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(e) Finally, July 1944.  The Appellant's tour of duty in Hungary.

At the beginning of July 1944, the dormant conscience of the
world begins to be aroused on hearing of the total murder
the Nazis were perpetrating within European Jewry, and
President Roosevelt, jointly with the Pope and the
Governments of Sweden and Switzerland, urged Regent Horthy
to stop the transport of Jews to Auschwitz, and submitted
proposals for the emigration of Jews to countries outside
Hungary.  That request is soon followed by effective acts:
American aircraft bomb Budapest heavily, and on 7 July
Horthy vetoes the continued deportation of the Jews.  At
that time he was contemplating dismissing the Sztojay
cabinet and constituting a new cabinet.

Horthy's overlords, the Germans, are astounded at this
`treason,' but they are no longer as strong as before, for
meanwhile Allied forces have landed on the coast of
Normandy, while on the eastern front the great Russian
offensive has begun.  They are compelled, therefore, to
swallow the bitter pill, and begin making concessions.

Indeed, three days after Horthy's veto, Ribbentrop sends
Veesenmayer a telegram full of new notes of softness and
appeasement (N/85 of 10.7.44).  It says:

"The Fuehrer has acceded to my proposal and has decided to
meet the Hungarian Government re the proposal of foreign
governments on the transfer of Jews to countries abroad.
Therefore, the requests of the Governments of Sweden,
Switzerland and the United States may be granted, assuming,
as we do, that those governments will admit into their own
territories the said groups of Jews - namely into Sweden,
Switzerland and the United States.  The transfer of Jews to
Palestine should be avoided, if at all possible (waere, wenn
irgend moeglich, zu vermeiden), in view of our policy
towards the Arabs."

But the Appellant would not rest.  His ire was aroused over
that permission granted for emigration, and he begins
combatting the Foreign Ministry itself, leaving no stone
unturned to sabotage the rescue plan.  We must not forget
that Ribbentrop was a Minister of the German Reich, that the
Appellant's post was by some four or five grades inferior to
that of a cabinet minister, and that the `chain of command'
on the `hierarchy ladder' in relation to the Appellant was
Himmler (Minister of the Interior) - Kaltenbrunner (Chief of
RSHA) - Mueller (Head of Department IV) - some other officer
(Chief of Group IVB) - the Appellant (Head of Section IVB4).
Nevertheless, he views himself as of equal rank with
Ribbentrop, and as one fully qualified to compete with him
when his own exclusive domain is at stake, namely the
implementation of the Final Solution of the Jewish Question
in Europe.

He begins to act, as is his wont, in all possible ways.
First he detects a `clerical error' in the affirmative
German reply to the proposals of foreign countries for
emigration.  He writes to his principal assistant, Guenther,
in Berlin, to draw his attention to the fact that the German
reply to the proposals of the foreign countries was not
phrased with proper clarity, a defect that has caused, or is
likely to cause, grave trouble:

"In the German note in reply, emigration to Palestine is not
strictly forbidden, but it says that emigration to Palestine
must be avoided as far as possible.  While it has so far not
become apparent that emigration to countries other than
Palestine had been tried by the foreign neutral legations
concerned with the matter, they are already, from the
outset, furthering emigration to Palestine.  The German
Embassy here has so far not stood in the way of these
efforts, as it is believed that emigration to Palestine was
not rejected by Germany in principle.  We, for our part, saw
to it that also on the part of the Embassy here, everything
possible should be done, in order to delay the emigration
efforts, and in the end to prevent them, after the
evacuation of the Jews was continued.  This step would be
rendered possible all the more, since every emigrating Jew
has to be in possession of a German visa or a special
transit visa for departing from Hungary, issued by the
German military authorities through the German Embassy.  In
order that emigration to Palestine might be prevented more
efficiently, it seems to us to be useful to formulate with
greater clarity and greater stringency the consent of the
German Reich, which was given on this point in the first
place, so that emigration to Palestine within the framework
of this operation will not receive Germany's consent"
(T/1216 of 24.7.1944).

To put it simply: Here is a piece of disguised information
concerning the Embassy to the RSHA, or to the Foreign
Ministry through the RSHA, and an `authentic' interpretation
of Hitler's assent given on Ribbentrop's recommendation, as
stated above.

Simultaneously with all this, he takes a parallel course of
action, rather less interpretive and more sly, with the
object of total sabotage of the implementation of that
assent, and so as to confront Ribbentrop as well as Hitler
with an `established fact,' and leave no possible crack in
the door even to emigration of Jews to countries other than
Palestine.  We find, indeed, on the morrow of that day, on
25.7.1944, Veesenmayer telegraphing to Berlin to report,
inter alia, that:

"The chief of the SD's local Sondereinsatzkommando for the
Jews, SS  Obersturmbannfuehrer Eichmann, has expressed his
opinion that as far as he is aware, the Reichsfuehrer-SS
does not agree, under any circumstances, to the emigration
of Hungarian Jews to Palestine.  The Jews who are under
consideration constitute, without exception, valuable human
material from a biological point of view.  Many of them are
veteran Zionists, whose immigration to Palestine is
definitely undesirable.  It is his intention, in view of the
Fuehrer's decision which had been brought to his notice, to
report to the Reichsfuehrer-SS and, if necessary, to ask for
a renewed decision by the Fuehrer.  It was further settled
with Eichmann that if additional deportations of Jews from
Budapest are approved, they must try to carry them out
suddenly (schlagartig) and speedily, so that the deportation
of the Jews being considered for emigration should be
completed already before  the formal arrangements are
carried our.  The legations concerned had already been
informed that the planned operation could obviously only
relate to those Jews who were still in the country.  With
this object in view, they would also try to induce the
Hungarian Ministry of the Interior to give a negative reply
to the Swiss proposal, by which the Jews registered for
emigration would be concentrated in special camps.  As far
as this plan was concerned, Eichmann was considering - in
the event of permission for emigration to Western countries
- to prevent the progress of the transports by taking
appropriate steps, for example on French territory" (T/1215,
pp 2-3).

Comment is superfluous!

If that were not all, there follows the Appellant's meddling
in all the internal affairs of the camps, which deals the
last blow to the contention that his duties were confined to
`the transportation of the sentenced' and no more.  It has
been proved in the Wetzel papers (T/308 and appendices) that
in October 1941 the Appellant did "agree to this procedure,"
in other words, to the killing of those shipped eastwards
(Riga, Minsk and Lodz) in gas vans.  In T/37 he did not deny
this, but admitted that Wetzel came to see him "on this
matter" (ibid., p. 2339).  It was only in his evidence to
the Court that he began to disclaim responsibility for this,
but the District Court did not accept this late denial.  His
application to us to summon Wetzel as a rebutting witness
has been rejected by our ruling of 29.3.62, and the grounds
therefor have been set out in Section II, paragraph 4 of
this Judgment.

Again, the introduction of the use of Zyklon B in Auschwitz
was not effected without the Appellant's participation.
Hoess relates this in his note (T/90); in T/37 the Appellant
attempts to hold Guenther responsible for this: "Guenther
has secured for himself some sort of gas" (ibid., p. 387).
But the witness for the Defence, Huppenkothen, Chief of
Group IVE of the RSHA, says that he knew nothing of any
duties allegedly assigned by Mueller to SS Sturmbannfuehrer
Guenther (Huppenkothen's testimony, p. 9). It is true that
the direct negotiations with the representatives of the
company that supplied the gas were conducted by Guenther
(see Gerstein papers, T/1309, p. 1 of the French text,
together with the detailed bills of the Degesch Company in
Frankfurt, T/1313a, English translation, p. 3).  But it was
inconceivable to the District Court, and it is equally
inconceivable to this Court, that those negotiations by a
member of the staff of Section IVB4 were conducted behind
the back and without the knowledge of the Appellant, the
Head of the Section.  The Appellant himself contradicts
himself to a large extent in his references to the identity
of the person who charged Guenther directly with the task of
obtaining the gas; now he attributes this to Mueller, now to
Globocnik (cf. T/37, pp. 2274, 3340), and the District Court
was right in holding the Appellant responsible for the
supply of Zyklon B to Auschwitz.

Neither should we omit this particular fact: When the
Appellant visited Theresienstadt on duty, he personally
selected the candidates for extermination in Auschwitz
(evidence of Diamant to which the Court gave credence:
paragraph 152).  Learned Counsel's expression of surprise
(in paragraph 68 of the Statement of Appeal) at the fact
that the Appellant was dealing with such `paltry matters' is
pointless, in view of the other, truly insignificant, duties
which the Appellant performed in that "Ghetto of the Aged."

17. The facts indicated above also constitute a decisive
rebuttal of learned Counsel's third contention, namely that
the Appellant was acting on orders from his superiors.  We
here refer to the factual aspect of the contention, for the
legal aspect of it has already been dealt with in Section 1,
paragraph 15, of this Judgment.

As a matter of fact the Appellant did not receive any orders
`from above' at all; it was he who was supreme, he who was
the commander in all that pertains to Jewish Affairs.  He
ordered and commanded, not only without orders from his
superiors in the hierarchy of the service, but also, at
times, in absolute conflict with such orders, as already
explained above.  The following fact should go a long way to
illustrate his unstinting dedication to the cause of the
Final Solution, and to what degree he attempted to outdo and
surpass even his `illustrious masters.'  In April 1945,
about a month before Germany's total collapse, at a time
when even the Reichsfuehrer-SS, in quest of an alibi for
himself, already begins to weigh `more humane methods' of
persecution of the Jews, he - Eichmann - is still uneasy as
to the advisibility of these methods, and it is only with
deep regret and emotional self-restraint that he brings
himself to comply with Himmler's orders, as he stated to the
representative of the International Red Cross (T/865).  It
is clear that the idea of the Final Solution was not his
own, but the Fuehrer's.  Yet that idea might not have
assumed so satanic and infernal an expression - in the
bodies of millions of tortured and martyred Jews - but for
the thorough planning, the zeal, the fanatical enthusiasm,
and the insatiable bloodthirstiness of the Appellant and
those who did his bidding.  We do not minimize by even one
iota the terrible guilt that rests on the heads of many,
many others; no one who gave any help, active or passive,
direct or indirect, no matter how insignificant such help,
to Nazi gangsterism in Europe, is to be cleared or
exculpated.  But we here in this Court are concerned with
the Appellant's individual guilt, and as to him, it has been
proved with unchallengeable certainty that he took his place
not only among those who were active in the implementation
of the Jews of Europe, but also among those who activated
others in this task.  The Appellant was no nondescript
entity amongst the activators, but was among the leaders and
played a central and decisive part among them all.

18. Thereby collapses the fourth contention of Counsel for
the Appellant, namely, the contention of `necessity.'  He
(the Appellant) was not coerced into doing what he did, and
was not in any danger of his life for, as we have seen
above, he did much more than was demanded of him, or was
expected of him by those who were his superiors in the chain
of command.  No one would have taken him to task, and he
would certainly not have been brought to the gallows, had he
- to give one example - based himself on the assent of
Hitler and Ribbentrop to the emigration to Sweden and
Switzerland of a few tens of thousands of Jews (see
paragraph 16 (e) above), and had he not undermined it so
wickedly and slyly.  As we have seen above, he performed a
great many `volunteer acts' of this kind.  In the higher
echelons of their organization, the Nazis were never using
the services of people who did their job under irresistible
compulsion.  That would have impaired the efficiency of the
work to be done, and they had no shortage of enthusiastic
zealots, people with strong nerves who do not break down; in
other words, people stripped of any human feelings.  This is
proved by the thousands of arch-murderers, the members of
the Operations Units and execution squads, who operated near
Riga, Minsk, Kiev (Babi Yar) and other places, who killed
about a million Jews, each by one, individual shot, from the
hand of the murderer to the nape of the victim's neck,
without their knees shaking and their nerves breaking down
(see statement of Otto Ohlendorf at Nuremberg, T/312).  Had
the Appellant demonstrated, at any stage, the slightest
displeasure or heart-searching or even lack of enthusiasm
towards the implementation of the Final Solution, his
superiors would very gladly have dismissed him, and had him
replaced by some other person, more `qualified' than
himself.  Thus on 4.10.43 Himmler delivered a long address
in Posen, in which he said, inter alia:

"If anyone thinks that he cannot undertake to carry out an
order (given him) he must say honestly: `I cannot undertake
this task, please relieve me of it.'  Then, in most cases,
the order would probably come: `You must nevertheless carry
this out'; or (the commander) might think: `This man has
suffered a nervous breakdown, he is weak.'  In that case we
may say to him: `All right, you had better resign'"

The Appellant never showed repentance or weakness or any
weakening of strength or any weakening of will in the
performance of the task which he undertook.   He was `the
right man in the right place,' and he carried out his
unspeakably horrible crimes with genuine joy and enthusiasm,
to his own satisfaction and the satisfaction of all his
superiors.  The conditions of `necessity' provided in
Section 18 of the Criminal Code Ordinance therefore were not
in any way present here, and the Appellant would have been
liable to the death penalty under Section 1 of the Nazis and
Nazi Collaborators (Punishment) Law, 1950, even if the
defence provided by Section 18 of the Ordinance had not been
excluded by Section 8 of the Law, in respect of offences set
out in that Law.  All the more so now that that defence has
been excluded.  For no one has even so much as suggested
that the Appellant "did his best to reduce the gravity of
the consequences of the offence" or that he did what he did
with intent "to avert consequences more serious than those
which resulted from the offence" (sub-sections (a) and (b)
of Section 11 of the Law).

There was here, therefore, neither any `necessity' within
the meaning of Section 18 of the Ordinance, nor any
`extenuating circumstances' within the meaning of Section 11
of the Law, and the Appellant deserves the punishment to
which he was sentenced by the District Court.

In deciding to confirm both the Judgment and the sentence
passed upon the Appellant, we know only too well how utterly
inadequate this death sentence is as compared to the
millions of deaths in the most horrible ways he inflicted on
his victims.  Even as there is no word in human speech to
describe deeds such as the deeds of the Appellant, so there
is no punishment in human laws sufficiently grave to match
the guilt of the Appellant.

But our knowledge that any treatment meted out to the
Appellant would be inadequate - as would be any penalty or
punishment inflicted on him - must not move us to mitigate
the punishment.  Indeed, there can be no sense in sending to
the gallows, under the Nazis and Nazi Collaborators
(Punishment) Law, one who killed a hundred people, while
setting free, or putting under guard and then keeping under
close guard, one who killed millions.  When, in 1950, the
Israel legislature provided the maximum penalty laid down in
the law, it could not have envisaged a criminal greater than
Adolf Eichmann, and if we are not to frustrate the will of
the legislature, we must impose on Eichmann the maximum
penalty provided in Section 1 of the Law, which is the
penalty of death.

The fact that the Appellant - by a variety of ruses, escape,
hiding, false papers, etc. - succeeded in evading the
gallows that awaited him, together with his comrades, at
Nuremberg, also cannot afford him relief here, when at long
last he stands his trial before an Israeli Court of Justice.

We have therefore decided to dismiss the appeal both as to
the conviction and the sentence, and to affirm the judgment
and the sentence of the District Court.

Given this 25th day of Iyar 5722 (29 May 1962), in the
presence of the Appellant and his Counsel, Dr. Servatius,
and of the Attorney General, Mr. G. Hausner, and Assistant
State Attorneys, G. Bach and Z. Terlo.

Yitzchak Olshan

Shimon Agranat     Yoel Sussman      
Deputy President   Justice

Moshe Silberg      Alfred Witkon
Justice            Justice

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