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Last-Modified: 1999/05/27

213. There is no doubt that these 93 children were deported
and that the Accused took part in their deportation.
Krumey, who, at the time, was head of the Centre for the
Change of Residence, referred a question to the Accused,
asking what to do with these children (T/1093 in regard to
81 children, and T/1098 in regard to 12 children).  He also
spoke to the Accused in person (in T/1093 it says
"Reference: a conversation with SS Obersturmbannfuehrer
Eichmann").  Although the instructions given by the
Accused's office in connection with the 81 children are not
before us, we have before us the instructions (signed by
Guenther) in connection with the twelve children (T/1099).
It says that the children are to be handed over immediately
to the Lodz Stapo, "which has received further orders."
Since, in accordance with these orders, the children were
handed over to the Lodz Stapo, and since a cable of the RSHA
is also mentioned in the first confirmation dated 2 July
1942 in connection with the 81 children, the inescapable
conclusion is that the same orders which were given by the
Accused's Section concerning the twelve children in exhibit
T/1099, were also given in connection with the 81 children.
No importance is to be attached to the fact that it was
Guenther who signed the cable T/1099, nor to the Accused's
denial, but the action taken by his Section is to be
considered as the Accused's action, especially since his
personal activity in this matter is evident from the
above_mentioned remark about the conversation held with him
which appears in exhibit T/1093.

On the other hand, it has not been proved that the Accused's
Section had any part in the murder of these 93 children, and
it has also not been proved beyond reasonable doubt,
according to the evidence before us, that they were
murdered.  The Attorney General proposes that the Court
conclude this from:

(a) The letter (or cable) dated 12 June 1942, number 346/42,
signed by Fischer, attached to the evidence by Krumey, in
which it is stated:

     "The children who are not suitable for Germanization
     are being transferred there, and they are to be sent on
     in the proper way through the Polish camps situated
     there... The children bring with them nothing but what
     they have on their persons.  There is no need to take
     special care of them."

(b) The letter T/1094, where Krumey writes that he applied
in this matter to Section IVB4, assuming "that these were
intended for special treatment."

The representatives of the Attorney General and of the
Accused were present at the interrogation of the witness
Krumey, but it is not clear to us who showed Krumey the
above letter, dated 12 June 1942.  Krumey's reaction to the
letter was that he did not remember the various letters sent
to him on the subject (p. 8), but did not doubt its
authenticity.  But then the contents of the letter are not
unequivocal, especially since it was not sent by the
Accused's Section, but by the Commander of the Security
Police in Prague, and the question whether, as regards non-
Jews, the Commanders of the Security Police were subordinate
to the Accused's Section is not clear to us.

As to the term "special treatment" - in the year 1942 this
most certainly had only one meaning when used in regard to
Jews: If in the year 1942 Jews were taken for special
treatment, they were killed.  The same unequivocal meaning
has not been proved to us in regard to others.  Counsel for
the Defence submitted to us forms N/108 in connection with
"special treatment" for Poles.  There is ground for the
assumption that in one of the forms the reference is to
killing, in connection with a Pole who is not "suitable for
Germanization."  But a doubt still persists, especially as,
according to the letter of 12 June 1942 cited by us above,
the children are to be sent to camps for Poles.  We know
that Poles from Zamosc were sent to extermination, but it
has not been proved that Poles sent from Lodz were similarly
treated.  Finally: The term "special treatment" was used by
Krumey, and he assumed that this is what was in store for
the children.  The term does not appear in cable T/1009 sent
by the Accused's Section.

In conclusion, as regards the Accused, it has been proved
only that he participated in the expulsion of the 93
children of Lidice from their homeland, and he thus took
part in the commission of a crime against humanity.

Counts 13-15 of the Indictment

214. In the three last counts of the indictment, counts 13-
15, the Prosecution charges the Accused with offences
against Section 3 of the Law, viz., membership in SS
organizations, the SD and the Gestapo, which are, according
to the Prosecution's submission, hostile organizations
within the meaning of this Section.

The Accused's membership in those organizations is not in
dispute, but the Defence puts forward two arguments:

(a) The Prosecution must prove that these organizations were
criminal organizations, and this has not been proved.

(b) Our law obliges the Court to punish without proof of
guilt, and the Court should refrain from applying such a
law; neither is it authorized to fill in the gaps in the law
by searching for, and perhaps finding, guilt, where the law
itself ignores its existence and the need for proof.

According to our system of law, the Court is not allowed to
ignore the legislator's will, as is proposed by Counsel for
the Defence in his second argument.  But, in fact, this is
not a case of charge without guilt, and the answer to
Counsel's two arguments is to be found in the wording of
Section 3 itself.

The definition of "a hostile organization" in Section
3(b)(1) is not self-contained, but refers us to findings of
the International Military Tribunal.  That Tribunal did not
merely declare that the SS, the SD and the Gestapo were
criminal organizations, but it laid down additional
conditions without which nobody can be found to be liable
because of his membership in the above-mentioned

To quote the decisive findings of the International Military

(a) In regard to the Gestapo and the SD, the English
edition, vol. 22, p. 511 (German edition, vol. 1, p. 301):

     "The Tribunal declares to be criminal within the
     meaning of the Charter the group composed of those
     members of the Gestapo and the SD holding the positions
     enumerated in the preceding paragraph who became or
     remained members of the organization with knowledge
     that it was being used for the commission of acts
     declared criminal by Article 6 of the Charter, or who
     were personally implicated as members of the
     organization in the commission of such crimes."

(b) In regard to the SS, ibid. at p. 517 (German edition,
ibid., p. 307):

"The Tribunal declares to be criminal within the meaning of
the Charter the group composed of those persons who had been
officially accepted as members of the SS as enumerated in
the preceding paragraph who became or remained members of
the organization with knowledge that it was being used for
the commission of acts declared criminal by Article 6 of the
Charter, or who were personally implicated as members of the
organization in the commission of such crimes ..."      In
both findings, we have emphasized the last words, because
upon them we are about to base the conviction of the Accused
in regard to these counts in the indictment.  The crime of
extermination of the Jews during the War was expressly
declared by the International Military Tribunal also to be a
crime within the meaning of the London Charter.  In the
present Judgment we have found that the Accused personally
participated in the commission of this crime, and there is
no doubt that he did so participate in its commission in his
capacity as a member of the Gestapo, the SD and the SS;
hence his criminal responsibility as a member of those

215. Therefore, our answer to the two arguments by the
Defence is: The Prosecution did not have to prove the
criminal nature of the three organizations as such, because
the charge is not merely of membership in these
organizations.  The Prosecution had to prove the Accused's
membership in these organizations - and this membership is
not in dispute - and in addition that the Accused took part
in the commission of crimes, as a member of these
organizations - and this has been proved.

The Attorney General mentioned that under Section 13(b) of
the Law the offence according to Section 3 is prescribed
after the lapse of twenty years.   The decisive time in this

case is May 1940, because it was in May 1960 that the
warrant for the arrest of the Accused was issued in Israel
for the first time.  It has been proved that after May 1940,
as a member of the three hostile organizations mentioned in
the indictment, the Accused took part in the commission of
crimes.  In fact, most of his criminal activities were
committed after this date.  Therefore he is to be convicted
also on counts 13-15 of the indictment.

Obedience to Orders, and the Accused's Attitude Towards his

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