The Trial of Adolf Eichmann: Judgment
(Part 64 of 70)

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 organizations.

To quote the decisive findings of the International Military Tribunal:

(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 organizations.

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 Deeds

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