The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of Adolf Eichmann
Session 110
(Part 4 of 7)

[Attorney General, Continued]

All that is required in order to prove the agreement of the conspirators, is that there should be one declared intent to promote the joint purpose by concerted action. This is the quotation from Kenny on page 2.

"The conspiracy may be joined for a period limited in advance or a one-time commission of an act, or it may be set up for an indeterminate period, and for a purpose to be accomplished by acts which are not pre- determined, or anticipated in advance. From a judicial point of view such a conspiracy remains in effect as long as it has not been accomplished, and each one of the conspirators is presumed to continue as a party to the conspiracy, unless positive evidence has been adduced that he has withdrawn from it."
Here I have quoted the words of Mr. Justice Agranat in the Heruti case (page 5 of the booklet) which is the judgment of the majority. But I presume that the two judges, who dissented from the majority opinion, also did not disagree with the principle enunciated in that doctrine. This is also the English doctrine as it appears in Kenny, 17th edition at page 396 (page 6 in the booklet).

In his judgment in the Heruti case, Justice Agranat goes on to say:

"The continuity of the criminal conspiracy shall be deemed to have been proved prima facie once its existence has been proved at any point in time."
One of the basic aspects of the principle is that the criminal should join the conspiracy of his own free will. In the case before us the problem might well arise: Will the fact that Eichmann remained as one of the company of conspirators apply also to the period in which - as he maintained - he was a soldier complying with orders? I shall come back to a discussion of the fact involved in Eichmann's status and the fulfilment of his duties. At this stage, and for the sole purpose of the legal argument on this point, let me assume, for his benefit - although I reject this assumption completely - that indeed he was subject to military discipline, and that he was not a free individual able to rid himself of it. He maintains that his joining the Nazi Party, whose extreme anti-Semitic platform was known to everyone, as well as his entering the ranks of the SD and taking upon himself the various tasks in which he dealt with Jewish affairs, were undertaken of his free volition. In his cross-examination he says that the only front on which he was active, was the war against the Jews. And how he did this in the first stage - this I have already described.

Presiding Judge: There was some argument to the effect that he joined the SD by mistake.

Attorney General: That is what he said - that he joined the SD by mistake. At any rate, this was in the period before the War, and certainly not in a military context, and it was assuredly not under duress, from which he was unable to free himself, that he continued to remain in the SD. He says that during the period of the War, when he was subject to military discipline, he no longer had any alternative. We shall, therefore, discuss these two periods separately.

His activity in the enslavement and expulsion of the civilian population and in persecution on racial and political grounds in the first period, constituted crimes against humanity, as defined in Section 1 of the Nazis and Nazi Collaborators (Punishment) Law 5710-1950, which on this issue closely resembles the definition of that crime in the charter of the International Court which is annexed to the London Charter of 1945, and also in Control Council Law No. 10.

My contention is that, already at that time, the Accused acted with the further intention to harm the Jewish People and destroy it, at least partially, and that this is the meaning in this connection of the arrests in Dachau and Buchenwald and preventing the release of detainees from these camps, and making such release conditional upon departure and emigration and the surrender of their passports.

The Accused maintains that at the time when the plotting authorities began using other methods, his heart was not in it, and from that time onwards he performed his duties under duress under the orders he received, and being forced to do so because of his oath to his Leader and to the flag.

Clearly, if he remained a partner of his own volition in the extermination operation, he is thus responsible for the evil deeds of his accomplices everywhere, by virtue of the laws of conspiracy. This is similar to a man who joins a band of thieves whose purpose is to carry out ordinary thefts. One day, the head of the gang decides that, from now on, they will use arms for perpetrating their crimes, and in the course of one of the burglaries a guard is murdered at a place which some members of the gang have broken into. Nobody will contest the point that all the members of the gang who remained with it after the decision to use arms, and even those who were performing auxiliary functions, such as storemen, drivers or those drawing up time-tables for transportation - will be punishable as accomplices to the murder.

I am well aware, Your Honours, that all the examples I might give, and all the references I might cite, will sound strange. For what example, what reference, what precedent can there be in respect of what we have heard here? But in this legal argument, before a Court consisting of human beings, I am not able to present my case by relying on precedents which, with all their horror in a normal criminal case, are of almost no significance whatsoever, compared with what has been brought to light here.

And what is the position of a man who joined a criminal gang and continued to be a member under coercion? A decisive reply on this issue is contained in the judgment of the International Military Tribunal at Nuremberg when it dealt with the subject of declaring aggressive war (Blue Series, Vol. 1, p. 226):

"The argument that such joint planning does not prevail in circumstances where there is a total dictatorship, is without foundation. A plan, in executing which a number of people take part, is still of the nature of a plan, although it has been conceived by one of them; and those putting the plan into effect do not exonerate themselves by showing that they acted in accordance with the orders of the man who conceived it. Hitler could not have conducted an aggressive war on his own. He had to depend upon the collaboration of politicians, army generals, diplomats and businessmen. When they extended their co-operation to him, being aware of his objectives, they turned themselves into partners in the plan which he had initiated. They are not to be regarded as innocent of the crime because of the fact that Hitler used them, as long as they were conscious of what they were doing. The fact that they were assigned to their missions by a dictator does not absolve them of responsibility for their deeds. The relationship between a leader and a follower does not negate liability here, just as it does not do so in the framework of the despotic rule of organized crime on a local scale."
The case of a despotic organization, which does not have international ramifications, but operates on a local scale, as the Nuremberg judgment says, was dealt with by the President of the Supreme Court in his judgment in Criminal Appeals 11/58 in the matter of Menkes versus the Attorney General: (page 8 of the booklet).

Before passing on to my next argument, I shall reply to a possible contention of the Defence. The Defence might claim that at Nuremberg the argument regarding conspiracy to commit a crime against humanity was not accepted. This is true. The reason is that the Charter of the International Military Tribunal and the Control Council Law No. 10 which provided the legal basis for the establishment of the Military Tribunals, defined specific crimes, legally formalized upon the principles of International Law which had always been in existence, but which were then formulated for the first time. They defined conspiracy to declare war as a specific crime, whereas they did not define conspiracy to perpetrate crimes against humanity as such.

Hence, these judgments were given at Nuremberg, but such is not the situation in regard to the Nazis and Nazi Collaborators (Punishment) Law 5710-1950, where we view it as part of the law of this country, in which the principle of criminal conspiracy applies as part of our substantive law and, when taken in conjunction with Section 1, it is clear that anyone forming a conspiracy to commit crimes against the Jewish People or against humanity, or to commit war crimes will be guilty under the general principles. In other words: The London Charter delineated the legal scope of the definition of the crimes, and the International Military Tribunal could not go beyond this scope, in the same way as other military courts were subsequently unable to depart from the limitations of the Control Council Law No. 10, where there was no such definition. As distinct from this, in our law, the Nazis and Nazi Collaborators (Punishment) Law 5710-1950, the crime and the totality of its circumstances must be interpreted according to the other general principles of our law, according to the whole range of our rules of evidence and the entire substantive ramifications.

As the Court will note on page 5 of the booklet, at the end of the judgment in the Kaiser case, Justice Goitein said:

"One last observation on this question: as a matter of fact the aforesaid substantive principle does not contain any revolutionary innovation as regards the probative principle which provides that evidence against one of the conspirators shall serve as evidence against the other conspirators, since the second conspirator will be convicted on the basis of this evidence of the crime of conspiracy, and the practical outcome is substantive liability."

"Hence the learned judge in the lower court correctly convicted each one of the appellants on the counts of the indictment, even if the active participation of each one of them in a specific criminal act was not proven in every instance."

Presiding Judge: What is this Wright collection that is mentioned here in the booklet?

Attorney General: That is the compilation of the United Nations War Crimes Commission, which actually consists of fifteen volumes, but all of them have been bound together into five volumes, and they are available in the Court library.

Presiding Judge: Have we received them?

Attorney General: I believe so. We have them here and are prepared to make our collection available to the Court. At any rate the compilation is to be found in the Supreme Court library - that I know. This is the official edition of the United Nations Commission for the Investigation of War Crimes.

About the oath which required unswerving loyalty to Adolf Hitler, Justice Musmanno says in his judgment in the Concentration Camps case (Green Series, Vol. 5 at p. 1161):

"Each and every person who took this oath surrendered his personality, gave up the right to individual judgment and self-criticism, threw his understanding to the winds and exposed himself to the winds of moral irresponsibility. This was the poisonous root which brought forth the tree, under whose branches the horrible crimes were perpetrated."
The judgment goes on to say that such an oath, in itself, is an act of sacrilege and a foul crime, and cannot serve as a justification or an explanation for the crimes that were committed by virtue of this alleged loyalty.

To sum up, in order to remove all doubts, I have to say, at this stage, that the judgment of the Military Court of Appeals in the Kafr Kassem case A/279/58 - Ofer versus Chief Military Prosecutor - Criminal Appeals p. 362ff., and paras. 11 and 12 on pp. 377-378, did not change this doctrine. In the above-mentioned paragraphs, there is a discussion of the criminal liability of two soldiers who were present at the place where the offence was committed by other soldiers. The Military Appeals Court acquitted them of an offence arising out of this presence, since it held that their presence at the place was "in conformity with a legal order," and it was not proved that they had been involved in any way in the commission of the crime. Under such circumstances, mere presence at a place where a crime is perpetrated by others does not in itself amount to a criminal conspiracy, or to abetting a criminal act. In other words, as long as the soldiers acted under a legal order, it cannot be said that they had joined a criminal conspiracy. But from the substance of the judgment it is clear that if those soldiers had been present on the spot under an order which was patently illegal, then they, too, would have been participants in the criminal act. Hence, not only does the Kafr Kassem judgment not help the Accused, but its conclusions support the general principles I have quoted.


Presiding Judge: Mr. Hausner, please proceed.

Attorney General: In my previous remarks I assumed that the Accused had not been free to leave his post in the administration of the Section for Jewish Affairs in the Gestapo. But, in fact, there is no basis for this assumption. In practice such a possibility existed, had he so requested. Himmler himself, when addressing a conference of senior officers in Posen, hinted that, in these operations, if any officer wanted to be released, it would be best to pension him off, since he had proved in this way that his nerves had been weakened. But we also have actual proofs. In the Nuremberg judgment in Case No. 9 (page 40 in the booklet) which is an exhibit in his trial by consent of the parties, there is reference to the case of Noske whose rank was equal to that of the Accused; he refused categorically to carry out murderous instructions against the Jews. He did so openly; he was not shot, nor was he reduced in rank, nor was he even placed on trial. A certain amount of inconvenience was caused to him and nothing more.

Best, because of whom the anti-Jewish campaign in Denmark failed, did not suffer in consequence. Eichmann bears a grudge against him to this day for this failure, as is shown by his remarks in the police interrogation.

As for the Defence witness Six, what does he say? I quote:

"It was possible to be relieved of my command post in the Einsatzgruppen without the matter bringing in its train a court-martial, or a loss of rank, even though it was regarded as cowardly. There always existed the possibility of being released from the RSHA and asking for a transfer to the front, or to be freed in order to volunteer for some other job."
Eichmann admits that he never submitted a written request for a transfer, that no such request had ever been made to his commanding officer. He alleges that he had requested this of Mueller who was his immediate superior, and when Mueller turned it down, he did not appeal against his decision.

His long-standing friendship with Kaltenbrunner who brought him into the Party and the SS already before the Nazis acceded to power, enabled him to make a personal recommendation, outside the normal service channels, for the promotion in rank of Eichmann's colleague, Kraus (T/1431). Does it stand to reason that, if he had been loath to continue his murderous activity, he would have been able to ask his old friend for the favour of a transfer?

Hence, in point of fact, Eichmann's argument is based upon a falsehood. If his superiors had known that he wanted to go to the front, they would have been bound, according to Six, to let him go. That is what his witness testifies. I go further: If it had been felt that his heart was not in this tremendous undertaking, they themselves would have transferred him to another job. But he did not want that, and here is his statement to Sassen:

"I never requested a transfer to another post." Naturally, when I showed him the copy in Court, in Session 95, he denied having said such a thing.
According to his bosom friend, Hoess, he was obsessed with exterminating Jews. I shall discuss this mental attitude to the fulfilment of his task in the next section.

From the legal point of view this makes no difference either way, for the law is that no coercion or duress can exonerate a person from a charge of murder. You must not kill even when your own life is endangered - this is the principle according to Jewish tradition - for in case of bloodshed duress is no defence, as this is also the position according to our regular Criminal Law (Section 17 of the Criminal Code Ordinance, 1936), and this also applied in the trials of the war criminals. The courts in Germany itself no longer recognize duress as a legal defence.

On page 38 of our booklet the Court will find the following statement quoted from the judgment of the trials of the war criminals:

"Duress can seldom provide a defence, it will never do so unless the threat which is offered as a result of which the unlawful act is perpetrated is a threat of immediate harm of a degree far, far greater than that which would be created if the order were obeyed."
And, further on:
"There is, further, a defence which to some extent is akin to that of superior orders, and that is the defence which I may describe as the defence of `duress and coercion.' It has been said here that once the order for the execution of these soldiers had been given, it was impossible for any one of the accused to ignore it, and that the only way in which they could act was the way in which, in fact, they did act. Now that defence of `duress and coercion' is not a defence in law. You are not entitled, even if you wished to save your own life, to take the life of another."

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