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Legal Analysis of the Findings of Fact in the Light of the Indictment

181. The acts of the Accused against the Jewish People were
detailed in eighth counts 1-8 of the indictment.  In all
these counts, the Accused was charged with offences under
Section 1 of the Nazis and Nazi Collaborators (Punishment)
Law, 5710-1950.  This section defines three crimes for which
the punishment is death:

Crime against the Jewish People - Section 1(a)(1), and with
this the Accused is charged in counts 1-4;

Crime against humanity - Section 1(a)(2), and with this the
Accused is charged in counts 5-7;

War crime - Section 1(a)(3), and with this the Accused is
charged in count 8.

Section 1(b) defines the nature of these three crimes.

182. We shall now devote our remarks to the Crime against
the Jewish People, referred to in counts 1-4.  The
legislator has specified in seven sub-sections the acts
which he regards as a crime against the Jewish People.  We
have to deal only with the first four sub-sections in this
list, because counts 1-4 are parallel to these four sub-
sections, as follows:

(1) killing Jews, is dealt with in the first count;

(2) causing serious bodily or mental harm to Jews, is dealt
with in the third count;

(3) placing Jews in living conditions calculated to bring
about their physical destruction, is dealt with in the
second count;

(4) devising measures intended to prevent births among Jews,
is dealt with in the fourth count.

According to the first part of Section 1(b) of the Law, all
these acts amount to a crime against the Jewish People only
if they were committed with intent to destroy the Jewish
People, in whole or in part.

As to the periods during which the crimes were committed,
the first and second counts mention the period 1939-1945
and, from the recital of facts, it appears that the
reference in these counts is to the period which commenced
with the outbreak of the Second World War in September 1939.
In the third count, the "period of the Nazi regime" is
mentioned as the period of the commission of the crimes, and
in the fourth count, the period is "commencing with the year

It has been proved that the specific intent to destroy the
Jewish People, within the terms of Section 1(b), lay at the
basis of the plan called "the Final Solution of the Jewish
Question," from the time in mid-1941, when Hitler gave the
order for general extermination.  The acts of murder and
violence against the Jews, committed by the Nazi regime and
under its influence from that time onwards, were committed
without a shadow of a doubt with specific intent to destroy
the Jewish People as such, and not only Jews as individuals.
Hence, also, the ruthlessness shown even towards little
children, because those who sought to strike at the roots
did not wish the survival of the new generation, which would
ensure the future and continuity of the Jewish People.

We have found above that information on the plan for the
Final Solution reached the Accused at the beginning of the
summer of 1941 (section 163 of the Judgment).  Further we
have seen (sections 163-164) that, at the end of August
1941, the Accused sought to prevent the emigration of Jews
from German-occupied territories, lest these Jews escape the
Final Solution "which was now in the preparatory stage," and
that, not later than mid-September 1941, the Accused paid
his first visit to Globocnik in Lublin, and immediately
afterwards took part in discussions about the first
deportations from the Reich territory to the Lodz Ghetto.
It may be said that, from the moment he heard of the order
for total extermination, the Accused did not sit with his
arms folded, and that, from then onwards, all his activities
as Referent for Jewish Affairs in the RSHA were co-ordinated
and directed towards the target of the Final Solution.  But
since in the evidence before us we have not found positive
proof of specific action on the part of the Accused in the
interim period between June and August 1941, we think it
more cautious to find that his activity within the framework
of the Final Solution commenced in August 1941.

183.The facts which have been demonstrated, showed not only
that the Accused knew of the intent to destroy the Jewish
People, which lay within the plan for the Final Solution,
but he personally was also permeated with this intent.  The
very breadth of the scope of his activities is evidence of
this.  Moreover, he prepared the material for Heydrich's
address at the Wannsee Conference, both the statistical
material and the section on the lesson to be learned from
history, the lesson which dictated the complete
extermination of the Jewish People (section 164).  We may
recall his reference to "elements of much greater ethnic
value who are more fertile," who must not be kept alive
(section 116) and his statement on "the important biological
material...whose emigration to Palestine is not desirable"
(section 155).  All this also bears witness to the aim of
biological extermination, directed against the entire Jewish
People.  We shall further quote Hoess' statement about the
Accused, solely in order to sum up the Accused's attitude on
this question, which has in any case been well proved:

"Eichmann was permeated with the conviction that if there
would be success in destroying the foundations of Jewry in
the East by complete extermination, then Jewry as a whole
would never recover from this blow.  For the assimilated
Jews of the West, including America, are not able - nor do
they wish - to replace the enormous losses in blood, since
amongst these Jews there is no expectation of offspring in
considerable numbers." (Hoess on Eichmann, T/88, p. 3)

The question arises whether this same intent to destroy the
Jewish People existed in the heart of the Accused already at
an earlier date, before he was informed in 1941 of the Final
Solution.  In the third count, Section (b), of the
indictment, the Attorney General charges the Accused with
causing grave bodily and mental harm to millions of Jews,
during the entire period of the Nazi regime, with intent to
destroy the Jewish People, and in the list of acts in
section (d), supra, mention is made of mass arrests of Jews
and their torture in concentration camps, such as Dachau and
Buchenwald, and the organization of mass persecutions on the
Crystal Night, the organization of a social and economic
boycott of Jews, and stigmatizing them as a  subhuman racial
group, and the implementation of the Nuremberg Laws.

184. With regard to the period up to the outbreak of war,
the acts specified in section (d) of the third count were
not yet part of the programme for the Final Solution by way
of complete physical extermination.  Accordingly, we have to
consider separately each of these series of acts - for
example, the events of the Crystal Night.  If so, there is,
in our view, grounds for saying that the mass acts of
violence, committed by the National Socialist regime up to
the outbreak of the War, as for instance the dispatch of
thousands of Jews to concentration camps, were already
committed with intent to destroy the Jewish People in part,
and therefore they already come within the definition of
"crime against the Jewish People," within the meaning of
Section 1(a)(1) of the Nazis and Nazi Collaborators
(Punishment) Law; for it was clear from the outset to those
who sent the Jews to the concentration camps because of
their being Jews, that the prisoners would be placed there
in such living conditions as would cause many of them to die
- and this was the purpose of those who sent them there.
But there is no need for us to decide this question finally,
because, in our view, it has not been proved that, until his
transfer to Vienna in 1938, the Accused had already taken an
active part in the mass persecutions mentioned in section
(d) of the third count.  We have explained above (in section
62) that up to that date the Accused was engaged in
intelligence work and not on executive measures.  We have
also found that it has not been proved that the Accused
participated in the organization of the Crystal Night in
Austria (Section 64).

185. With regard to the activity of the Accused in the
Central Office for Emigration in Vienna, Prague and Berlin,
designed to bring about the forced emigration of Jews, we
have found that here the Accused exerted pressure and used
threats of terror (Section 65).  Amongst other things, he
also threatened to send Jews to a concentration camp if
emigration were not speeded up as he wanted.  We have come
to the conclusion that these threats do not amount to active
participation in dispatching Jews to concentration camp or
in what occurred inside these camps.  The organization of
forced emigration itself was not yet accompanied by intent
to destroy the Jewish People, but there is no doubt that in
the circumstances that have been described these were acts
of expulsion of a civilian population which fall within the
definition of "crime against humanity."

186. With regard to the expulsion of Jews, in the
organization of which the Accused was engaged in what we
have called above the "second stage," that is to say,
between the beginning of the War and mid-1941, namely the
deportations to Nisko, the evacuation of Jews from the areas
annexed to the Reich in the East (the Warthe district, etc.)
and from Vienna, the expulsion of the Jews from Stettin, and
from Baden and the Saar Palatinate (sections 72-75, 77): We
have found that these were organized by the Accused in
complete disregard for the health and lives of the deported
Jews.  So, too, it has been proved that many Jews died as a
result of the expulsions from Nisko, Stettin and the Warthe
district. There is no doubt that here, there was cruelty
which bordered on premeditated malice, and we have weighted
carefully whether or not the Accused foresaw the murderous
consequences of these deportations, and this was what he
wished.  But in the final analysis, a doubt remained in our
minds as to whether there was that intentional aim to
exterminate which is required for the proof of a crime
against the Jewish People, and we shall, therefore, deal
with these inhuman acts as being crimes against humanity.

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