Archive/File: people/e/eichmann.adolf/transcripts/Sessions/Session-112-05 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 matters. 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 nonetheless." 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 bloodshed. 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 Prosecution? 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 heard? 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 responsibility." 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 itself.
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