The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 1999/05/27

192. There is, of course, no better illustration of what we
have said just now than the "Final Solution" itself.  Here
the basis of the crime lay in Hitler's order to achieve the
physical extermination of the Jews.  This was not an order
to exterminate the Jews of Germany, France, Hungary, Poland,
Soviet Russia - each group separately.  It was not an order
to exterminate first one million Jews and later another
million, and so on; but the order was one comprehensive
order, and the desire of the main conspirators and
perpetrators was identical with the wish of the original
initiator - general and total.  Their criminal intention did
not renew itself from time to time; it was not limited, for
instance, to the first deportations to Lodz, Minsk and Riga,
so that when these deportations were completed, it had been
implemented completely and was renewed with the following
deportation; but the criminal intent was continuous and
embraced all activities, until the whole operation had been

193. This also applies to the objective aspect of the "actus
reus."  When the order to exterminate the Jews was given, it
was evident that this was a most complicated operation.  It
was not easy to kill millions, dispersed amongst the general
population.  The victims had to be found and isolated.  Not
every place is convenient for killing.  Not everywhere will
the population submit to the killing of their neighbours.
Therefore, the victims had to be transferred to suitable
places.  It was wartime.  Labour was needed.  Manpower
should not be wasted, and, therefore, the working capacity
of the victims themselves had to be exploited as long as
their muscles could function.  It was therefore clear from
the outset that a complicated apparatus was required to
carry out the task.  Everyone who was let into the secret of
the extermination, from a certain rank upwards, was aware,
too, that such an apparatus existed and that it was
functioning, although not everyone of them knew how each
part of the machine operated, with what means, at what pace,
and not even at which place. Hence, the extermination
campaign was one single comprehensive act, which cannot be
divided into acts or operations carried out by various
people at various times and in different places.  One team
of people accomplished it jointly at all times and in all

194. Hence, everyone who acted in the extermination of Jews,
knowing about the plan for the Final Solution and its
advancement, is to be regarded as an accomplice in the
annihilation of the millions who were exterminated during
the years 1941-1945, irrespective of the fact of whether his
actions spread over the entire front of the extermination,
or over only one or more sectors of that front.  His
responsibility is that of a "principal offender" who
perpetrated the entire crime in co-operation with the
others.  With due apologies, we shall illustrate our meaning
by an example which may seem incongruous, but it may serve
to clarify what we have said: Two persons may collaborate in
the forging of a document, each one of them forging only a
part of the document.  In such a case, they are both
responsible as principal offenders, for in the words of our
Code (Section 123(1)(a)), each one of them "perpetrated one
of the acts which constitute the crime," and it is not
necessary that both be present at the same time, while each
one commits his part of the offence.

This is the prevailing rule also in the English Common Law
(Macklin, 168 E.R. 1136; Glanville Williams, Criminal Law,
p. 177), and also in the law of the United States.  We quote
from Wharton's Criminal Law, 12th ed., vol. 1, p. 340, para.

     "If part of a crime also be committed in one place and
     part in another, each person concerned in the
     commission of the offence is liable as principal."

195. The Accused was privy to the extermination secret, as
from June 1941.  As from August 1941, he began to be active
in the furtherance of the extermination campaign, occupying
a central place in it.  We saw that the intention of his
deeds was the total biological extermination of the entire
Jewish People.  We saw the commencement of his actual
activities in his letter dated 28 August 1941, wherein he
acted to prevent the emigration of Jews, since preparations
for the Final Solution were being made.  From a legal point
of view, this was an act of aiding, committed in order to
facilitate the extermination of Jews in accordance with the
plan for the Final Solution.  Not later than September 1941,
or close to that time, the Accused made his first trip to
Globocnik on Heydrich's order.  Even if this journey was
made only in order to gain information on what Globocnik was
doing, for the Accused's superiors in the RSHA, this was
also an act of aiding, towards the planning of future
extermination activities by the heads of the RSHA.
Henceforth, all the Accused's activities in rounding-up the
Jews and transporting them for extermination, including all
the planning and the organization required, were directed
not only towards an isolated transaction, such as the
killing at Auschwitz of the Jews deported there by him in a
certain transport, immediately or after a time, by way of
"extermination through labour," but they were done within
the general framework expressed concisely in Hitler's order,
and detailed in Heydrich's speech at the Wannsee Conference,
as confirmed by all those present there.

Hence, the Accused will be convicted (if no justification
for his acts are found) of the general crime of the "Final
Solution" in all its forms, as an accomplice to the
commission of the crime, and his conviction will extend to
all the many acts forming part of that crime, both the acts
in which he took an active part in his own sector and the
acts committed by his accomplices to the crime in other
sectors on the same front.

196. As we see it, the first and second counts of the
indictment complement each other in describing the
activities connected with the Final Solution: The first
count describes the killing of Jews as a result of the
implementation of the Final Solution, and, therefore, the
second count must be limited to those Jews who were
subjected to conditions of life which were such as to bring
about the physical extermination through the implementation
of the Final Solution, but remained alive.  We shall,
therefore, relate this count, for instance, to those Jews
who were deported to Auschwitz during the period of the
Final Solution, and there put to hard labour, with the
intention of killing them, too, in time, in some way; but
who were saved because of the advance of the Soviet army.
We do not think that the conviction of the second count
should also include those Jews who were not saved, as if, in
their case, there were two separate actions: first,
subjection to living conditions calculated to bring about
their physical destruction, and later the physical
destruction itself.

197. We shall not content ourselves with what we have said
up till now about the Accused's responsibility for actions
connected with the Final Solution, but alternatively we
shall continue and examine his responsibility, assuming,
contrary to our opinion, that he is responsible only for
those actions connected with the Final Solution in which he
personally participated.  The factual basis for this
examination is to be found in the detailed description of
the activities of the Accused and his Section in the
previous sections of this Judgment, and we do not intend to
repeat the details here.  We found that the focus of his
activities was within the Reich itself, the Protectorate,
and in the countries of Europe to the west, north, south,
southeast and Central Europe.  During the period of the
Final Solution, the Accused acted against the Jews in those
countries in all the various ways which have been described,
in order to round them up and transport them towards their
death in the East.  Expressing his activities in terms of
Section 23 of our Criminal Code Ordinance, we should say
that they were mainly those of a person soliciting by giving
counsel or advice to others, and of one who enabled, or
aided others in that act (Section 23(1)(b), (c) and (d)).
But we wish to emphasize that in any case the Accused is
regarded as committing the crime itself, according to the
opening part of Section 23(1), whether he committed an act
in order to facilitate or to aid another in carrying out the
extermination (Section 23(1)(b) and (c)), or whether he
counselled or solicited others to exterminate (Section 23
(1)(d)).  But more important than that: In such an enormous
and complicated crime as the one we are now considering,
wherein many people participated at various levels and in
various modes of activity - the planners, the organizers and
those executing the acts, according to their various ranks -
there is not much point in using the ordinary concepts of
counselling and soliciting to commit a crime.  For these
crimes were committed en masse, not only in regard to the
number of the victims, but also in regard to the numbers of
those who perpetrated the crime, and the extent to which any
one of the many criminals were close to, or remote from, the
actual killer of the victim, means nothing as far as the
measure of his responsibility is concerned.  On the
contrary, in general, the degree of responsibility increases
as we draw further away from the man who uses the fatal
instrument with his own hands and reach the higher ranks of
command, the "counsellors" in the language of our Law.  As
regards the victims who did not die but were placed in
living conditions calculated to bring about their physical
destruction, it is especially difficult to define in
technical terms who abetted whom: he who hunted down the
victims and deported them to a concentration camp, or he who
forced them to work there.

Let us combine the examination of the Accused's criminal
responsibility according to the alternative assumption we
have made above.

We have found the extent of the measure of his activities in
the areas annexed to the Reich in the East, the Warthe
district, including the Lodz Ghetto, Bialystok, etc., where
he was active in considerable measure (sections 133-134),
and have found the measure of his activity in the
Generalgouvernement area, where the Accused acted
concurrently with others (sections 135-137).  We have
described his activity in areas conquered in the East
(section 138), and his activity in connection with the
Operations Units, when he visited Minsk, not later than
September 1941, and later on by participating in directing
their activities as from the spring of 1942 (section 139).
As to the camps, we found that the Accused encouraged
Globocnik to continue the extermination operations in his
camps in the Lublin area (sections 141-142), and this, too,
is an act of abetting, within the meaning of the last part
of Section 23(1)(c).  We have described the extent of the
Accused's activities in what took place in the Auschwitz
camp (143-146).  We have also described his rule over the
Terezin Ghetto (sections 150-152) and over Bergen-Belsen
camp (section 153).  We have dwelt upon his part in
introducing the method of killing by means of gas vans, the
introduction of the method of killing by Zyklon B gas at
Auschwitz and in the supplying of this gas to the victims
whom he transported from European countries, including the
Generalgouvernement area (sections 132, 137), to the
ghettos, to the Operations Units and to the camps in the
East, in order to have them exterminated there, whether
earlier or later.  It appears, therefore, that even if we
view each sector of the implementation of the Final Solution
separately, there was not one sector wherein the Accused did
not act in one way or another, with a varying degree of
intensiveness, so that this alternative way would also lead
us to find him guilty all along the front of extermination

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