Presiding Judge: Can you submit the book which you have
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
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
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
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
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
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
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
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
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
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
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.