The Trial of Adolf Eichmann: Judgment
(Part 61 of 70)

199. The third count in the indictment refers, as has been mentioned, to the entire period of the Nazi regime, and should therefore be divided into two periods of time: the one including the first two stages of the persecution of the Jews, and the other, the last stage, beginning in the summer of 1941. Here, too, the accusation is of a crime against the Jewish People, this time by causing serious bodily or mental harm to Jews.

In connection with the first stage, until the outbreak of war, we have already said that the Accused's participation in the activities mentioned in section (d) of this count has not been proved (sections 184, 185). In connection with the second stage, we have held, out of doubt, that at that time the intention to exterminate did not yet exist in the mind of the Accused (section 186). As to the last stage - beginning August 1941 - there is no doubt that causing serious bodily harm to Jews was a direct and unavoidable result of the activities which were carried out with the intention of exterminating those Jews who remained alive, for instance the witnesses to the catastrophe who have given evidence in this case. In the language of the third count, section (c), it has been proved that,

"...the Accused, together with others, caused this grave harm by means of enslavement, starvation, deportation and persecution, confinement to ghettos, to transit camps and to concentration camps - all this under conditions intended to humiliate the Jews, to deny their rights as human beings, to suppress and torment them by inhuman suffering and torture," and all this with the intention of exterminating the Jewish People.
The fourth count speaks of devising measures intended to prevent child-bearing among the Jews. The time is limited to the period beginning in the year 1942. In this count, the Attorney General apparently did not mean that part of Heydrich's speech at the Wannsee Conference where he talked about segregating the sexes during the deportation of the Jews to the East. In any case, we do not think that the prevention of child-bearing was an explicit part of the Final Solution plan, as put by Heydrich before the participants at the conference, although action against the Jews in preparation for the Final Solution was in many places accompanied by segregation of the sexes.

We shall, therefore, confine ourselves to the concrete matters mentioned in section (c) of the fourth count - the Accused's order to prevent child-bearing in Terezin has been proved, though it has not been proved that he took part in giving directives for the prevention of child-bearing in the Kovno Ghetto (section 159). In connection with the sterilization of the descendants of mixed marriages (Section (c)(3) of the fourth count), as stated above, the negotiations conducted with the participation of the Accused did not reach a final result, and we do not know if the means there discussed were actually employed (section 158). In Section 1(b)(4) of the Law, it says "devising measures, etc.," seemingly along the lines of Section 2(d) of the Convention on the Prevention and Punishment of the Crimes of Genocide, wherein t

he expression "imposing measures" is used. We are of the opinion that "devising measures" here means actually putting these measures into effect, at least to the stage of giving orders to carry them out. This has not been proved against the Accused in the matter of sterilization.

200. Counts five, six and seven of the indictment charge the Accused with crimes against humanity committed against Jews. According to Section 1(a)(2) of the Law, "crime against humanity" means one of the following acts: "murder, extermination, enslavement, starvation, and deportation of civilian population; and also persecution on national, racial, religious or political grounds."

The fifth count attributes to the Accused acts mentioned in the first part of the definition (murder, extermination, enslavement, starvation or deportation), and the sixth count includes everything mentioned in counts 1-5, and charges the Accused that by carrying out all these actions, he persecuted Jews on national, racial, religious or political grounds, as mentioned in the second part of the definition.

201. It is clear that both parts of the definition of the crime against humanity apply to all the activities of the Accused against the Jews at the final stage, as from August 1941, and that at this stage he participated in all the inhuman acts mentioned in the section of the Law (murder, extermination, enslavement, starvation and deportation of civilian population). Causing serious damage to the Jews, bodily or mentally, was also an inhuman act committed against the civilian population. All his acts carried out with the intent of exterminating the Jewish People also amount, in fact, to the persecution of Jews on national, racial, religious and political grounds.

In addition, the Accused will also be convicted (unless justification for his acts can be found) of crime against humanity, instead of crime against the Jewish People, by reason of his activities in the Central Offices for Jewish Emigration in Vienna, Prague and Berlin until October 1941 (sections 63-66, 80) and by organizing deportations to Nisko, the evacuation of Jews from territories annexed to the Reich in the East (the Warthe district, etc.), the expulsion of the Jews of Stettin and the expulsion of the Jews of Baden and the Saar- Palatinate (sections 72-75, 77). It should be pointed out that crimes committed during the first stage, before the outbreak of World War II, also come within the definition of crime against humanity, according to Section 1(a)(2), which refers to the entire period of Nazi rule, beginning on 30 January 1933 (see Section 16 of the Law).

202. The seventh count refers to the plunder of the property of the victims, and in this connection charges the Accused with a crime against humanity. In this regard, Counsel for the Defence put forward a legal argument that, according to the definition in the Law, plunder of property is not included in the list of acts constituting crimes against humanity. The Attorney General argued that plunder of property comes within the definition of "any other inhuman act committed against any civilian population," as stated in Section 1(b) of the Law.

It is to be pointed out that "plunder of public or private property" is especially mentioned in the list of acts which come within the definition of war crime. May we read into the general concept of "any other inhuman act" something expressly mentioned by the legislator in proximity to the same part of the Law?

203. The courts at Nuremberg were already troubled by the question before us when they had to interpret similar provisions in the London Charter and in Control Council Law No. 10. In the case of Flick (Green Series, Vol. 6), the court expressed the opinion that the plunder of Jewish industrial property on the basis of discriminating laws in regard to the confiscation of Jewish property, could not be considered a crime against humanity. The court there says (supra, p. 1214):

"Such use of pressure, even on racial or religious grounds, has never been considered to be a crime against humanity."
But it adds:
"A distinction could be made between industrial property and the dwellings, household supplies and food supplies of a persecuted people. In this case, however, we are only concerned with industrial property."
In "The Ministries Case" (Green Series, Vols. 13-14), the same question was considered in the matter of the Minister of Finance, Schwerin von Krosigk. A majority of the judges in this case convicted Schwerin-Krosigk of war crimes and of a crime against humanity, by reason of his participation in the notorious meeting held by Goering after the Crystal Night, at which it was decided to impose upon the Jews a levy of "expiation money" amounting to one billion Marks; publication of regulations for the carrying out of this order; participation in the issue of directives for the confiscation of the property of deported Jews; and the publication of Regulation No. 11 under the Citizenship Law, in regard to the confiscation of Jewish property upon crossing the Reich frontier; and also participation in the realization of the confiscated property which fell into the hands of the Germans when the Warsaw Ghetto was evacuated. One of the judges dissented, saying (vol. 14, p. 930):
"It cannot be a crime against humanity, because merely depriving people of their property is not such a crime. There must be some maltreatment of the person ..."
The same court reconsidered its judgment and confirmed the conviction of Schwerin-Krosigk. This time the court uses the following language (vol. 14, p. 991):
"...nor can there be any doubt of the fate of the vast majority of the Jews thus robbed. Arrest, imprisonment in concentration camps, theft and death were essential parts of the same horrible scheme."
The International Military Tribunal, which tried the main war criminals, also touched upon the question before us in the matter of the Minister of Economy and President of the Reichsbank, Funk. Amongst his deeds, the court mentions that, in the year 1942, an agreement was concluded between him and Himmler, according to which the Reichsbank was to receive from the SS jewellery and sums of money from the property of the victims of concentration camps, and that he issued instructions to his officials not to ask any questions in connection with this arrangement (English edition, vol. 22, p. 551). This served as one of the grounds for the conviction of Funk of a war crime and crime against humanity.

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