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Last-Modified: 1999/06/14

After the interval, Eichmann returned to Hungary again,
following the coup d'etat of 17 October, and to Kasztner he
said, according to the report:

     "Well, you see, I am back.  You hoped in vain that
     there would be a recurrence here of the situation in
     Romania or Bulgaria.  The Jews of Budapest will be
     evacuated, and this time - on foot.  The means of
     transport are needed for other purposes."

The horrors of the Fussmarsch are known to us.  Eichmann's
responsibility emerges with such clarity from all documents
that there is no need to repeat it.  The Court will find the
details also in the record, and the important evidence is
described in detail - in the written summary.  Already at
that time it was known that it was he who organized this
murder, as Juettner testified.  This was known also to the
deportees themselves, as we have heard from Mrs.
Fleischmann, and this is what she reported about those
horrors - about the pigsties in which the deportees were
housed; about the corpses wearing the Yellow Star strewn
along the way, from whose breasts dripped congealed blood;
about brick factories where they hid; about young and old
who marched; about women in the last months of their
pregnancy who had to take part in the death march, and about
one of them who, later on in the camp, when she lay writhing
in labour pains, had the German "Lagerfuehrer" standing in
front of her with a big flashlight, as she was lying on the
ground, he was standing facing her with hands on his hips,
saying that he wanted to see how a new person was coming
into this world.  The deportees grew weaker from day to day.
Typhoid fever wrought havoc among them, meningitis took its
toll, hundreds and thousands fell along the way.

The Court will find the remaining details in Mrs.
Fleischmann's testimony.  Eichmann saw the march.  He admits
as much.  He saw only two corpses, but if he saw the march,
he saw the horrors, the thousands plodding through the mud,
those lying alongside the roads, those dropping from fatigue
and exhaustion, those shot by the guards.  But these were
only Jews.  What was there to get excited about?  We have
heard him say that he did not get excited about such

This was the termination of his operation in Hungary, which
he will, years later, describe to Sassen in the following
words - and he admitted the content of the quotation to be
generally true:

     "The Allies bombed the railway stations and the tracks,
     so I wanted to show them what I was capable of...
     Nothing will help you... We shall be marching

And then come his words in handwriting in the typescript to
the effect that he was the one who suggested the march.
Subsequently, he twisted and turned in his examination and
said that he only negotiated about food and supplies, and
about laying down stores for the comfort of the marchers,
and after that he again retracted and said that he had in
fact suggested a different kind of march, and what was
carried out was not according to his proposal.

That lie is again exploded when Eichmann speaks about
Eichmann in another passage of the Sassen Document where he
says that, after the march was completed, he was
complimented by Endre and Baky, and again they drank to the
occasion.  This time we learn from him that they drank
brandy made of mare's milk.

This is how he concluded the Hungarian affair, these were
the final death touches there.

I have to say a few words here about the matter of the
murder in the cherry orchard.  We did not accuse him of this
murder in the indictment; we brought up the affair only in
order to show his overall attitude toward Jewish lives.
Abraham Gordon, who testified about the matter in Session 54
(Vol. III), described work at Villa Aschner.  He spoke of
Slawik and of the toolshed, he described the character of
Slawik who used to say, "Watch out for me," he described how
the boy Solomon was beaten up, how the boy was taken out
lifeless; and the amphibian vehicle.  He told us about
Teitel, who said, "I threw the carcass into the Danube," and
to the other boys he said, "Your fate will be the same."  He
further told us that he never again saw Solomon, he told us
about the disappearance of Kolbach, about the slaps in the
face he received from Eichmann and about the libellous story
which Slawik told about them, about some attempted rape of a
Hungarian girl.

The Defence Counsel cross-examined Gordon on this, and
Eichmann disclaims responsibility for the entire affair.
There were two contradictions in Gordon's story: While once
he said that he had told his brother about the whole matter
within an hour, elsewhere he says a year later; and again,
while once he said that the blows were dealt with a belt,
elsewhere he said, with a heavy implement.

Your Honours, these are not serious contradictions.  The
Defence Counsel, had he wanted to do so, could have summoned
the brother to testify, could have found out when Gordon
really told his brother about the matter.  Gordon told us
about giving testimony at the Eilat police station, and that
there were some difficulties with the policeman who took
that testimony, and it is quite possible that there was a
mixup between "hour" and "year."  Gordon made a good
impression.  He gave his statement to the police as long ago
as 15 June 1960 [N/1], very shortly after Eichmann was
captured.  This was certainly before he could have known at
all what Eichmann had to say about this matter, and before
he had any opportunity whatsoever to make up stories.  Why,
he knows details that Eichmann, too, on the one hand, and
Slawik on the other hand, confirmed, and so did Krumey.
Villa Aschner - that is correct; he knows the names of
Slawik, Teitel and Kolbach; he knows about the Schwimmwagen
(amphibious vehicle); he knows about the work of the Jews in
the garden; and he knows about the fruit orchard.

So what happened here?  According to Eichmann, Gordon came
here and told a story made up from A to Z.  But whose story
is made up?  Eichmann testified in Court after he had seen
Krumey's testimony, and before he saw Slawik's testimony.
Therefore, when Krumey mentions Slawik in his testimony, he,
too, responds and tells us: Right, Slawik was there.  But
when Krumey does not mention Teitel, he, too, here in Court,
does not remember Teitel at all.  And when he was asked
whether Slawik was the one who supervised the work, he says:
"Yes, that is quite possible.  Probably he did this."  But
he does not know that Slawik has in the meantime testified
about this, about the fact that Teitel was there, and what
is more, that he was sentenced to death for some act of
robbery or murder.
Slawik knows about the engineer Kolbach.  Eichmann never
heard such a name.  We are asking that Gordon be believed,
not because we want a conviction for the murder of the boy
Solomon.  We are not asking for such a conviction, and we
did not charge him with this detail, as there was no sense
in setting apart this one boy from all the millions.  What
we are asking is to see the brutal attitude towards the
Jewish boy, that the false charge of having stolen fruit was
enough for Eichmann to be at least an accomplice to having
him beaten to death.  This is his general attitude towards
the Jews, and this also contradicts and refutes and
undermines his version that this sensitive man was not at
all capable of hurting a man or of watching a spectacle of

Judge Halevi:  I have a question here.  You said that there
was a contradiction between the words "year" and "hour"
about which the Defence Counsel could have summoned the
brother of the witness.  Was this not the duty of the

Attorney General: No, Sir.  We brought the witness, and we
did not think that this contradiction was all that fatal.
We think that Gordon gave a plausible explanation for that
contradiction, and we are not compelled, especially when we
are not asking for a conviction on this, to give further
explanations.  The brother is here, and this is known to the
Defence Counsel.  He could have brought him here.
Naturally, if there had been a specific count, and if we had
charged him on this particularly, then the burden of proof
to the end, on this matter, would have been on us, as Your
Honour has remarked.

Judge Halevi:  Do you think, in general, that the extent of
proof incumbent upon the Prosecution concerning this
particular deed is lighter than in a murder trial?

Attorney General: Your Honour, to the extent that we are
asking the Court to make a finding at all, then certainly
the burden of proof, beyond any reasonable doubt, is upon
us, throughout the length and breadth of the evidence.  That
is clear.  But we think that there is a difference between
the amount of proof required of the Prosecution, in order to
ask for a conviction, or in order to support a certain
finding in a general context, where we are talking about a
mental attitude and about brutality and about Jew-hatred;
and when this fits in with that general context, then I
would say the extent of proof here, as part of a general
setting, when it has so much support from so many sources -
is somewhat lighter.  As I said yesterday, for instance,
with regard to the fact that Eichmann's name was known in
the ghettos of Europe, and Your Honour asked me what value
that point had.  I must say that this does not have any
value for the matter proper, that is to say the information,
internally speaking, is not thereby proved, but it remains a
fact that this name was heard in the ghettos, and no other
name.  To put it differently: We cannot deduce from the
testimonies of Wdowinski and others that Eichmann was really
responsible for executive action, but one thing we can
deduce: That they had heard this name as that of the man
responsible for executive action, that someone had told them
as much, as distinct from the content of this statement -
this we can certainly deduce.  Why, then, was no other name

I shall now pass on to the discussion of a legal problem,
the problem of superior orders.  Eichmann's defence when he
says that he carried out orders upon instruction from above
cannot be a defence in this trial.  Section 8 of the Nazis
and Nazi Collaborators (Punishment) Law 5710-1950 already
precludes the application of Section 19 of the Criminal Law
Ordinance, 1936, and that is the sole section which could
provide a limited defence to anyone acting upon orders.  To
put it differently: Were it not for Section 19, orders could
not be a justification, support or defence for anyone
performing an act which otherwise is illegal.  Now comes the
legislator and takes this support away from persons accused
under the Nazis and Nazi Collaborators (Punishment) Law.  He
did this following what was done with regard to the other
war criminals, following the London Charter, Section 4(b) of
the  Control Council Law.  We did not make any innovation at
all in Israeli legislation.  Secondly, even if Section 19
were to apply, and even if this defence had not been taken
away from the Accused expressly, this could not have helped
him, for a number of reasons: First, this would have had to
be a legal order that he was carrying out.

A soldier shooting the enemy on the battlefield will not be
liable to penalty for the act which he is performing.  But a
soldier who continues to shoot an enemy after the enemy has
laid down his arms and has put up his hands and surrendered,
will be found guilty of murder.  And anyone performing an
order which on the face of it is illegal, is liable to
punishment according to the law.  The District Military
Court, in the Kafr-Kassem trial, described such an order as
follows, on page 30 of our booklet, the third paragraph
before the end:

     "The mark of an order which is `manifestly illegal'
     flies like a black flag over orders given as a warning
     sign, saying `forbidden.'  It is not formal illegality,
     hidden or half-hidden, not illegality evident only to
     the eyes of legal experts which is important here, but
     a violation of the law which is glaring and obvious, a
     certain and necessary illegality, which appears on the
     face of the order itself, a clear criminal character of
     the order, or the acts which the order commands.
     Illegality which strikes the eye and shakes the heart,
     if the eye is not blind and the heart is not deaf or
     corrupt - that is the extent of the `manifest'
     illegality required in order to abrogate the duty of a
     soldier to obey and make him criminally responsible for
     his acts."

The Military Court of Appeals which dealt with that same
case subscribed to these definitions in paragraph 67 of its
judgment - these comments are on pages 32-33 of our booklet
- and after quoting this passage verbatim, it says - after
calling that passage an expression of this idea in telling
words which ought to be listened to and remembered:

     "In other words, the concession made by the legislator,
     which we have referred to above, means that in this
     context he does not insist on applying the general
     principle that `ignorance of the law is not a
     justification for any act or omission which otherwise
     would have been an offence.'  "Because of the special
     conditions under which a person finds himself when he
     is subject to the duty of obeying orders given to him
     by a superior authority, the legislator forgives him
     his ignorance of the law, that is to say, lack of
     knowledge of the fact that this order was illegal, but
     on condition that the illegality does not reach the
     degree of being `manifestly illegal.'  To that end, the
     legislator equated an error of law with the general
     doctrine, that a genuine and plausible error regarding
     the facts absolves the person in error from criminal

The logic inherent in the duty of non-compliance to a
manifestly illegal order, is discussed by Stephen in his
book on the History of Criminal Law.  The Court will find
his remarks on page 21 of the booklet:

"The doctrine that a soldier is bound, under all
circumstances whatever, to obey his superior officer would
be fatal to military discipline itself, for it would justify
the private in shooting the colonel by the orders of the
captain, or in deserting to the enemy on the field of
battle, on the order of his immediate superior.  I think it
is not less monstrous to suppose that superior orders would
justify a soldier in the massacre of unoffending civilians
in time of peace, or in the exercise of inhuman cruelties,
such as the slaughter of women and children, during a
rebellion.  The only line that presents itself to my mind is
that a soldier should be protected by orders for which he
might reasonably believe his officer to have good grounds."

These words were written many years before anyone could have
envisaged the size of the planned horror which eventually
was to be carried out by orders from above, but they also
apply to those who acted in the execution of this horror.
Small wonder, then, that the International Military Tribunal
of Nuremberg, which was asked to rule on this question, said
- and these words are quoted on page 34 of our booklet:

     "It was also submitted on behalf of most of these
     defendants that, in doing what they did, they were
     acting under the orders of Hitler and therefore cannot
     be held responsible for the acts committed by them in
     carrying out these orders.  The Charter specifically
     provides in Article 8:

     `The fact that the defendant acted pursuant to orders
     of his government or of a superior shall not free him
     from responsibility, but may be considered in
     mitigation of punishment.'

     "The provisions of this article are in conformity with
     the law of all nations.  That a soldier was ordered to
     kill or torture, in violation of the International Law
     of War, has never been recognized as a defence for such
     acts of brutality, though, as the Charter here
     provides, the order may be urged in mitigation of the
     punishment.  The true test, which is found in varying
     degrees in the criminal law of most nations, is not the
     existence of the order, but whether moral choice was in
     fact possible."

Presiding Judge: What is the meaning of these last words:
"Whether moral choice was in fact possible?"

Attorney General: I thought about that, too, Your Honour.
As the Military Tribunal says, the problem is not: Was there
an order or was there no such order?  The question is: Was
there a possibility of internally weighing this order, and
was it possible to decide whether to comply with it or not
to comply with it?  In other words: Was there a possibility
of deliberation; did the person carrying out that act have
the option of realizing, what I am going to do carries that
black flag - or was there no such option?

Judge Halevi:  Perhaps this refers to a case of coercion, of
compulsion?  Perhaps the reference is to a case in which
there was no way of not carrying out the order?

Attorney General: Then it is no longer a moral test, but a
physical test.  If somebody with a gun comes and says:
Murder the other person, and if you do not, I am going to
shoot you - then this is no longer a problem of moral
choice, but a problem of physical choice.  It seems to me
that the words allude to this: Does a person who is faced
with an illegal order have any physical possibility at all
to deliberate at that moment and think: This matter which is
required of me, is it legal or manifestly illegal.  If it is
manifestly illegal, can he deliberate about it, as the
Accused is saying, "Ich habe mitgedacht" (I took part in
considering matters) - then he had the moral option not to
carry out the illegal orders.  And for that reason, the
arguments put forward in the other war-criminals' trials
were not admitted.  For instance, in the Belsen trial - and
the Court will find this on pages 34-35 of our booklet -
there one of the accused argued as follows: "If I had not
done this, someone else would have, and why do I have to be
accused?  In any event, the crime would have been
committed."  It was further argued in that trial: You have
it easy in applying the principle of the illegal order.  A
soldier in the British army, when he receives a manifestly
illegal order, truly has the choice, he has the option of
disobeying the order, and then what is he facing at most? A
court martial.  He will come to the court martial and argue
in his defence thus: How could I have done such a thing? The
order was manifestly illegal, and he will be acquitted.
Therefore, he is not taking a risk when he is refusing to
carry out the illegal order.  That was the argument in the
Belsen trial, but that argument was rejected there, too.  It
was said that, factually and legally, there is no substance
in the argument about the difference which allegedly exists
between the status of a German soldier and the status of a
British soldier.  The military law of Germany which applied
to the Nazi army stated explicitly in paragraph 47 - and we
have submitted to you this Military Code...

Presiding Judge:  I do not think you have submitted the Code

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