the states
concerned can derive rights resulting from violation of
international law. This conception must be considered
obsolete on account of the development of international law.
The individual, having duties imposed on him deriving from
international law, must also be granted rights to the same
extent in the case of infringements committed.
It cannot be accepted that an individual becomes a toy of
states who, for the sake of national interests, disregard
the interests of the individual.
e) Acts in foreign countries, inflicted upon aliens.
The District Court is wrong to assume competence for trying
acts inflicted upon aliens in foreign countries, which
[competence] has been contested by the Defence. Precise
reasons were not stated in the Judgment.
The competence of the Court for trying acts inflicted upon
Poles, Czechs and Gypsies is not warranted under any point
of view. A case of administration of criminal justice in
lieu of is non-existing.
Reasons for Appeal in Accordance with Trial Upon Information
a) When establishing the facts of the case, the District
Court presented the events, which form the subject of the
proceedings, in an abridged and simplified form. In the
case of this juristic summary essential data for
establishing the facts of the case remained unconsidered.
bFrom the documents which were made the subject of the
proceedings, those forwarded by the Defence (N-documents),
as well as statements made by witnesses for the Defence,
were not sufficiently evaluated by the Court.
A summary of exonerating factors is being submitted against
the summary of incriminatory viewpoints. The exonerating
factors may give grounds for an investigation of the
incriminatory statement contained in the Judgment.
Example: The Accused is considered to be a chief issuer of
orders, whereas he actually was only the transmitting agent
carrying out orders issued by higher authorities, which
otherwise would have been quite unnecessary.