Indictment

Tuesday, 25 Nissan 5721 (11 April 1961)
Clerk of the Court Criminal Case No 40/61. The Attorney General: versus Adolf, the son of Adolf Karl Eichmann. On behalf of the prosecution, Mr. Gideon Hausner, Attorney General, Dr. Ya'akov Robinson, Assistant to the Attorney General, Mr. Gabriel Bach, Mr. Ya'akov Bar-Or, Mr. Zvi Terlo- Assistant State Attorneys; the Accused in person and his Counsel Dr. Robert Servatius.
Presiding Judge: Adolf Eichmann, are you Adolf Eichmann, the son of Adolf Karl Eichmann?
Accused: [standing] Yes.
Presiding Judge: Are you represented in this trial by Dr. Robert Servatius and by Mr. Dieter Wechtenbruch?
Accused: Yes.
Presiding Judge: You are accused before this Court in terms of an indictment containing 15 counts. I shall read the indictment to you and this indictment will be translated for you into German. This is the indictment against you on behalf of the Attorney General.
FIRST COUNT
Nature of Offence: Crime against the Jewish People, an offence against Section 1(a)(1) of the Nazis and Nazi Collaborators (Punishment) Law, 5710-1950 and Section 23 of the Criminal Law Ordinance, 1936.
Particulars of the Offence: (a) The Accused, during the period from 1939 to 1945, together with others, caused the deaths of millions of Jews as the persons who were responsible for the implementation of the plan of the Nazis for the physical extermination of the Jews, a plan known by its title "The Final Solution of the Jewish Question."
(b) Immediately after the outbreak of the Second World War the Accused was appointed to be the head of a department of the Gestapo in Berlin the functions of which were to locate, deport and exterminate the Jews of Germany and of the other countries of the Axis as well as in the areas which the Axis States had occupied. The Department bore, in succession, these identification numbers: IVD4, IVB4, IVA4
(c) Instructions for carrying out the plan of extermination in Germany were given directly by the Accused to local headquarters of the Gestapo, whilst in Berlin, Vienna and Prague the Accused's instructions were given to the central offices (Zentralstelle fuer Juedische Auswanderung) for the administration of which he was personally responsible until their dissolution, shortly before the end of the Second World War.
(d) In the areas of German occupation the Accused operated through the offices of the commanding officers of the Security Police and the SD and the persons specifically responsible for Jewish affairs who were appointed from amongst the personnel of the Accused's Department in the Gestapo, and who were subject to his directives.
(e) In the countries of the Axis and the occupied areas, the Accused made use of the offices of Germany's foreign representatives in each individual place, and he did so in constant liaison with the special departments of the German Foreign Ministry in Berlin which dealt with matters concerning Jews. In these representative offices advisers were appointed subject to his directives.
(f) The Accused together with others perpetrated the extermination of Jews, inter alia, by means of putting them to death in concentration camps, the purpose of which was mass murder, of which the more important ones were:
1. Auschwitz Millions of Jews were exterminated here, commencing from the year 1941 and until the end of January 1945, in gas chambers, in incinerators, by shooting and by hanging. The Accused directed the commanders of this camp to use the gas Zyklon B and during the years 1942 and 1944 actually took steps to ensure the supply of a quantity of gas for the purpose of exterminating Jews.
2. Chelmno This extermination camp was operated from the beginning of November 1941 until the beginning of 1945, and in it, inter alia, poisonous gases were used.
3. Belzec This extermination camp was operated from the month of March 1942 until October 1943, and in it poisonous gases were used, among other means of extermination.
4. Sobibor This extermination camp was operated from the month of March 1942 until October 1943, and in it were installed, inter alia, five rooms built of stone into which poisonous gases were introduced.
5. Treblinka This extermination camp was operated on 23 July 1942 and until the month of November 1943. Here too, inter alia, poisonous gases were used.
6. Majdanek This extermination camp was operated from the year 1941 until the month of July 1944, and in it, inter alia, poisonous gases were used.
g)Immediately following the invasion of the German Army into Poland, in September 1939, the Accused carried out acts of expulsion, the uprooting of populations, and extermination which were coordinated with massacre units mobilized from the ranks of the German Security Police and the SS and called by the name "Operations Units" (Einsatzgruppen).
Such units operated also after the invasion of the Soviet Union in the year 1941, and advanced in the wake of the German Army. They received their orders directly from the "Reich Security Main Office" (RSHA) and operated in collaboration with the Accused in the extermination of Jews, each within the area of its authority. The Units were made to act especially on the Jewish Sabbath and Feast Days - dates which were selected for the massacre of Jews. These Units exterminated hundreds of thousands of Jews in the German area of occupation in Poland. h. Before the invasion of the German Army into the regions of the Soviet Union and the Baltic countries, Lithuania, Latvia and Estonia, which were annexed to her, four Operation Units were organized by the Reich Security Main Office (RSHA) working in collaboration with the Accused in the extermination of the Jews in the aforementioned regions in that part of Poland which had been annexed to the Soviet Union after September 1939. The acts of these Units included, inter alia, the following operations:
(h) Before the invation of the German Army into the regions of the Soviet Union and the Baltic countries, Lithuania, Latvia and Estonia, which were annexed to her, four Operation Units were organized by the Head Office for Reich Security (RSHA) working in collaboration with the Accused in the extermination of the Jews in the aforementioned regions in that part of Poland which had been annexed to the Soviet Union after September 1939. The acts of these units included, inter alia, the following operations:
(1) Operation Unit "A" put to death in the course of the first four months of the German Army's invasion into the aforementioned regions:
Lithuania: over 80,000 Jews;
Latvia: over 30,000 Jews;
Estonia: about 470 Jews;
Belorussia: over 7,600 Jews;
Russia: about 2,000 Jews;
The province of Tilsit: about 5,500 Jews.
A total of over 135,000 Jews.
(2)Operation Unit "B" up to 14 November 1941 exterminated upwards of 45,000 Jews in Belorussia and other zones.
(3)Operation Unit "C" up to 3 November 1941 exterminated in the Ukraine more than 75,000 Jews - and amongst them about 33,000 Jews of Kiev.
(4)Operation Unit "D" exterminated about 54,000 Jews up to 12 December 1941.
(5)During the period August to November 1942, these Operation Units exterminated approximately 363,000 Jews.
These Operation Units dealt on this scale and with this objective in the aforementioned areas in the extermination of the Jews, beginning from June 1941, and until the year 1944, and exterminated hundreds of thousands of Jews in addition to those previously specified.
i) At the end of the year 1941, the Accused gave orders to deport thousands of Jews from Germany, Austria and Czechoslovakia (the Protectorate) to ghettos in Riga, Kovno and Minsk. These Jews were exterminated - and amongst others- (1) A transport of these Jews from the Reich (Germany) was murdered on 30 November 1941 together with about 4,000 Jews of Riga.
(2) About 3,500 Jews from Germany who were sent to Minsk as mentioned, upon the orders of the Accused, were liquidated by an Operation Unit in Belorussia, together with 55,000 Jews from amongst the residents of the area.
j) The Accused, together with others, caused the deaths of thousands of Jews between the years 1940-1945 in forced labour camps which were administered under a concentration camp regime and where Jews were enslaved, tortured and starved to death in Germany and the countries it conquered.
k) The Accused, together with others, caused the deaths of additional hundreds of thousands of Jews between the years 1939-1945 by means of mass deportations and the assembly of the Jews in ghettos and other places of concentration, which were implemented under cruel and inhuman conditions in Germany and the other countries of the Axis, and also in the occupied regions, namely - in the following countries:
Germany
Austria
Italy
Bulgaria
Belgium
The Soviet Union and the Baltic countries Lithuania, Latvia and Estonia which were annexed by her, and that part of Poland which had been annexed to the Soviet Union after September 1939
Denmark
Holland
Hungary
Yugoslavia
Greece
Luxembourg
Monaco
Norway
Poland
Czechoslovakia
France
and Rumania.
l) The Accused caused the deaths of approximately half a million of the Jews of Hungary by means of their mass deportation to the extermination camp at Auschwitz and other places during the period between 19 March 1944 and 24 December 1944 when he was serving as Head of the "Eichmann Special Commando Unit"(Sondereinsatz-Kommando Eichmann) in Budapest.
m)The Accused carried out all the acts detailed in this count with the intention of destroying the Jewish People.
SECOND COUNT
Nature of Offence: a) Crime against the Jewish People, an offence against Section 1(a)(1) of the Nazis and Nazi Collaborators (Punishment) Law, 5710-1950 and Section 23 of the Criminal Law Ordinance, 1936.
Particulars of the Offence: the Accused, together with others, subjected many millions of Jews to living conditions which were likely to bring about their physical destruction, during the period 1939 to 1945 and to this end operated in Germany and the other countries of the Axis, in the areas of their occupation and also in areas which were in practice subject to their authority. In the said period and by virtue of his functions mentioned in the First Count, and in order to implement "The Final Solution of the Jewish Problem" he acted in the following ways:
1. Enslaving them in forced labour camps
2. Placing and keeping them in ghettos
3. Driving them into transit camps and other places of concentration
4. Their deportation and their mass transportation under inhuman conditions
And all of this was done by the Accused for those same objectives, by the same methods of operation and in the same places as described in the First Count.
b) The Accused carried out these acts with the intention of destroying the Jewish People.
THIRD COUNT
Nature of the Offence: Crime against the Jewish People, an offence against section 1(a)(1) of the Nazis and Nazi Collaborators (Punishment) Law 5710-1950, and section 23 of the Criminal Law Ordinance, 1936.
Particulars of the Offence: a) During the period of Nazi rule, the Accused fulfilled functions in the Security Service of the SS (SD) for dealing with Jews, according to the plan of the Nazi Party (NSDAP). These functions were amalgamated after the outbreak of the Second World War with the functions of the Department in the Gestapo described in the First Count and which was headed by the Accused.
b) Throughout that entire period the Accused, together with others, caused grave harm to millions of Jews, physically and mentally, in Germany and in the other countries of the Axis, in the occupied areas them and also in the areas which in practice were subject to their authority in those countries specified in the First Count.
c) The Accused, together with others, caused this grave harm by means of enslavement, starvation, expulsion and persecution, confinement to ghettos, to transit camps and to concentration camps - all this under conditions intended to humiliate the Jews, to deny their rights as human beings, to oppress and torment them by inhuman suffering and torture.
d) The Accused, together with others, carried out these acts by adopting methods, of which the most important were:
(1) Sudden mass arrests of innocent Jews, without judicial process, and only because of their being Jews, and their torture in concentration camps, such as those at Dachau and Buchenwald;
(2) The organization of mass persecution by means of arrests, cruel beatings, the infliction of serious injury, and torture in concentration camps, of approximately 2,000 Jews of Germany and Austria on the night between the 9th and 10th November 1938;
(3) Organizing operations of social and economic boycott of the Jews and stigmatizing them as a subhuman racial group;
(4) Putting into practice the laws known as "The Nuremberg Laws" for the purpose of depriving millions of Jews in all those countries specified in the First Count of their human rights.
e)The Accused carried out these acts with the intention of destroying the Jewish People.
FOURTH COUNT
Nature of Offence: Crime against the Jewish People, an offence against Section 1(a)(1) of the Nazis and Nazi Collaborators (Punishment) Law, 5710-1950 and Section 23 of the Criminal Law Ordinance, 1936.
Particulars of the Offence: a) Commencing in the year 1942, the Accused, together with others, adopted measures calculated to prevent births amongst the Jews of Germany, and the occupied countries.
b) The adoption of these measures by the Accused in his official capacity as Head of the Department for Jewish Affairs in the Gestapo in Berlin was also intended to advance the "Final Solution of the Jewish Question."
c) Amongst these measures were: (1) Instructions by the Accused to Dr. Eppstein, head of the Council of Elders in the Concentration Camp at Terezin (Theresienstadt) in the years 1943-44, concerning the ban on births in the camp, and concerning the termination of pregnancies by means of artificial abortion in every case and in all stages of pregnancy;
(2) An order of the German police in the Baltic countries in the year 1942 against Jewish women in the Kovno Ghetto forbidding them to give birth and compelling them to undergo operations for abortion in every case of pregnancy;
(3) On 27 October 1942 in the offices of the Accused (RSHA) IVB4 in Berlin, the Accused, together with others, prescribed measures for the sterilization of persons of mixed descent of the first degree of Jews in Germany and in the occupied territories according to the following principles:
(aa) The sterilization would be carried out on the person of the individual of mixed descent, Jew or Jewess, upon their agreeing to this in return for the favour of receiving permission to remain within the borders under the rule of the German Reich;
(bb)The individual of mixed descent would be entitled to choose between sterilization and deportation to the extermination areas in the East;
(cc) The authorities were to suggest to individuals of mixed descent to choose deportation;
(dd) Those choosing deportation would be separated according to their sex in order to prevent any further births;
(ee) The sterilization would be performed privately and secretly.
d) In laying down these measures the Accused intended to destroy the Jewish People.
FIFTH COUNT
Nature of the Offence Crime against humanity, an offence against Section 1(a)(2) of the Nazis and Nazi Collaborators (Punishment) Law 5710-1950, and Section 23 of the Criminal Law Ordinance, 1936.
Particulars of the Offence: The Accused committed acts, during the period between 1939 and 1945, in Germany and the other countries of the Axis, in the occupied territories and also in the areas which were in practice subject to their authority, which are to be defined as crimes against humanity, when, together with others, he caused the murder, extermination, enslavement, starvation and expulsion of the Jewish civilian population in those countries and areas. The Accused committed these acts in the course of fulfilling his functions as specified in the First Count.
SIXTH COUNT
Nature of the Offence: Crime against humanity, an offence against section 1(a)(2) of the Nazis and Nazi Collaborators (Punishment) Law 5710-1950, and Section 23 of the Criminal Law Ordinance, 1936.
Particulars of the Offence: The Accused in committing the acts described in Counts 1 to 5 persecuted Jews on national, racial,religious and political grounds.
SEVENTH COUNT
Nature of the Offence: Crime against humanity, an offence against Section 1(a)(2) of the Nazis and Nazi Collaborators (Punishment) Law 5710-1950, and Section 23 of the Criminal Law Ordinance, 1936.
Particulars of the Offence: a) During the period of Nazi rule in Germany and the other countries of the Axis, in the occupied countries, and also in the areas which were, in practice, subject to their authority, the Accused, together with others, caused the plunder of the property of millions of Jews who were residents of these countries, by means of inhuman coercion, robbery, terror and torture.
b) Amongst the Accused's deeds were:
(1) The establishment, organization, and management of the "Central Office for Jewish Emigration" (Zentralstelle fuer juedische Auswanderung) in Vienna, immediately following the entry of the Nazis into Austria in the month of March 1938 and until the end of the Second World War, by means of which the Accused transferred the property of the Jews of Austria and of the Jewish communities of that state to German control. This property was in part plundered in order to finance the expulsion of the Jews of Austria beyond the country's borders and in part transferred through coercion to the possession of the authorities by means of terror against the owners thereof.
(2) The establishment of the "Central Office for Jewish Emigration" in Prague following the Nazi invasion of Czechoslovakia in the month of March 1939, and its organization and management by the Accused, until the end of the Second World War, according to the model of the Central Office in Vienna. Through this office a "Special Account" was administered as a channel for the transfer of the property of the Jews whom the Accused, together with others, robbed - within Czechoslovakia itself and in other countries.
(3) The establishment of the Central Office for the Emigration of Jews and for Jewish affairs in Germany (Reichszentrale) in Berlin in the year 1939 and its management by the Accused until the end of the Second World War. By means of this Central Office, following the example of the Central Office in Vienna, the Accused, together with others, plundered the property of the Jews of Germany and the property of their communities by the same means and under the same conditions as he laid down in respect of the offices in Vienna and Prague.
(4) By means of collecting forced payments from persons deported from Germany and the occupied territories, the Accused compelled hundreds of thousands of Jews to finance their deportation to the extermination camps and the sites of other concentrations for mass slaughter. To this end the Accused set up the Special Account "W" which was at the exclusive disposal of his Department.
(5) The property of the Jews slain in the countries of German conquest in Eastern Europe was also plundered by their murderers - the men of the SS. For purposes of centralizing the act of robbery, special operations were organized in the years 1942-1943 within the framework of a special campaign for the slaughter of the Jews of Poland, which was known by the description "Reinhardt Action" (Aktion Reinhardt). The person in charge of this special operation was the Senior Commander of the Security Police and the SD for the district of Lublin. During these two years property estimated at a nominal value of 200 million marks, but the actual value of which amounted to several times this sum, was stolen.
(6) During the Second World War and until shortly before its conclusion, freight trains were dispatched to Germany every month from the areas of occupation in the East, containing the movable property of those murdered in the extermination camps, in the concentration sites and in the ghettos. This property also included enormous quantities of parts of the bodies of those done to death such as hair, gold teeth, false teeth, artificial limbs; furthermore, every other personal item was plundered from the bodies of the Jews before and after their extermination.
(7) The Accused, together with others, planned all the operations of comprehensive robbery so that the property of millions of those brought for extermination might be taken from them and brought to Germany. The extent of his success emerges from the fact that, when at the time of their retreat in January 1945, the Germans burned 29 stores of personal effects and articles of value out of 35 such stores established in the extermination camp at Auschwitz, there were found in the stores that were saved from the fire, inter alia:
348,820 men's suits
836,255 women's costumes
38,000 men's shoes.
c) The Accused carried out the said operations until the end of the year 1939 by virtue of his special duties in the Security Service of the SS (SD); and since the end of that year the Accused: merged these duties with his functions in Office IV of the RSHA.
d) The Accused carried out the robbery of the property of the Jews in Germany and in the other territories of occupation, over and above those already mentioned in this count as aforesaid, by means of issuing instructions to the local commanders of the Security Police and to those in the countries of the Axis and the occupied areas, through the foreign representatives of Germany as described in the First Count.
EIGHTH COUNT
Nature of the Offence: War crime, an offence against Section 1(a)(3) of the Nazis and Nazi Collaborators (Punishment) Law 5710-1950 and Section 23 of the Criminal Law Ordinance, 1936.
Particulars of the Offence: The Accused performed acts, during the period of the Second World War, in Germany and in the other countries of the Axis and also in the occupied territories, which are to be defined as war crimes, when, together with others, he caused the persecution, expulsion and murder of the Jewish population of the countries occupied by the Germans and the other countries of the Axis. The Accused committed these acts in the course of fulfilling his functions as specified in the First Count.
NINTH COUNT
Nature of the Offence: Crime against humanity, an offence against Section 1(a)(2) of the Nazis and Nazi Collaborators (Punishment) Law 5710-1950 and Section 23 of the Criminal Law Ordinance, 1936. Particulars of the Offence: The Accused, between the years 1940 and 1942 committed acts in Poland, which at that time was occupied by Germany, which are to be defined as crimes against humanity when, together with others, he caused the deportation of more than half-a-million Polish civilians from their places of residence, with the intention of settling German families in those places. The displaced Poles were transferred, some to Germany and the territories occupied by her for the purpose of employing them and holding them under conditions of servitude, coercion and terror; some were abandoned in other regions of Poland and the German areas of occupation in the East; some were concentrated in labor camps organized by the SS under inhumane conditions; and some were transferred to Germany and were destined for the purpose of "Germanization" (Rueckverdeutschung). The Accused: committed these acts of his by virtue of a special appointment in the month of December 1939, according to which he was empowered by the Chief of the Security Police in Berlin to act as the person responsible for the "evacuation" of the civilian population.
TENTH COUNT
Nature of the Offence: Crime against humanity, an offence against Section 1(a)(2) of the Nazis and Nazi Collaborators (Punishment) Law 5710-1950, and Section 23 of the Criminal Law Ordinance, 1936.
Particulars of the Offence: a) The Accused committed acts in the year 1941 in Yugoslavia in parts then occupied by Germany, which are to be defined as crimes against humanity when, together with others, he caused the deportation of more than fourteen thousand Slovene civilians from their places of residence, with the intention of settling German families in their stead;
b) The deported Slovenes were transferred to the Serbian province of Yugoslavia by methods of coercion and terror, and under inhuman conditions.
c) The planning of these expulsions was effected by the Accused: at a meeting on 6 May 1941 which took place in Marburg (Untersteiermark) and to which the Accused invited representatives of the other authorities dealing with the matter. The expulsion headquarters continued to be located in that city, and acted in accordance with the directives of the Accused. The Accused: committed these acts by virtue of his special appointment as mentioned in the Ninth Count.
ELEVENTH COUNT
Nature of the Offence: Crime against humanity, an offence against Section 1(a)(2) of the Nazis and Nazi Collaborators (Punishment) Law 5710-1950, and Section 23 of the Criminal Law Ordinance, 1936.
Particulars of the Offence: The Accused: committed acts during the period of the Second World War which are to be defined as crimes against humanity in Germany and the occupied territories when, together with others, he caused the deportation from their places of residence of tens of thousands of gypsies, their assembly in places of concentration, and their dispatch to extermination camps in the areas of the German occupation in the East, for the purpose of murdering them. The Accused committed these acts by virtue of his special appointment as mentioned in the Ninth Count.
TWELFTH COUNT
Nature of the Offence: Crime against humanity, an offence against Section 1(a)(2) of the Nazis and Nazi Collaborators (Punishment) Law, 5710-1950, and Section 23 of the Criminal Law Ordinance, 1936.
Particulars of the Offence: In the year 1942 the Accused committed acts which are to be defined as crimes against humanity when, together with others, he caused the deportation of approximately 100 children, residents of the village of Lidice in Czechoslovakia, their transfer to Poland and their murder there. The Accused committed these acts in the course of fulfilling his functions in the Gestapo in Berlin.
THIRTEETH COUNT
Nature of the Offence: Membership of a hostile organization, an offence against Section 3(a) of the Nazis and Nazi Collaborators (Punishment) Law 5710-1950.
Particulars of the Offence: The Accused, during the period of the Nazi rule in Germany, was a member of the organization known by the name of Schutzstaffeln der NSDAP (SS) and during the course of his service in this organization attained the rank of SS Obersturmbannfuehrer. This body was declared as a criminal organization in the judgment of the International Military Tribunal on 1 October 1946 in accordance with Section 9 of the Charter of the Tribunal which was attached to the Agreement of the Four Powers dated 8 August 1945, in regard to the trial of the major war criminals.
FOURTEENTH COUNT
Nature of the Offence: Membership of a hostile organization, an offence against Section 3(a) of the Nazis and Nazi Collaborators (Punishment) Law, 5710-1950.
Particulars of the Offence: During the period of Nazi rule in Germany, the Accused was a member of an organization known by the name Sicherheitsdienst des Reichsfuehrers SS (SD). This body was declared as a criminal organization in the Judgment of the International Military Tribunal on 1 October 1946 in accordance with Section 9 of the Charter of the Tribunal which was attached to the Agreement of the Four Powers dated 8 August 1945 in regard to the trial of the major war criminals.
FIFTEENTH COUNT
Nature of the Offence: Membership of a hostile organization, an offence against Section 3(a) of the Nazis and Nazi Collaborators (Punishment) Law 5710-1950.
Particulars of the Offence: During the period of Nazi rule in Germany, the Accused was a member of the Secret State Police (Geheime Staatspolizei) known as the "Gestapo" and served therein as Head of the Department for Jewish Affairs. This body was declared as a criminal organization in the Judgement of the International Military Tribunal on 1 October 1946 in accordance with Section 9 of the Charter of the Tribunal which was attached to the Agreement of the Four Powers dated 8 August 1945 in regard to the trial of the major war criminals.
Presiding Judge: Did you understand the indictment?
Accused: Yes, certainly.
Dr. Servatius: I request the permission of the Court to allow me to express an objection, before the Accused answers the question whether he admits guilt or not. I have to voice two reservations. They apply to the fear of prejudice on the part of the judges, and to the lack of competence on the part of the Court. I request the Court to examine whether reasons do not exist in consequence of which one of the judges should be disqualified from sitting in judgment, or whether he himself should declare himself to be prejudiced. The removal of one of the judges is likely to arise out of a situation where one of the judges himself or a near relative of his was harmed by the acts brought forward in the charges. An assumption such as this is quite possible. It arises from the fact that the entire Jewish people were drawn into the holocaust of extermination. The question of whether such facts exist here, thus leading to the removal of one of the judges, must be examined by the Court at the outset.
Furthermore, it follows from the nature of the material of the proceedings that the Accused must be apprehensive concerning the prejudice of the judges. It is not that actual prejudice on the part of the judges is the operative issue; according to the idea of the principle of guaranteeing a fair trial, it is sufficient if there is a justified apprehension on the part of the Accused. I do not voice this apprehension against a particular judge on the grounds that he passed sentence or judgment in a previous process concerning the Accused.
I have not managed to determine anything from the point of view of decisions which may be taken into account which is likely to cause concern in regard to the impartiality of a judge in the case which is before us. The fear of prejudice exists, therefore, against all the judges in equal measure. There are reasons which arise in general from the very material of the proceedings. The fear of prejudice is likely to arise from the fact that the general sphere of interests of one of the judges may be affected in a substantial manner. He would not be able to keep his distance sufficiently to be able to make a decision which would not be influenced by the acts about to be considered.
These apprehensions have also found their expression amongst the public. The President of the Supreme Court in Israel, Justice Olshan, commented on this question in one of his judgments. He said the following...
Presiding Judge: What is the number of the judgment, if you could quote it?
Dr. Servatius: I request permission to produce it later - I have not yet managed to ascertain the number of the judgment. He stated the following
"It is not sufficient that defence counsel, prosecutors and judges should be convinced of the personal impartiality and integrity of the judges. If fear should arise publicly for reasons which can be justified on reasonable grounds, that judges may be prejudiced, that would be sufficient to remove judges from the trial."
The public, in the case before us, is the world. The Court has confirmed this in its previous decision regarding approval of television broadcasts to the world public.
Personalities well-known in world public affairs have raised doubts. They have suggested the setting up of a neutral Court, an international Court or a mixed tribunal. This should have been done. The fear of prejudice also arises out of the following matters. Here we are not talking of a regular criminal process in which consideration must be given to acts which were carried out with an individual criminal inclination. We are talking of the consideration of participation in processes which were political processes. These are acts in the prosecution of which the Israeli State and the Jewish people have a political interest.
To this must be added the influence of the world political press, which has already condemned the Accused: without hearing him. This political interest which is the motivating cause of this trial, is capable of having substantial influence on the judges. The Government has the right to be partial for the sake of its people - it is permitted to be biased. The representation of this right is the right of the prosecutor. But the judges have to test whether they are able to raise themselves, without being influenced, above the material of the trial; they have to examine whether the Accused should not, justifiably, have to be without any concern regarding prejudice on the part of the Court. The absence of any connection with the matter on the part of the Court is the foundation for the subsequent recognition awarded to the judgment.
My second objection refers to the lack of competence of the Court. I propose that the Court adjudge itself as not being competent to consider and to decide on the present indictment. The lack of competence arises from the following points:
Firstly because the law for punishing Nazis and their collaborators contravenes the Law of Nations.
Secondly because the Accused was seized forcibly and kidnapped and brought before the Court.
The law for punishing Nazis and their collaborators of 10 August 1950 seeks to provide punishment in regard to persons and acts before the existence of the State of Israel, outside the present boundaries of the State, which wronged persons who were not residents of the State of Israel.
The Law of Nations does not recognize the exercise of political sovereignty by the dispensing of justice in the present case. The dispensing of justice to a foreign subject, as is being claimed here, would not be recognized by the territorial principle, nor the protective principle or the personal principle, nor the principle of international justice.
These basic principles of the Law of Nations constitute the very essence of our experience. These principles constitute a guarantee for international living as a community and they must be protected. In these general principles one does not have to enter into argumentation about legal niceties, as the case before us will show. In practice you are restricting the Accused's defence. It is not economically possible for him to produce witnesses before the court. He cannot compel them to appear, and the witnesses, who themselves were officers of the SS, are also obviously afraid for their liberty. They are obviously concerned for their safety, should they appear in Israel before this Court.
Undoubtedly the State of Israel recognizes the principles of these basic rules of the Law of Nations. But evidently it is presumed that special circumstances create the right to deviating legislation, constituting an exception to the rule. The Law for punishing Nazis and their collaborators is, indeed, an exception, like the London Agreement which constitutes the basis of judical authority for the International Military Tribunal in Nuremberg.
There is room for an exceptional law under special emergency conditions. An exceptional law can also be a just law if it has a just purpose. The purpose of the exceptional law, which is before us, is punishment; its punitive purpose is the defence of the State itself and of the citizens of the punishing State themselves. This defence is attained by deterring the perpetrator and by the deterrence of other potential perpetrators. The punishment which may be expected here according to the law cannot serve any of the aforementioned objects.
There looms before us the question of retribution. The State of Israel itself has understandably rejected the idea of retribution. The Minister for Foreign Affairs, Mrs. Golda Meir, did so at a session of the Security Council of the United Nations Organization on 22 June 1960. This is what she said of the Eichmann Affair. I quote her words: "This is not a matter of revenge. The Hebrew poet Bialik says: Revenge for a small child - the devil has not yet devised."
But as against this there stands the principle of atonement, and this has justification, but for such a purpose an exceptional law is not required since for the idea of atonement there exists the dispensation of justice before a competent judge. A legal process is ensured in Germany, and on the basis of the London Agreement, a legal process is also ensured at each and every place where the crimes were committed. Although the Government of the Federal Republic of Germany has not yet, in fact, submitted any application for extradition, nevertheless Attorney General: Bauer of the State of Hessen and the Defence have already suggested this to the Federal Government.
If there is a demand here for retribution, how will there be retribution? The Accused cannot make atonement for the death of a large portion of a people. Nor can atonement be imposed on the Accused: for the acts of his State. If there is room here for moral expiation, let the State which acted through the Accused: make atonement. The State was involved in what was done, and it has to bear the responsibility for the consequences from the moral point of view.
There is here the imposition of culpability without wrongdoing, since the Accused: here, in fact, has to pay the penalty without culpability for processes into which he was drawn by the State.
The Federal Republic of Germany has taken upon itself this moral responsibility. Reparations are being made for the measures which were taken by the former institutions of the State and burdens have been assumed for assistance to the State of Israel which is a development consequent upon the processes of persecution. Different from this was the Judgment of the International Tribunal at Nuremberg. It dealt only with the leading personalities. The decision was taken close to the end of the War. The leading personalities made retribution for their administration and its deeds.
The Accused here does not belong to the group of leading personalities and it is impossible to measure him by the same yardstick. World public opinion judges blindly and much too hastily, but the writers who are responsible for that do not constitute a Court.
My objection, therefore, rests on the fact that it is possible to take exception to the Nazis and Nazi Collaborators (Punishment) Law. This law is one which was enacted ex post facto and hence does not have legal effect. I do not want to take a detailed stand on this matter which has already been dealt with more than sufficiently. I ask the Court to admit this summary of the legal arguments. I have already handed a copy of my remarks to my colleague, the Attorney General.
Presiding Judge: Do you wish to submit this now?
Dr. Servatius: Yes
Presiding Judge: Mr. Hausner, you have no objection to this?
Attorney General: No, I have just now received a copy - during this morning's session.
Presiding Judge: Do you perhaps have two more copies for the other judges?
Dr. Servatius: I only had a few copies. I shall prepare some more.
Presiding Judge: I would ask you to submit this as soon as possible.
Dr. Servatius: We shall do this immediately.{The written submissions of the defence appear at the end of Session 1.} The summaries contain particulars of two points: the right of jurisdiction which the State maintains - that is one point, and the question of retroactive legislation - that is the second point.
Presiding Judge: You are now raising a new point.
Dr. Servatius: Yes.
Presiding Judge: At this time we shall have an interval for about a quarter of an hour.
Dr. Servatius: As I have said, the absence of competence for this Court also arises for reasons of procedure. The kidnapping of the Accused and his arraignment before this Court cannot serve as the basis of the Court's competence. The Accused, after being kidnapped, signed a statement in terms of which he accepted for himself, of his own good will, the competence of the Israel Court, and this is the text of the statement:
"I, the undersigned, Adolf Eichmann, hereby declare, of my own free will: In view of the fact that my true identity is now known, it is clear to me that there is no purpose in my attempting to continue escaping justice. I hereby declare my readiness to travel to Israel in order to stand trial there before a competent court. It is obviously clear that I shall obtain legal aid, and that I shall try to put down in writing the facts of the last years of my activity, my public activity in Germany, without colouring or glossing over, in order that coming generations may receive a true picture. I made this declaration of my own free will. I have not been promised anything, nor have I been threatened. My aim is ultimately to achieve inner tranquillity. Seeing that I can no longer remember every one of the details and I may be exchanging one thing for another and confusing matters - I therefore request that I should be assisted by placing at my disposal references and statements to help me in my attempts and my efforts to arrive at the truth.
(Signed) Adolf Eichmann, Buenos Aires, May 1960."
There is no need to speak at length and to say that this declaration to appear willingly before a Court in Israel was given under pressure. I request for myself the right to produce proof, when it should be necessary, the object of which would be to establish that this declaration and this letter were signed under pressure and threats. If so, this declaration would be null and void and the Court would not be able to base its competence thereon. A man who hid himself for fifteen years, in order that he should not appear before a Court, does not suddenly ask nor is he willing to appear before a Court; and he will certainly not wish to appear before a Court and be judged by it, in that country in which are to be found the people who suffered from him more than others, and of whom he would be exceedingly afraid.
There are of course, precedents in the records of courts of law, judgments pronounced throughout the world, in one country or another, during the last 150 years. From these precedents the impression could have supposedly arisen of the possibility of legal proceedings despite the kidnapping of the Accused. But the most meticulous examination would prove that such precedents are not to be relied on. And here I shall not go into detail now. I merely wish to point out the following: In these cases the judges used to close their eyes and disregard the actual kidnapping of the Accused: and pronounced that they were concerned solely with the legal proceeding begun before them and these proceedings would be according to their usage and procedure. Such courts refuse to express an opinion on the act of violence preceding the case. On the actions of such judges Heinrich Heine observes in his English Fragments:
"Let the jurists turn the meat for roasting this way and that until it will appear to them to be properly roasted."
These precedents should no be brought up here and they do not apply to this case; for the kidnapping process here was absolutely different.
It appears from political literature on the Eichmann episode and arising therefrom that the Accused: was kidnapped on the orders of the Israel Government itself, and on its orders he was brought to Israel for trial. If this is the case, then the Government acted against the law of Nations and this Court cannot approve this and give validity to this action. To verify the fact that the kidnapping of the Accused: from Argentina was ordered by the State authority, I begin with the submission of evidence, and I repeat my suggestion which I have already proposed in writing.
I wish to hear the witnesses: Firstly Mr. Zvi Tohar, of 3 Yiftah St., Ramat Gan; secondly Mr. Jack Shimoni, of Ramat Gan, who is employed by the El-Al company. The previous name of the witness was Jack van Koperdan. Witness No.1, together with others, kidnapped the Accused: on 22 May 1960 in Buenos Aires. He deprived him of his freedom and brought him to the State of Israel.
I amend that: the kidnapping was on the 11th May. Witness No. 2 was the pilot or the captain of the aircraft of the El-Al company in which the Accused: was transferred from Buenos Aires to the State of Israel. The witness will be able to prove that the kidnapping of the Accused: Adolf Eichmann from Argentina was carried out by the official order of the Government of the State of Israel. These testimonies are important in view of the argument against the Court's competence which I submit as Defence Counsel. This concludes my remarks.
Presiding Judge: Please, Mr. Hausner.
Attorney General: With the Court's permission, the question of the arrest of Adolf Eichmann and his transfer to Israel came up for consideration before the highest executive body of organized mankind, the Security Council of the United Nations, and in its Resolution of 23 June 1960, the Security Council determined inter alia, saying...
Presiding Judge: Will you please give us the text?
Attorney General: Yes.
"Mindful of the universal condemnation of the persecution of the Jews under the Nazis and of the concern of people in all countries that Eichmann should be brought to appropriate justice for the crimes of which he is accused, noting at the same time that this resolution should in no way be interpreted as condoning the odious crimes of which Eichmann is accused..."
I submit here a certificate of a public official containing the text of the resolution of the Security Council. Presiding Judge: I mark this T/1.
Attorney General: The Security Council did not thereby determine that Eichmann was guilty. The proof of his guilt for the "odious crimes" falls upon me and my colleagues, and I take this burden upon myself. But the Security Council decided that Eichmann should stand trial. For a long time it has been laid down, Your Honours, as far back as in the judgment of the International Military Tribunal at Nuremberg, where Eichmann was not accused, and where accordingly the findings in the matter must not be regarded as a decision affecting him, his name was twice connected with the persecution of the Jews and their extermination.
And I do not quote this so that the matter can serve as evidence before you. I have already taken upon myself the burden of proof. But I quote this in justification for the fact that the conscience of the world has been demanding for fifteen years now that this man be brought to trial. The International Military Tribunal determined (I read from the official Judgment - International Military Tribunal, in the first Volume, at the foot of page 252).
"Adolf Eichmann, who had been put in charge of this program by Hitler, has estimated that the policy pursued resulted in the killing of six million Jews, of which four million were killed in the extermination institutions."
And on page 250 (at the top) it says:
"This 'final solution' meant the extermination of the Jews, which early in 1939 Hitler had threatened would be one of the consequences of an outbreak of war, and a special section in the Gestapo under Adolf Eichmann, as head of Section B 4 of the Gestapo, was formed to carry out the policy."
The Nuremberg Trial determined the indictment, Your Honours. The Security Council repeated it. The Family of Nations decided that Adolf Eichmann must bear the responsibility for his crimes, and he stands trial before you today. There is not one country which has declared that it desires, or is ready, to judge him, and there is no conflict of competence at all between the State of Israel and any other State in regard to trying Adolf Eichmann. Defence Council has mentioned here that he has submitted an application to the Government of the Federal Republic of Germany.
Presiding Judge: I think the interpreters require that from time to time you should pause after a few sentences.
Attorney General: Certainly. Defence Counsel declared here that he had approached his Government in order that it should request the extradiction of Adolf Eichmann, so as to bring him to trial in Germany. I state on behalf of the Government that no such request has reached the Government of Israel, and that at the present time when the Accused: stands trial before you, there is no one demanding to try him apart from the State of Israel.
Before I deal seriatim with the arguments of Defence Counsel, I wish to reply shortly to his first contention, which is in fact a general disqualification of any Jewish Judge, not only Israeli, to judge the man who is Accused: of the attempt to destroy his people. The argument is as follows: Since you have been the victims, since you have been afflicted, possibly members of your families were harmed - for this reason you Jews must not judge Adolf Eichmann; let others who were not affected judge him, let neutral persons judge him.
Perhaps, instead of replying to this argument in my words, it may suffice to quote a well- known authority, in an article by Professor Goodheart, a Professor at Oxford University, in the April 1946 issue of the Juridical Review entitled "The Legality of the Nuremberg Trials (by A.L. Goodheart):
"It has been argued that the Tribunal cannot be regarded as a court in the true sense" -(The reference is to that tribunal of the four occupying Powers which tried the major war criminals at Nuremberg)- "because, as its members represent the victorious Allied Nations, they must lack that impartiality which is an essential in all judicial procedure. According to this view only a court consisting of neutrals, or, at least, containing some neutral judges, could be considered to be a proper tribunal.
As no man can be a judge in his own case, so no allied tribunal can be a judge in a case in which members of the enemy government or forces are on trial. Attractive as this argument may sound in theory, it ignores the fact that it runs counter to the administration of law in every country. If it were true then no spy could be given a legal trial, because his case is always heard by judges representing the enemy country. Yet no one has ever argued that in such cases it was necessary to call on neutral judges. The prisoner has the right to demand that his judges shall be fair, but not that they shall be neutral. As Lord Writ has pointed out, the same principle is applicable to ordinary criminal law because 'a burglar cannot complain that he is being tried by a jury of honest citizens. "There are three grounds on which one can with confidence assert that the Tribunal satisfied the essential elements of fairness. The first is found in the character of its judges. Although the court is described as being 'The International Military Tribunal,' its members are not professional soldiers but legal experts who have been trained in the evaluation of evidence. It was at one time suggested that they should be given the rank of Major General for the purpose of the trial, but it was decided that it was not desirable to disguise their essential legal character.
The second reason is that the trials are being conducted in the full glare of world publicity. In such circumstances it would be almost impossible for a tribunal to act in an obviously unfair manner. It is worth remembering that at the Reichstag trials in 1933, even a court composed of subservient Nazi judges was forced to acquit Dimitroff because it had become obvious that he was not guilty.
The third reason is that Article 26 of the Charter provides that 'the judgment of the Tribunal as to the guilt or the innocence of any Defendant shall give the reasons on which it is based.' This provision, which is far stricter than the practice followed in the ordinary national courts where a simple verdict of guilty is sufficient, is the strongest guarantee of fairness, because the judges in such circumstances must realize that their judgments will be subject to public scrutiny both now and in the future. The first essential of a large trial is therefore satisfied by the character of the Nuremberg judges and by the conditions under which they function."
Thus far from the remarks of Professor Goodheart. And if the remarks were valid there, they are all the more valid here, Your Honours. A person cannot demand from you that you should be neutral in regard to the crime of genocide. And if Defence Counsel thinks that there is any man in the world who can be neutral in respect to to this crime, such a judge would be the one who is not competent.
But it is possible to be just, even with such a grave crime. It is possible to have a fair trial even when the judges are required to suppress within their hearts their personal or national anguish, and to judge according to the evidence which is before them. And only in this way do I ask you, Your Honours, to judge.
Defence Counsel has mentioned a judgment of our Supreme Court. During the recess I tried to find out to which of the two he was referring. Since the sentence quoted was evidently not in a judgment of the present President of the Supreme Court, but of its previous President. It seems to me, if I am not mistaken, that Defence Counsel is referring to a decision in Various Applications 3/50 which was published in the Judgments of the Supreme Court, Vol. 4, on page 592 where the Accused: sought to disqualify the judge on the ground that on a previous occasion he had not behaved properly in front of the same judge and he was afraid that the judge would be prejudiced against him, the accused.
Presiding Judge: Is that the Weinberg case?
Attorney General: Yes. The second case to which I thought the Defence Counsel might possibly be referring by quoting an extract, is the case of Trilfus vs. the Attorney General, Criminal Appeal 152/51 - Judgments Vol. 6, page 17, in which our Court also laid down the principle that justice must not only be done but must be seen to be done, and the facts are well-known. The application was a claim for disqualification against a particular judge for a particular act.
Presiding Judge: Mr. Hausner and Dr. Servatius - you will find judgment given on the same point by our Supreme Court a few days ago, Gil Halls vs. the Appeals Committee for Business Tax in Tel Aviv. It would be worthwhile for you to study this judgment as well.
Attorney General: Thank you, Your Honour. I must admit that a few days ago I was more involved in the preparation for this case than in studying judgments. At any rate these arguments that were mentioned here do not have any validity in disqualifying judges on the ground of their national affiliation, which is the contention of Defence Counsel. I ask you not to accept it. If I succeed in replying to the other arguments about competence, and I hope I shall succeed, there is nothing wrong in the fact that a Jewish judge, an Israeli, should judge the oppressor of his people. On the contrary, we can be thankful for the fact that there is some place in the world, where Jews possess sovereignty, courts, prosecuting machinery and the ability to place on trial a man who committed crimes against this people. As I shall show the Court, a tradition has developed in England and also in the United States according to which the manner of bringing the Accused: into the area of jurisdiction is not relevant to the question of competence. A violation of the sovereignty of a state by an act of incarceration, arrest within its borders and the removal of a person outside its territory can become an issue between states. And indeed they did serve as the subject of a controversy between the State of Israel and the Government of Argentina in the matter we are discussing.
But in all the authorities I shall quote forthwith it is laid down that it is not the concern of the Accused: to complain about violation of the sovereignty of another state. It is the concern of the state affected. From the point of view of the Court before which a person is brought in accordance with an indictment, the question of competence can arise in consequence of the substantive law of the country of the trial, or in consequence of procedural practices.
Adolf Eichmann has been charged according to valid substantive law and I shall deal later on with the objections of Defence Counsel to the validity of the law- while Section 4 of the criminal Procedure (Trial upon Information) Ordinance, establishes the competence of the District Court of Jerusalem.
From the point of view of the external circumstances, the question can obviously arise: was the Accused: promised suitable possibilities for defence? The Court sees here a defending counsel who was chosen by the Accused: himself to defend him. In order to enable him, the Defence Counsel, to appear here this morning, the Knesset had to amend the Advocates Ordinance of the State of Israel. And it may be assumed that the Court will be punctilious that all the other measures which our legal system insists on be strictly observed, in order to safeguard a fair trial.
Before analysing the authorities I should like to say only one thing about that letter the content of which Defence Counsel read, signed as he says under coercion and pressure. It is not the signature of Adolf Eichmann on that letter which assigns to an Israeli court the authority to try him. I am merely surprised why that letter was so completely invalid for all possible purposes, but was perfectly valid for Dr. Servatius to rely upon on 22 December 1960 when he applied to the Minister of Justice to grant his request that the State of Israel should bear the costs of the defence.
Presiding Judge: I do not understand this argument, Mr. Hausner.
Attorney General: I do not understand why this letter has been mentioned at all. I do not base the competence of the court on the letter, but I fail to see the possibility of saying: This letter is void from Eichmann's point of view, but it is binding on you, as the Defence Counsel wrote.
Presiding Judge: This letter is not before us.
Attorney General: I am ready to submit the letter from Dr. Servatius to the Minister of Justice. It says in the paragraph referred to, as follows:
"Hierzu verweise ich auf die Erklaerung, die Adolph Eichmann im Mai 1960 anlaesslich seiner Festnahme in Argentinien unterzeichnet hat. In dieser ihm vorgelegten Erklaerung erwartet er die Gestellung eines Rechtsbeistandes und hat sich daher bereit erklaert, nach Israel zu kommen, um dort vor ein zustaendiges Gericht gestellt zu werden."
Dr. Servatius, inter alia, submitted his request to the State of Israel concerning the defence costs, and this was granted.
Presiding Judge: Are you submitting the letter? Do you have a Hebrew translation of the letter?
Attorney General: No, your Honour. I only thought of submitting it this morning.
Presiding Judge: Please translate it. Let the interpreter see what you quoted, and which paragraph, so that he may translate the part which is relevant for you.
Interpreter: "I hereby refer to the statement signed by Adolf Eichmann in May 1960 when he was detained in Argentina. In this statement which was submitted to him he expected to be given legal aid, and because of this he expressed his readiness to come to Israel to appear there before a competent Court."
Judge Halevi: Where is the Accused's letter of the month of May?
Attorney General: I shall produce it immediately. This is the original letter. It was correctly read out by Defence Counsel.
Presiding Judge: I mark the letter which you submitted this morning T/2 - the Defence Counsel's letter dated 22 December 1960. Are you submitting this letter too?
Attorney General: I was requested by Judge Halevi to submit it and I do so submit it.
Presiding Judge: I mark the letter T/3.
Judge Halevi: Do you, Sir, maintain that the letter of May 1960 was signed by the Accused: of his own good will?
Attorney General: Your Honour, I say as I shall argue forthwith, that there is no practical difference whether it was signed of his own good will or not. This letter does not have any value from the point of view of providing a ground for competence, and I would not have mentioned it at all and I had no intention of relying on it, had it not been for the remarks made this morning concerning this matter. This question does not strengthen or weaken the case at all.
Judge Halevi: Then the two letters are not relevant in practice.
Attorney General: In practice they are not relevant.
Presiding Judge: You say: There is no practical difference whether this statement was made...
Attorney General: Freely or under compulsion.
Dr. Servatius: I request the Court that Document No 3 as you designated it...
Presiding Judge: Document T/2. Dr. Servatius...In view of the fact that the Prosecution itself has stated that it does not strengthen or weaken the case, should be declared as irrelevant.
Attorney General: I shall not rely on this letter, not on the first nor on the second.
Judge Halevi: Perhaps it is possible to ask Dr. Servatius if he relies on the letter of his client of May 1960 - perhaps that one can also be eliminated?
Dr. Servatius: I refer to the letter which Adolf Eichmann wrote himself, which is Exhibit No 3.
Presiding Judge: I understood previously that you were referring to the letter which you yourself wrote and that is T/2. Evidently this is my mistake.
Judge Halevi: You, Sir, have asked us to eliminate the letter of Adolf Eichmann, to remove the letter of the Accused: from our deliberation. Is that correct? Or is it the letter that you wrote to the Minister of Justice, or both?
Dr. Servatius: I wish to declare as irrelevant only the letter which I, Defence Counsel, wrote to the Minister of Justice, and not the letter which Eichmann himself wrote, which in my opinion is relevant.
Presiding Judge: We are talking of letter T/2 - that is final.
Judge Halevi: Why, in your opinion, Dr. Servatius, is the Accused's letter relevant?
Presiding Judge: If you have anything to add to the matter of these two letters which arises here, please continue.
Dr. Servatius: I will say this briefly: Only the letter of Adolf Eichmann himself is relevant in relation to the decision of the trial itself, and it does not add or subtract whether the Attorney General: decides that it is relevant or not.
Attorney General: May I be permitted to continue, your Honour?
Presiding Judge: Please do.
Attorney General: Your Honours, I mentioned and submitted Dr. Servatius' letter only because I do not want a double standard approach. He cannot ascribe on the one hand, as he says, to official representatives of the State of Israel an act of coercion in the signing of a letter and on the other hand rely on that selfsame letter for the sake of any object required by him. This cannot be. Either the letter is entirely invalid, and then it is invalid for any purpose, whatsoever, or it is entirely valid and then it is valid for every purpose whatsoever. But it is not possible to disqualify it for one purpose and validate it for another purpose. And to this I objected. I objected to the nature of the argument.
Presiding Judge: All right - perhaps you will not prolong this discussion.
Attorney General: I shall not prolong the discussion on this. And, with the Court's permission I should like to pass to an analysis of the authorities.
Presiding Judge: Please be seated while we record a decision in this matter.
Dr. Servatius: May I say something?
Presiding Judge: Please tell him that the normal practice is that whoever objects, objects. Thereafter his colleague replies to him, and with the special permission of the Court the objector can argue once again. But there must be an end to the debate. This time I shall still allow him to make his observation.
Dr. Servatius: In this document there are two different things: one - the agreement of the person under compulsion; two - the promise of an authorized person, one who possesses authority; and this promise must be kept.
Presiding Judge: I understand, therefore, that your argument is that the portion referring to the promise is permitted, and the other portion is invalid. Is this your contention?
Dr. Servatius: Yes, certainly.
Presiding Judge: Dr. Servatius, I am sorry. It is necessary to turn to you again. I understand that these last remarks in your argument referred to your letter dated 22 December and not to the Accused's statement. With regard to this letter of 22 December you said that part of it is valid and part is invalid. Did I understand you correctly or does it refer to Exhibit T/3 - the statement of the Accused himself.
Dr.Servatius: I suppose I did not express myself properly. My letter, signed by me, T/2, is proper in all its parts and I am not challenging it. I only replied to the Prosecutor's argument that any demand was based on the promise that was included in Eichmann's letter which, I say, was dictated to him.
Presiding Judge: Decision No. 1. We accept letter T/2 as an exhibit without expressing an opinion as to its value as proof. I would like to explain to you, Dr. Servatius, that in future, if you wish to object to the submission of a document, you must state your objection before the document is marked by the Court, otherwise you will be too late.
Dr. Servatius: Yes, certainly. I have understood this.
Attorney General: Before I proceed to an analysis of the authorities, I should like to deal with one problem which Defence Counsel raised this morning, namely the difficulties in preparing the defence of the Accused: in view of the fact that the trial is being held in Israel. And here he is unable - as he argues - to bring witnesses; some fear for their personal safety while for others there is no one to pay the expenses of their journey and their stay in Israel. Already in preliminary contacts with the Defence I informed them that I would support an application on which, of course, only the Court could decide, that affidavits could be submitted as evidence. And if Defence Counsel has people who are ready to give testimony that contains something in favour of his client, I will not bar the way even though I would be deprived of the right of cross-examination. I would agree to the submission as to their relevance. But I am ready to take a further step forward.
Judge Halevi: Pardon me, Sir. You say that generally speaking you would be prepared to accept affidavits of overseas witnesses, of witnesses for the defence, I understand, and in this way waive your right of cross- examination.
Attoney General: The stand I am taking is not such a general one. If Defence Counsel convinces us that there is, in fact, a witness who is able to describe matters which are relevant to the defence and there is no possibility of bringing him to Israel, as he himself is likely to be placed on trial here because of offences which he himself committed or because the defence does not have the financial means for this, I am ready to discuss each individual case and if I am convinced that it is right and just that the affidavit should be submitted to the Court, I will support the application that such an affidavit should be submitted to the Court.
Judge Halevi: I understand. But the difficulty will remain in certain instances. How can the Court depend on the credibility of the witness, if there will be no cross- examination. Possibly you will in this way be waiving or be forced to waive a cross-examination. Generally speaking in a case where a trial is being conducted with witnesses testifying before the Court - the waiver of cross- examination by the opposite side is considered in most instances tantamount to absence of any dispute in regard to the witness' reliability. Here it will be impossible to come to such a conclusion. If we do not arrive at this conclusion, how can a judge distinguish between reliable evidence and unreliable evidence?
Presiding Judge: Perhaps it is still premature to deal with this question at this stage.
Attorney General: If the Court wishes to have my reply, I will naturally give it.
Presiding Judge: When a concrete case arises we shall go into the matter.
Attorney General: As the Court decides.
Presiding Judge: This is not a decision - this is a suggestion.
Judge Halevi: I see the relevance at this stage in that the Attorney General: wishes to reply to the argument that there can be no fair trial owing to the lack of the possibility of bringing defence witnesses here from abroad. The answer is that there is a good alternative for this and that is an affidavit. My question is: the alternative is not such a good one, since it does not allow the Court to differentiate between truthful evidence and false evidence. In this way we may be inundated with thousands of false testimonies.
Attorney General: May it please the Court. I am not afraid of an inundation since the Court will have ample material after we conclude our case, to be able to judge what is true and what is false and will itself be able to sort the wheat from the chaff in the light of other evidence which I hope will be credible. In any case we are dealing with a law containing special provisions concerning the rules of evidence. And I visualize that one of the difficulties in this case is the material concerning which a decision must be taken from the point of view of the rules of evidence. And, therefore, I would not be so concerned. But I am ready to take this one step further.
And if the argument of Defence Counsel is that these people are not willing to volunteer of their own good will to give him affidavits and I cannot force them to give affidavits - however if this case were in Germany then I would, with the authority of the Court, summon them and they would be obliged to appear and give evidence, whereas I cannot force them to make affidavits before a notary or before a consul.
If this is the argument, then I declare here that I would be ready, in an appropriate case and after being convinced that it is desirable to do so, to make use for this purpose of the arrangements for legal assistance existing between the State of Israel and the Federal Republic, in order that persons who have something to say should appear before a Judge in Germany. There they will be examined before representatives of both sides - there there would be cross-examination; there their statements would be examined from the point of view of truthfulness.
And I would ask this Court - or more correctly I would associate myself with the application of Defence Counsel, since he is interested in this - to submit this material as evidence in this case. I think in so doing I have gone to the limit of my ability to promise Defence Counsel that all relevant evidence, if he has such, can be brought before this Court. Despite this I have not, to this day, received from Defence Counsel any notification whatsoever concerning the bringing of a particular witness who fears for his personal safetly or his indictment in the State of Israel.
And now, with the Court's permission, in the time remaining for me, I shall touch upon the legal problems arising out of the question of the detention and transfer of a person to another jurisdiction. My argument is that where a person is legally Accused of committing a crime and he is legally kept under arrest at the time when he is brought before the Court and stands his trial, the Court should not examine the circumstances which led to the fact that the Accused: is brought before the Court. In other words - the circumstances of the Accused's detention, his seizure and his transfer are not relevant for competence and they contain nothing which can affect this competence, and since they are not relevant, they should not be considered and evidence concerning them should not be heard.
This rule has been written into the statue books of countries observing the rule of law since the judgment in Ex parte Scott, reported in Vol. 109 of the "English Reports," on page 166. And these were the facts: An indictment for perjury was preferred in England against a woman named Susanna Scott. A warrant for arrest was issued against her. With the Court's permission I shall read the remaining facts from the judgment itself appearing in the Report:
"It appeared by the affidavits that a bill of indictment for perjury had been found against her, and on the 11 February, Lord Tenterden C.J. granted a warrant for her apprehension, in order that she might appear and plead to the indictment, and C. Ruthven, a police officer, to whom the warrant was specially directed, apprehended Scott in Brussels; she applied to the English Ambassador there for assistance but he refused to interfere, and Ruthven conveyed her to Ostend, and thence to England, and on the 9th of April, she was brought before Lord Tenterden, and by him committed to the K.B. Prison. A bill was found against the prisoner for a misdemeanour; there is no doubt that she is now rightfully in custody for want of bail. And when a party is liable to be detained on a criminal charge, the Court will not inquire into the manner in which the caption was effected."
On the following page Lord Tenterden says:
"The question, therefore, is this, whether if a person is charged with a crime is found in this country, it is the duty of the Court to take care that such a party shall be amenable to justice, or whether we are to consider the circumstances under which she was brought here. I thought and still continue to think, that we cannot inquire into them. If the act complained of were done against the law of a foreign country that country might have vindicated its own law. If it gave her a right of action, she may sue upon it."
; The same problem was considered in England 120 years later. And I read from the judgment in R.v.O/C Depot Battalion P.A.S.C. Colchester. Ex parte Elliott (1949) 1, "All England Reports," page 373. This was a case of a British deserter who was arrested by British officers in Antwerp two years after his desertion and who was brought to England. He obtained a decree nisi on the basis of the argument that he was held under arrest illegally owing to the fact that he was brought from Belgium against his will and under coercion. I quote from the judgment of Lord Goddard on page 376.
"On the applicant's part two points have been taken. It is said that his arrest was illegal because (i) the British authorities had no authority to arrest him in Belgium and he was arrested contrary to Belgian Law, and (ii) his arrest was not in compliance with the provisions of s. 154 of the Army Act. The point with regard to the arrest in Belgium is entirely false. If a person is arrested abroad and he is brought before a court in this country charged with an offence which that court has jurisdiction to hear, it is no answer for him to say, he being then in lawful custody in this country: 'I was arrested contrary to the laws of the State of A or the State of B where I was actually arrested.' He is in custody before the court which has jurisdiction to try him. What is it suggested that the court can do? The court cannot dismiss the charge at once without its being heard. He is charged with an offence against English law, the law applicable to the case. If he has been arrested in a foreign country and detained improperly from the time that he was first arrested until the time he lands in this country, he may have a remedy against the person who arrested and detained him, but that does not entitle him to be discharged, though it may influence the court if they think there was something irregular or improper in the arrest. Once he is before the court, it can hold him to bail until his trial and conviction."
That is to say, the question of the kidnapping is likely to have an effect, possibly on release on bail. After quoting Ex parte Scott with approval, the Court analyses the Scottish decision and states the following at the end of page 377:
"That, again, is a perfectly clear and unambiguous statement of the law administered in Scotland. It shows that the law of both countries is exactly the same on this point and that we have no power to go into the question, once a prisoner is in lawful custody in this country, of the circumstances in which he may have been brought here. The circumstances in which the applicant may bave been arrested in Belgium are no concern of this court."
The Supreme Court of Palestine in the days of the Mandate followed the English and American practice and laid down the same principle in Criminal Appeal 14/42, Afuna vs Attorney General: ("The Law Reports of Palestine" Vol. 9/1942), page 63). Here it was established that a man fled to Syria after being suspected of committing murder. He was arrested in Damascus by a British sergeant and brought to this country for trial. He argued that his arrest had been illegal and accordingly he should be released. The Supreme Court did not accept this argument. I read from page 66:
"Counsel on neither side was able to refer us to any direct authority covering a case, such as the present, where a person has been irregularly apprehended not as a result of extradition proceeding at all."
I quote the American report from the judgment of the Mandatory Court:
"In our opinion, the law is correctly stated in volume 4 of Moore's Digest of International Law, at page 311.
1) The authority cited is an American (State) case which, of course, is not binding on this Court. Nevertheless we adopt the language used, which is as follows -'where a fugitive is brought back by kidnapping, or by other irregular means, and not under an extradition treaty, he cannot, although an extradition treaty exists between the two countries, set up in answer to the indictment the unlawful manner in which he was brought within the jurisdiction of the court. It belongs exclusively to the government from whose territory he was wrongfully taken to complain of the violation of its rights.'"
And the Mandatory court goes on to say:
"Accepting that view of the law we think that there is no substance in the extradition point."
In the United States of America there are special constitutional guarantees for protecting the rights of the individual. As it is a federation of states, it is very sensitive to the problem of the competence of the central Government and of the competence of the states comprising the United States of America as between themselves and of the relations between the United States and foreign countries. Furthermore: American courts have laid down that public international law is part of the internal law of the United States, and it applies to the relations of the United States with foreign countries and to the relation of the states with one another. The Court will see this practice in "American Jurisprudence" vol 30, pages 440-441.
"Unless there is some treaty or statute to the contrary, the law of nations is to be treated as part of the law of the land. The courts of all nations judicially notice this law, and it must be ascertained and administered by the courts of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. Occasionally the statutes conferring jurisdiction to hear and determine particular controversies require the courts to render their decisions in accordance with the rules of international law. It has been held that an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains. When the United States declared their independence, they were bound to receive the law of nations in its modern state of purity and refinement. International law forms a part of the law of the several states. It is a part of the law of every state which is enforced by its courts without any constitutional or statutory act or incorporation by reference, and while a court may be without jurisdiction to enforce international law in a given case by reason of some controlling statute, nevertheless, relevant provisions of the law of nations are legally paramount whenever international rights and duties are involved before the court having jurisdiction to enforce them."
And in that country, where such is its relationship to international law, a general practice has been established the contents of which I shall read from Corpus Juris Secundum and thereafter I shall examine it for details.
Presiding Judge: Perhaps you would quote the extract from Corpus Juris Secundum and with this we shall conclude the morning session.
Attorney General: I quote from Criminal Law, vol 22, page 236, paragraph 144 in which the practice was defined in the following terms:
"144. ARREST AND CUSTODY
Custody of the Accused: by the court, or his presence therein on a proper charge, is essential to the jurisdiction of the court over him. The manner in which the Accused: is brought before the court, however,is ordinarily immaterial in so far as jurisdiction over him is concerned."
And on page 242, in paragraph 146:
"In accord with the general rule stated in paragraph 144 supra, to the effect that a court will not inquire into the manner in which the Accused: is brought before it, the fact that Accused: has been illegally arrested, or that he has by trickery, force, or without legal authority, or by any illegal means, been brought within the territorial jurisdiction of a state or federal court, does not oust the jurisdiction of that court. Even if in any case there should be a conflict of jurisdiction between two courts, accused, who is before one court for trial, cannot take advantage of the fact that his presence has been illegally or improperly obtained."
Presiding Judge: Is this a convenient point, Mr. Hausner where we may stop?
Attorney General: As you please, your Honour.
Presiding Judge: We shall accordingly stop now. The afternoon session will begin at 16.30 hours, exceptionally, in order to enable us to participate in the funeral of the State Attorney, whose passing we deeply mourn. The next session will be at 16.30 today.