The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of Adolf Eichmann
Session 112
(Part 6 of 6)

Attorney General: The commentary including that paragraph, I think we did submit.

Presiding Judge: You submitted the directives to the men of the SS, which refer to this point.

Attorney General: But it does include this paragraph.

Presiding Judge: However, not literally. It contains the substance of it, I think.

Attorney General: The Court will find that paragraph in Volume 11 of Wright, page 47, the paragraph verbatim.

This, then, is the law which applies - under German military law, too - to Adolf Eichmann, if we accept his maximalist argument that he was a military man, subject to military authority, and not an official of the Gestapo. If, in the performance of an order referring to service matters, criminal law is violated - the commanding officer alone is responsible, but nonetheless, the subordinate complying with the order is liable to punishment as an accomplice to the offence: (a) if he went beyond the order which he received; (b) if he knew that the order given by the commanding officer pertained to an action which had as its aim to commit a crime, or a general or military offence.

If we stop for a moment, could there be the slightest doubt that Eichmann knew that he was engaged in carrying out one great crime over a number of years? I asked him in the cross-examination: Did you ever ask to be shown a law that it was permissible to kill Jews, and if we assume that the Fuehrer had unlimited powers under the enabling law to issue laws, did you ever see a law of the Fuehrer that "the Jews are doomed to die"? Not that this would have made any difference. Even if he had obeyed such an order or such a law, this would not have helped him at all, but this he did not see either. He says: "I received orders, and we did not worry too much about legal cover. This is something with which my superiors had to concern themselves." That was his reply in examination.

Presiding Judge: I saw in a document which the Accused submitted that he mentions that in 1942 the whole regime of normal laws in Germany was abolished by the Reichstag, or by Hitler. Do we have anything about this in the evidence?

Attorney General: Your Honour, we submitted the letter of the German Minister of Justice...

Presiding Judge: This is not what I am referring to. If anything like this exists at all, it must be something general. I found nothing about this in the documents.

Attorney General: We did not find anything, Sir.

Presiding Judge: This, actually, is a question directed more to the Defence Counsel.

Attorney General: We did not find this.

Presiding Judge: So as to make clear what I am referring to, this is in one of the diagrams of the Accused, one of the first ones which he submitted.

Attorney General: Yes, I remember. We shall try to check this matter, and if we come up with something by tomorrow morning, we shall submit it to the Court.

Not that this would have changed much, because they themselves knew that murdering defenceless women and children was murder. And we have heard from the Nazi Propaganda Minister, Goebbels, in a publication in the Voelkischer Beobachter, that newspaper about which Eichmann says that he used to swallow it up in one piece, his outcry about the bombing of German cities, where he says: "Henceforth, the pilots bombing German cities will no longer be considered prisoners of war, and the German army will not protect them against the people's fury and will deliver them up to the people's fury. But this, of course, is with reference to harm coming to their children and their women. The people's fury was not designed to protect Jewish women, children and old people.

For the sake of comparison, let me quote the verdict of the Polish military tribunal that judged Greiser, who was Gauleiter of the Warthegau. This is on pages 36 and 37 of the booklet:

"Even if we were to admit the explanations offered by the accused as the basis for the verdict, even then his defence would not have lessened, to any degree whatsoever, his responsibility for the crimes perpetrated... According to the theory and modern practice of comparative criminal law, a subordinate is not obliged to carry out any order of his commander.

Under military law, even that of Germany, obedience is the basic trait of the soldier, but even under this stern military law, one cannot interpret discipline and obedience as blind obedience to any order, but only to orders that conform with the law, and not those that require the soldier to commit crimes. A criminal order of this kind from his superior will constitute a definite crime, for the commission of which the person carrying it out will be equally responsible with the one giving the orders... Under the modern approach, this is not a question of creating a new type of collective responsibility with the guilt of someone else, and it is not a deviation from the basic objective approach of personal criminal responsibility within the context of individual guilt, but it is a question of taking into account the fact which is not in dispute, that many criminal offences are carried out by groups, smaller or larger groups, or accomplices, with different degrees of complicity."

This, then, is the second reason why the claim of superior orders will not protect the defendant. But there is also a third reason.

We have already found that he went far beyond what he was ordered to do. He was the living spirit in the whole matter, because he was the driving force of the entire apparatus, the puller-of-strings. It was not a case of a man carrying out orders because he was compelled to do so, who was doing only what was required of him; he fulfilled the orders to the last iota, with harshness, chasing after every single Jew.

You have hundreds of documents showing that he turned down any relaxation, any permission to emigrate, and any opportunity for any kind of easing. What do you have where he ever responded, ever helped, ever allowed a relaxation? That was the spirit which pervaded the entire enterprise. I have already said: He did not give the supreme order; he was not powerful enough for that; but once matters reached the stage of implementation - there he was the ruler, there his hand was in all phases of execution, and he pushed forward and spurred on and performed wholeheartedly and willingly, within the framework of these orders, and if at all possible - above and beyond these orders.

Now let us see how these things look in the perspective of this trial. I have already said that the order to liquidate the Jews has never received the shape of any law. Not that it would have made any difference, and not that any such law would have detracted in the slightest from Eichmann's responsibility, even had it existed. But what was the formal basis for this gigantic operation of directives, instructions, regulations, ordinances, and all the other thousands of documents?

Eichmann told Wisliceny, according to the latter, that he had a written order signed by Himmler, stating that the Fuehrer had ordered the liquidation of the Jews. Eichmann denies this categorically, and he, on his part, does not try to point to any written document whatsoever. But even if we assume, in his favour, that Wisliceny's version is true, even then we have no proof for any legal or formal basis whatsoever, so that even if Eichmann were to argue that the reasonable German soldier was duty-bound to obey the law, he did not have the formal framework, he did not have any law.

As against this, there remains the main and unequivocal factor which brands the action as a crime. The very murder, the very manhunt, the very discrimination, the detentions, the search for these people, their seizure from every place where they were found, and all of that under camouflage, disguise, befogging, deception and deceit, which by themselves point to the fact that he knew that what was being done needed to be hidden; and what needs to be hidden, if not a criminal act of horror?

The worst things had to be hidden even from some of the authorities of the Reich itself, as he admits. Not that they were better than he was, not that they were not his accomplices, but even to them he did not dare disclose everything. He was engaged in work where anybody engaged in it could not but know that the order to annihilate Jews was a crime by any criterion in the world. The Accused and his partners in the SS, in that great criminal conspiracy, did not shrink even from acts which were war crimes, and suffice it for me to point here to the torture and murder of Jewish prisoners of war - as we have heard from the witnesses Levinson and Buchman. The orders came from Berlin to kill them all; this is what the witnesses testified, but a few were left for forced labour.

All of this, as the witnesses testified, was done by the SS men, in accordance with the evidence that we have submitted. And General Koller - according to the evidence of Justice Mussmano - when he went to Eichmann to discuss the fate of the Jewish pilots, what did he hear? They must be exterminated. Can a reasonable person argue that the mass destruction of Jews by all kinds of strange forms of death can further the German war effort? Eichmann knew that there was no connection between the war and the mass murder of Jews, but he will not admit this. Instead, we have the excuse to justify the beginning of the job - the alleged declaration of war by the late Dr. Weizmann on Nazi Germany, at the 21st Zionist Congress. What did the President of the World Zionist Organization say when he took leave of the representatives of his people on the eve of the World War?

I read now from the stenographic transcript of the Zionist Congress, page 222: Presiding Judge: This has not been submitted, you will please submit an exact reference. My colleague, Judge Halevi, quoted from the president's book.

Attorney General: His Honour quoted from the diary. The diary speaks about what Dr. Weizmann had written down in his diary, as he had said it. Here we bring his remarks from the shorthand transcript, and I prefer bringing to the attention of the Court this shorthand transcript.

Judge Halevi: Yes, I would also prefer that, but at the stage of summing up this is, perhaps, formally speaking, difficult. If Dr. Servatius should object?

Attorney General: I am prepared to yield. In any event, I can only say this. Would that the Germans...

Presiding Judge: Dr. Servatius, have you anything to say? True, as my colleague has pointed out, it would be quite unusual to receive new material at this stage, but after it has been mentioned by my colleague, of course it would be desirable to go right to the source.

Dr. Servatius: I see no reason to object, since the matter has been submitted, and there is room for formal documentation.

Presiding Judge: So, you may quote this from the stenographic record.

Attorney General: "That which the Western democracies are fighting for is the minimum required for the life of the Jews. Their concerns are our concerns, and their war is our war."

This he said before the outbreak of the Second World War. But the Nazis, we know, did not regard the Jews as belligerents; would that they had regarded them as belligerents, would that they had detained them in prisoner- of-war camps. Had they done so, millions of Jews might perhaps have survived. But they did the opposite; they wanted to liquidate the Jews, so long as the war went on, because they knew that this was an opportunity which must not be lost. Eichmann declared so openly to Wisliceny. The German Foreign Ministry expressed the same idea, namely that the War gives Germany the opportunity and the obligation to solve the problem of the Jews in Europe. Wisliceny further said:

"The longer the War went on, and it became ever more clear that there would not be a German victory, the more Eichmann continued to press for the completion of the deportations and extermination without any limits."
It is, therefore, clear why, after he was taken prisoner with his men, he was asked by Burger - his trusty, as he calls him - to get away from his comrades, as he himself admits, because clearly, he, Eichmann, was considered one of the main war criminals. As he had told Grell, back in Budapest - six million people were on his conscience; and on this occasion I would like to correct what seems to be a slip of the tongue that I made yesterday: When he spoke to Grell, he did not say six million Jews on his conscience, he said six million persons.

But who rested on Eichmann's conscience, and which six million people could he mean - of that there can be no doubt whatsoever. Why, in his police interrogation he also said: "Six million Jews." He did not jump gladly into the pit, as he had promised Wisliceny - and on that I shall have some more to say - but instead tried with all his might to escape justice, because he knew the enormity of his crimes, he knew that he had no excuse or defence for his actions, and therefore he escaped and hid.

While we are dealing with this matter of the illegal order, the matter of the conspiracy also assumes a different form, since the Defence Counsel could raise this question: What, in fact, is your argument, that some private in the Einsatzgruppen (Operations Units) in the expanses of Russia is a partner in a conspiracy with Heydrich, Himmler, Hitler? Can it really be argued that there is such a conspiracy which encompasses all shapes and ranks? And our reply is: Yes.

Inasfar as we are talking about the central people in charge of the operation, those engaged in an illegal task, the conspiracy works upwards and downwards, toward those who are above them, and toward those who are subordinate to them. And the criminal conspiracy is entered into in the nerve center of the Gestapo, both upwards - to Heydrich and to Himmler - and downwards, to the very last man. So long as there was full knowledge of what was being done and that these men remained within the criminal framework and this nerve center, after it became known what was to occur. This we heard from Eichmann himself: "In August or September 1941, Heydrich informed me that the Fuehrer had ordered the physical extermination of the Jews." From that moment on, he was caught in the net of the criminal conspiracy, toward Heydrich, toward his subordinates, and toward all those who were engaged in the thousands of small plots and the thousands of different conspiracies, which existed in every ghetto and in every community and in every country, big and small, for the performance of the overall task.

And finally, one further argument that may be raised, and that is the argument of "Act of State." The doctrine of the Act of State has its origin in a theory taken from Public International Law, which took form in different juridical systems.

Presiding Judge: Are you still going to speak about the possibility of getting out of this framework - the Gestapo?

Attorney General: I shall talk about this again when I come to analyse the sections of the law, one by one, when I come back and talk about the sections relating to this. We have a section charging him with belonging to the Gestapo, and there is something of this also in the IMT, and I shall come back to this when I analyse the indictment in detail.

The "Act of State" theory says: Public International Law deals with relations between states; therefore, if the individual acting on behalf of one state commits an act which injures another state, the state which is hurt is entitled to sue the state that committed the injury. But the individual who acted only as an instrument, as an organ of the state that caused the injury, shall not bear responsibility for his act. However, even in the opinion of those advocating this doctrine, it does not apply to acts which were committed by the individual at the command of the state when this command is outside the law, when it is in excess of the authority of the state.

Acts of State in time of war, which constitute a violation of Public International Law, are considered to be in excess of the authority of the state which does the harm, and therefore the transgressor will bear criminal liability.

For this reason, this particular defence was rejected in the trial of the major war criminals and in other trials of war criminals, and this is how it was formulated in the "Justice Case," which the Court will find on page 41 of our booklet. Because it is already late, I shall not quote from it, and I shall be content with referring to it.

In the trial of Gluecks, which is also mentioned on page 41 of our booklet, it says, in the passage quoted there, that criminal, individual responsibility for international crimes is nothing new; "therefore, the accused cannot argue that he is not punishable, since his acts are Acts of State."

Also, the fact that this defence was not specifically abrogated by the Nazis and Nazi Collaborators (Punishment) Law 5710-1950 makes no difference. First, our law does not mention at all such a defence among the sections of justification or defence set out in the criminal law, and which in this context constitute the overall scheme for exemption from criminal responsibility.

Therefore, there was no room for mentioning this in the Nazis and Nazi Collaborators (Punishment) Law, because the argument is that this does not exist in our country, in the ordinary criminal law. Secondly, common law, too, which could in certain cases serve as a complement to provisions of our statutory law, does not recognize this defence in the sphere of criminal law. American justice does not accept this defence either in a way that could detract from the criminal responsibility of offenders who act as representatives of a foreign state. This we learn from an opinion of the United States Supreme Court (Ex parte Quirin) quoted in the judgment of the International Military Tribunal at Nuremberg, which also appears on page 41 of our booklet.

Presiding Judge: This is not the International Military Tribunal. It is, as you said one of the subsequent trials, the "Justice Case."

Attorney General: The "Justice Case" quotes the IMT, which quotes the Ex parte Quirin.

That concludes my argument concerning "Acts of State."

Presiding Judge: The next Session - tomorrow at 8.30 in the morning.

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