THOSE young and aggressive but pretentious lawyers in the camp of Misfit Sara could learn some lessons the way German lawyer Dr. Robert Servatius defended even the most heinous Nazi war criminals in the Second World War.
Servatius defended Julius Streicher, the ill-repute, virulent antisemitic demagogue, who published a forgettable pro-Nazi propaganda magazine during the heydays of Adolf Hitler and his Nazi regime. He appeared for him at the first 1945 Nuremberg Trials, where top Nazi leaders were tried. Streicher lost. He was among those war criminals, who were hanged.
Servatius also appeared for Adolf Eichmann, the architect of the mass transport of millions of Jews to Nazi extermination camps in Europe. In 1960, Mossad agents kidnapped Eichman from Argentina, where he hid to escape responsibility for his war crimes. Eichman underwent a court trial by the Jerusalem District Court in 1961. He was sentenced to death by hanging in 1962.
“Even the most heinous criminal deserves representation in court,” Servatius thundered as he represented and defended Eichmann in 1961. No German lawyer wanted to defend Eichmann because it would mean he had to leave his law practice in Germany and live for sometime in Israel, which was then a new state at that time.
Servatius agreed but on the precondition that Israel pays his professional fee. Israel agreed. Incidentally, it was Eichmann who hired him but he did not have the means to pay him. Israel shouldered his fees. Servatius was never a member of the Nazi Party.
Then Israeli Prime Minister David Ben-Gurion opted for a court trial rather than Eichmann’s summary execution. His trial in Jerusalem had global coverage.
In his defense of Eichmann, Servatius raised as a main argument the legality of his trial. At the start, he challenged the Israeli Court’s jurisdiction. Moreover, he argued that the three judges, all Israeli Jews, could not be impartial and objective because Eichmann was accused of crimes against the Jewish people. Hence, their personal identity created a conflict of interest.
Furthermore, since Eichmann was illegally abducted from Argentina, the Israeli Court did not have jurisdiction due to unlawful captured people. Eichmann’s abduction violated Argentinian sovereignty and international law. “Since Eichmann’s extradition was unlawful, the trial itself was null,” Servatius argued.
The court rejected this, holding that jurisdiction depends only on the criminal law cited and its applicability, not how the accused was brought to court – “The right to plead violation of the sovereignty of a state is the exclusive right of that state”.
Eichmann was being punished under an ex post facto law, which was the Nazis and Nazi Collaborators (Punishment) Law of 1950, Servatius said, adding that this law was enacted after committing his crimes for the period 1939-1945.
Servatius argued his case violated the principle of “nullum crimen sine lege, nulla poena sine lege,” or literally ”no crime or punishment without law. “
For its part, the Israeli Court conceded that non-retroactivity is a general principle, but said the 1950 law did not invent new crimes, it merely provided a mechanism to punish acts already universally condemned as criminal under international law, when Eichmann committed them.
Moreover, Israel did not exist when the crimes were committed in Europe, Servatius argued that Eichmann was not an Israeli citizen, and neither were his victims at the time of commission. He argued this was an unwarranted extraterritorial stretch contrary to sovereignty of countries where crimes occurred.
The Israeli Court answered on three grounds. First, Eichmann commited war crimes and crimes against humanity. They were extraordinary crimes, which calls for universal jurisdiction. Hence, any court in any state can prosecute him.
The Court also mentioned the “protective principle,” where Israel is the state “of the Jewish people,” the very people Nazis tried to exterminate. The Final Solution aimed to wipe out Jews everywhere, including in Palestine. Hence, Eichmann’s trial was an act of self defense..
Moreover, several states founded after World War II also tried crimes committed before their creation. Hence, the fact the Court did not exist at the time made no difference, it said.
During the trial, Servatius argued that Eichmann was the “small cog” in a big state apparatus and that he merely followed the orders of his superiors, including Heinrich Himmler and Reynaud Heyrich, and others. He also argued that he merely organized the mass transport of those Jews, who were brought to extermination camps like Auschwitz, Treblinka, among others.
Eichmann also argued that he was not a policymaker but a bureaucrat who was assigned for transport of those Jews to their deaths. He also claimed that he did not kill those Jews and did not have any guilt feelings about their death.
The Israeli Court rejected all these claims, ruling that Eichmann was a key perpetrator, who “pulled the strings” to deliver the victims to their killers. Moreover, following criminal orders did not absolve him of any crimes.
The Israeli Court sentenced him to death by hanging. Servatius appealed his case for a lighter sentence but the Jerusalem District Court rejected all defenses.
After Eichmann’s trial, Dr. Robert Servatius went back to Germany to resume his law practice. He did not talk about the trial. Neither did he give any interview. He consistently refused to talk about the case until he died in 1983 at 88.
