The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 1999/06/14

[Dr. Servatius, Continued]

According to Section 23(1)(c), it is also sufficient to show
that the accused actually aided the perpetrator in
committing the offence.  However, even in that case, the
"guilty mind" the awareness of guilt, has to be proved.  It
must be shown that the accused approved the act of the
perpetrator, the criminal nature of which he was capable of
understanding.  The particular features of the Accused's
case are as follows:

The Accused was not involved either at the beginning or the
Inhuman events of enormous extent have occurred in modern
history, too; e.g., the genocide of Indians, Mexicans,
Peruvians, etc. after the discovery of North and South
America, the abduction of slaves from Africa, the
extermination of the aborigines in Australia, the
persecution of Jews in Spain, and the murder of the
Huguenots in France.

All these deeds were not considered to be manifest crimes,
of which the participants ought to have been aware.  They
were political acts.  Probably this will remain so, until a
world government is established.  The state requires
obedience precisely in the political sphere.  This is
secured by taking the oath from those who are bound to obey.
Compared with the infringement of this duty, criminal
offences are of no importance.  But the refusal to obey is
punishable by death.  He who refuses to carry out an order
to kill can choose death.   It is not for the individual
citizen to decide what are the measures permitted to be
taken.  The leadership of the state determines its politics.
The State of Israel, too, was compelled to take harsh
measures when the existence of the state was at stake.

Faith in the leadership is the basic principle of all
states.  Deeds are silent, obedience is blind.  The state
can rely on these virtues alone.  It depends upon the
success of politics whether these virtues are rewarded.
Where politics have failed, the order is considered as a
crime in the eyes of the victor.  He who has obeyed is
unlucky; he has to pay for his loyalty.  The gallows or a
decoration - that is the question:

"The deed which fails will be a common crime.  If it
succeeds, it will be sanctified."

Presiding Judge: Dr. Servatius, Kempner's book you referred
to is not in our possession.  Perhaps you could put it at
our disposal?

Dr. Servatius:  Yes, Your Honour, I can put a copy at your
disposal.  The Accused has declared that in his heart he
rejected the extermination of the Jews, but that, in
obedience to orders given to him, he had to remain at his
post.  He declares that he could not have refused to obey,
as he was under constraint.

The functioning of the state and of its organs is not based,
in the first place, upon the Criminal Code.  The life of the
state is guaranteed by voluntary obedience.  Thus the
Accused, too, acted for the state, voluntarily and out of
conviction, until he became aware of the aims of
extermination.  However, once the first steps on the way to
extermination are taken, no return is possible.  At that
stage, obedience is enforced by law.

Witnesses who held higher-ranking positions in the SS have
declared that it was easy to evade the carrying out of
orders which appeared to be unlawful.  The political and
military aristocracy, it is true, was able to refrain from
performing dirty work.  Himmler, in his speech at Poznan,
confirmed that to his SS generals for the particular case at
issue.  However, the situation of lower-ranking officers is
different: for them an order always remains an order.

It was possible to try to get an assignment to the front
line, in order to avoid the performance of a task of which
one did not approve.  THe Accused tried to do so.  His
superior refused.  During war, everybody has to remain at
the post he has been assigned to.  This is a generally
accepted principle.  The alternative is to dodge, for
instance by simulating sickness.  This is not a refusal to
obey; this is running away at the expense of others.  It is
a betrayal of comrades; one leaves them to face the
compulsion of commands, instead of holding out with them in
resistance, just when it becomes necessary to do so.  In the
eyes of the state, the dodger is a deserter.  Comrades and
collaborators must treat him as a traitor who
surreptitiously makes off along a way which is barred to

However, the ways of avoiding the carrying out of an order
were not so practicable as some witnesses claimed after the
War.  You have to examine the actual case in question.  Then
you will see: no refusal to obey occurred; the circumstances
have always been of a special nature.  Had the refusal to
obey been as easy as that, it would be incomprehensible why
the resistance fighters did not act more openly and
resolutely.  They could not do so because they had to expect
a most severe reaction, even at the slightest attempt.  In
particular, the tribunals of the SS and of the police were
merciless in their treatment of a man of defeatist leanings.
They had to try persons who were bound by a special oath of
loyalty, and were bearers of state secrets.  However, it was
even highly doubtful whether a trial would take place at
all.  In a clear-cut case, a trial was not necessary.  In
this connection, I refer to Gerstein's statement, according
to which two persons were killed on the spot, because they
had been gossiping.

Presiding Judge: Dr. Servatius, let me ask you a question:
Is there anything in the Accused's testimony, in this Court
or in his statements to the police, showing that the
extermination of the Jews had stirred his conscience?  Is
not his version: There was an order, and therefore the
question whether to ask my conscience did not arise at all?
In my opinion, there is a difference between these two

Dr. Servatius:  As far as I have understood the Accused, as
well as in conversations with him, always rejected these
measures, but he had to carry them out under constraint,
since the orders had been given.  This was his state of

Presiding Judge: Anyhow, I shall have to look for passages
in the Accused's testimony where he states clearly: I
rejected these measures. I think he has argued constantly:
"What am I and who am I to be able to discuss these matters
at all - there was an order!"

Dr. Servatius:  It seems to me that, on perusal of the
testimonies as a whole, nevertheless the basic attitude will
become evident.  This ought to be the outcome, after
examination of the testimonies.

Presiding Judge: We shall do so.

Dr. Servatius:  What could have been done by the resistance
fighters mentioned by the witness, Probst Grueber?
Ministerialrat Loesener resigned from his office as head of
the Section for Jewish Affairs in the Reich Ministry of the
Interior.  But he approved of the measures taken against the
offspring of mixed marriages in an exemplary manner, and
later on he was appointed to the post of a high-ranking
Judge: in the administrative tribunals.  This is a career
which cannot be shown to have any connection with a refusal
of obedience.  This unknown SS officer at the Gestapo in
Berlin, does not show any outward signs of disobedience.  On
the contrary, he is more than harsh and snappy.

Additional facts have been established: The SS judge, Dr.
Morgen, did not resign from his post after a visit to the
Auschwitz extermination camp.  The International Military
Tribunal listened to his testimony with great reserve.   The
SS officer, Dr. Gerstein, supplied the camps with prussic
acid.  His acts of resistance were committed in secrecy.  He
was not able to refuse to obey.

You cannot expect that the Accused should have done what
even these fighters in the resistance movement were unable
to do.

Furthermore, the Accused points out that his refusal to obey
would not have had any influence on the continuation of the
extermination of the Jews, and that his sacrifice would have
been meaningless.  The machinery issuing orders would have
continued to work as it did after Heydrich was killed.  The
conditions under which individual crimes are committed are
different in that respect: The offender can withdraw, he can
prevent the furtherance of the criminal act.  Faced with the
command of the all-powerful collectivity, the sacrifice
becomes meaningless; in this case, the crime is not the deed
of an individual - the state itself is the offender which,
by a system of horror and propaganda, is confronting men
with an insoluble problem.  The Court is to find an ex post
facto solution in the courtroom, detached from the time when
the events happened.  What a difficult task!

Furthermore, it is recognized in international law that an
Act of State constitutes an exemption from criminal
responsibility, that is to say: He who has acted on behalf
of the state in execution of its will cannot be prosecuted
for the commission of his act.  The application of this
principle has been excluded by the London Charter, Article 7
of which provides:

     "The official position of defendants, whether as heads
     of state or responsible officials in government
     departments, shall not be considered as freeing them
     from responsibility or mitigating punishment."

No similar provision has been included in the Nazis and Nazi
Collaborators (Punishment) Law.  The Prosecution claims that
this rule nevertheless ought to be applied; it is argued
that the enactment of an express provision was not
necessary, for the exclusion expresses only a legal
principle which is generally accepted, and this idea should
be considered as customary law.  I beg to differ.  Criminal
responsibility of an individual for an Act of State has not
become customary law.

The Nuremberg Trials were held under exceptional provisions
aimed at the defeated.  They did not constitute the first
case in which a certain rule of customary law was applied -
such a custom does not exist.  Moreover, the reason put
forward for the enactment of this exceptional provision was
not that the principle of the Act of State had become
obsolete in general, due to legal developments, but that a
way had to be found to punish the leadership of the
defeated.  In that connection it was misleading to rely on
the provisions of the Treaty of Versailles conferring
jurisdiction for the trial of the German emperor.  This
trial should have taken place precisely by virtue of
contractual submission in the treaty of peace, and not on
the strength of existing law.

The higher the Accused is raised into the sphere of
political leadership, the more it becomes obvious that the
exemption from responsibility for having committed an Act of
State should apply to him.  However, this exemption from
responsibility applies also to him in his capacity as a
subordinate, inasmuch as he has acted in execution of the
state's intent.

Thus, the problem of retrospective application of the law
also arises: The London Charter was not enacted in
accordance with already existing legal principles applicable
to the main accused, as well as to anybody else, after they
just happened to be affected by them.  The history of the
London Charter shows a different situation.  The examination
did not extend to the legal principles to be applied, but to
the defences which the accused were entitled to raise
against these principles.  These defences were excluded by
the provisions of the London Charter.  Thus, legislation of
an exceptional nature was enacted with retrospective effect.
This was a law made to measure.

A similar situation existed when the Nazis and Nazi
Collaborators (Punishment) Law was enacted.  This has been
admitted by the Prosecutor in regard to the conspiracy to
commit a crime against humanity.  According to his
statement, criminal responsibility was extended in that law
beyond its scope under the London Charter, in order to close
a gap and to extend the categories of responsible
participants in the offence.  This is an ex-post-facto law
intended to apply with retrospective effect to a certain
group of persons, which is in contradiction to generally
accepted principles of law.

Finally, we have to deal with a question requiring
particular attention.  I refer to the question of
prescription.  The defence of prescription may be raised,
with certain restrictions, in respect of the crimes of
membership in organizations referred to in Counts 13 to 15.
Otherwise, the defence of prescription is excluded, in
respect of offences which are the subject of this trial.

The legal situation of the Accused in Argentina, at the time
of his abduction, was different.  In that country, the
prosecution of all the offences with which he is charged in
this Court was already precluded on the ground of
prescription.  The period of prescription was completed
fifteen years after the date of the commission of the
offence.  The last day on which the offence is alleged to
have been committed is considered to be 5 May 1945.
Therefore, the period of prescription was completed on 5 May
1960, that is to say, shortly before the abduction.

The restitution of the Accused's rights should consist in
placing him into the same situation in which he would have
been if he had been lawfully extradited at that time.  The
Accused could, therefore, have been convicted only in
accordance with Argentinian law, and the completed period of
prescription has, therefore, to be taken into account.

The meaning and purpose of this trial shall not be to take
revenge against the Accused for acts committed by the
political leadership.  The conviction of the Accused also
cannot constitute an expiation of the horrors which have
occurred.  The meaning of the trial can only be to
establish, by way of judicial examination, what has happened
- to make findings which will serve as an historical

In the tradition of the People of Israel, the idea of
prescription has found its early expression in the
institution of the "holy year."  It is a religious idea
that, in course of time, there is, and must be, forgiveness.
Prescription brings the blessing of peace.

What is asked for is not to pardon and to forget, but to
reflect and to stand still.

Time has also to bring peace, in order to heal wounds.  We
must turn away from the total struggle of measureless
collectivities.  Let us return to moderation, to self-
control, to humanitas.  A judgment should be given radiating
beyond the Eichmann case, a Solomonic judgment showing the
world the wisdom of the Jewish People.  By recognizing the
prescription which took place in Argentina, the blemish
caused by the abduction would be removed.  This, too, will
benefit peace.

It is my submission that the proceedings against the Accused
be stayed, and all measures of prosecution taken against him
be discharged.

Presiding Judge: Thank you, Dr. Servatius.  [Turning to the
Attorney General] Now you have asked for time to comment -
if you have something to comment on - on the written
material which has been submitted today.

Attorney General: Yes, Your Honour.

Presiding Judge: How much time do you need for that purpose?

Attorney General: We have not yet received the additional
material.  Dr. Servatius will certainly take care of that; I
assume we shall receive it.  If the Court will give us a few
days' time, I think we shall cope with that matter by

Presiding Judge: By the way, Dr. Servatius, I think that the
first copy of your final brief has been left with you.  It
is marked with my initials.  Could you return it now?  I
shall return to you one of the other copies.

Dr. Servatius:  Your Honour, the Presiding Judge, the pages
have yet to be numbered; it will be returned at once.  May I
now also submit Kempner's book to the Court?

Attorney General: Should the Court need another copy of the
book, we shall gladly submit it, for we have a copy.

Presiding Judge: That might be useful.

Dr. Servatius, after Mr. Hausner, the Attorney General, will
have filed his further comments - if he will do so - you
will have a further opportunity of closing remarks in that
respect, too.  How much time will you need for that purpose,
should you wish to exercise this right?

Dr. Servatius:  In that case, I shall need two days.

Presiding Judge:

Decision No. 101

The Attorney General will be at liberty to file his written
comments on the written material which has been submitted
today by Dr. Servatius.  He will do so by next Sunday.  Dr.
Servatius will be entitled to reply to these comments in
writing within two days from the receipt of the Attorney
General's comments.

Could you supply us with a copy of that Argentinian law
which has been mentioned by Dr. Servatius?  It has been
mentioned in the preliminary objections.  Do you have the
text of this law?

Attorney General: Your Honour, we have got a decision of an
Argentinian Court which relies upon that law, and it is not
in dispute that this is the law in Argentina.

Presiding Judge: That means that you do not have the law

Attorney General: No, Your Honour, we do not have the law
itself, but we could take care of this.  It is no problem.
If the Court needs a copy of the law, we shall take care of

Judge Halevi:  I would prefer to see the text of the law.

Attorney General: We have relied upon the Dzerzhinski case.
I have filed the decision in court.

Presiding Judge: Well - if you can, do supply us with a copy
of the law.  We shall be obliged to you.

Attorney General: Certainly, Your Honour.

Presiding Judge: The trial will now be adjourned for
judgment.  At any rate, as it looks now, judgment will not
be given before the month of November of this year.  You
will receive approximately two weeks' notice before the date
when judgment will be given.

[The Session closed at 14:30.]

The Judgment was read in sections by the Judges over five
sessions of the Court: Session 115, December 11, 1960,
Morning, Session 116, Afternoon, Session 117, Evening,
December 12, 1961, Session 118, Morning, and  Session 119,

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