The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of Adolf Eichmann
Session 114
(Part 2 of 6)

Dr. Servatius: I think the judgment has been referred to by the Prosecution: Case 11, the judgment in the matter of Schwerin von Krosigk.

As to the charges in detail, the following are my comments: It is not true that the Accused registered all of the Jewish property in Austria and took control thereof. The registration was carried out by the so-called Commissioner for Frozen Assets. Persons engaged in the transfer of Jewish property to Aryan ownership, as well as trustees, rushed in to obtain the commercial and professional assets. For them, the meaning of the persecution of the Jews was to enrich themselves and to get a profitable position.

The Accused was entrusted only with administering the assets of the religious community. In so doing, he released considerable sums for the purpose of emigration. This is confirmed by Dr. Loewenherz' Report. The Accused enabled the Jewish organizations to renew their activities, and released the necessary means precisely for that purpose. In particular, the Accused succeeded, in the face of strongest opposition by other agencies, in obtaining the release by the Reichsbank of foreign currency transferred from abroad to Jews for the purpose of emigration, to be used for that purpose. Had the Accused not acted at that time in the interest of the Jews, this foreign currency would have been converted automatically into amounts of paper Marks, which were valueless for the purpose of emigration.

It is, therefore, due to the Accused's efforts that at that time two thirds of the Jews of Austrian were able to leave the country. They could do so as they wished; their situation had become desperate, a fact for which the Accused was not responsible. The Accused was not involved in the destruction of property, the so-called Kristallnacht. He learned of the events only after they had already begun. He tried to prevent damage, and placed guards in front of the Jewish community building. He took members of the religious community under his protection until the storm had passed. The activity of the Accused at the Central Office for Emigration in Bohemia and Moravia shows similar features. The same applies mutatis mutandi to Germany. The Accused was not entrusted with the assessment and collection of the "Jewish levy." As to details, I refer in this respect, too, to the closing brief.

A further sub-division of the Count in question is the establishment of Special Account "W." This was an account into which Jews were forced to pay amounts of money, as a voluntary contribution, prior to their deportation. The characteristic feature of this contribution, was that the Jews did not thereby incur any additional loss. The assets out of which the contributions were transferred had been frozen. Accoring to the law, they were forfeited by the very act of crossing the frontier of the Reich, even if that occurred involuntarily, or they were declared by the Regierungspraesident* {* Head of a subdivision of a province} to be forfeited as being property of enemies of the state. The effect of the transfer to Special Account "W," was that the amounts transferred were placed at the disposal of the agencies charged with the deportation and housing. This was a device calculated to circumvent the opposition of other agencies of the finance administration against the allocation of appropriate means for the upkeep of the Jews. Difficulties were avoided, which otherwise would have arisen when the necessary means for the upkeep of the Jews had to be approved. These were difficulties which might have produced disastrous results for the Jews concerned. The voluntary contributions paid into Special Account "W" were therefore actually in the interest of the persons affected. Indeed, these were the strange ways of bureaucracy in the administrative labyrinth of the Third Reich.

Furthermore, the Accused is charged with having been involved in the Reinhardt Operation. The object of this operation was to seize the personal chattels of Jews who had been deported and exterminated. However, the Prosecution has not adduced any evidence that the Accused was involved in the planning and carrying out of this operation. Moreover, it has been established that this operation was exclusively within the province of the Commander of the Security Police and the SD in Lublin; he, on his part, received orders directly from Himmler.

Furthermore, no evidence has been adduced to prove the accusation that, during the whole period of the War, the Accused forwarded to Germany, for commercial use, gold teeth and hair taken from the corpses of persons who had been exterminated.

The Accused did not have any dealings either with the Reichsbank or with the industrial undertakings engaged in their commercial use. As to details, I refer to the closing brief. Furthermore, it has not been established that, during the War, the Accused forwarded to Germany other personal belongings of the Jewish victims. It has been established that the administration of the concentration camps was under the exclusive control of the Economic- Administrative Head Office. It has not been proved that the Accused was involved in any way in the planning and carrying out of the aforesaid operation. The Reinhardt Operation came to the Accused's knowledge only at a later date. However, this cannot be considered as an approval of these events.

Finally, the Accused is charged with having given instructions in respect of the seizure of property to local commanders of the Security Police and the SD. The Prosecution claims that the Accused gave instructions in the Axis countries in respect of the seizure of property, through the intermediary of the diplomatic missions. However, the forwarding of instructions and orders to the aforesaid commanders, as well as to the Police Attaches and Advisers on Jewish Affairs in the Foreign Office and the diplomatic missions, did not involve any personal judgment or participation of the Accused. The distribution of the Jewish assets was carried out between the states concerned. They agreed upon the application of the so-called territorial solution. A head of a Section is not competent for the settlement of such a diplomatic arrangement.

Counts 1 to 6: There remains the core of the indictment - extermination in the extermination camps, shooting by special Operations Units, deportations, and so on.

In Counts 5 and 6, these offences are classified as crimes against humanity. The Sixth Count concerns, in particular, persecution of Jews on national, racial, religious or political grounds. Section 1 of the Nazis and Nazi Collaborators (Punishment) Law defines the crime of persecution according to the definition in the London Charter. However, it would be erroneous to assume that the London Charter had given world-wide effect to its classification of these persecutions as crimes against humanity. On the contrary, the London Charter went out of its way to exclude such an extensive interpretation. According to the Charter, the facts constituting the offence are punishable as crimes against peace and war crimes by the vanquished. In this connection, an explanatory resolution was adopted on 5 October 1956, by the four principal powers, by which the wording was clarified. This was done by the amendment of a punctuation mark, namely the replacement of a semicolon by a comma. I shall attach a copy of this resolution to the closing brief.

The Nazis and Nazi Collaborators (Punishment) Law is likewise restricted, so as to apply to events in the defeated countries only. The offence established by Section 1 enumerates the aforesaid grounds of persecution.

What were the actual grounds for the persecution of the Jews? A member of the legal profession is unable to answer this question. The witness for the Prosecution, the eminent historian, Professor Baron, likewise was not able to give a satisfactory reply. Innumerable letters from all over the world addressed to the Defence disclose a bewildering picture of the views held by men. They reveal a picture of a sick world. We need experts, philosophers, theologists and historians - they ought to carry out research on this sickness.

Presiding Judge: Dr. Servatius, I do not know whether this is relevant, but our section uses the term "crime against mankind" (enoshut). You used the expression "humanity" (Menschlichkeit). The translation of the term enoshut is "mankind" (Menschheit).

Dr. Servatius: Your Honour, the Presiding Judge, we face here a linguistic problem: In translating the term "humanity" no distinction is made between "mankind" (Menschheit) and "humanity" (Menschlichkeit). The German language makes a distinction: The first term, Menschheit has the connotation of space; the other term refers to a feature of character, Menschlichkeit, an act is "inhuman" (unmenschlich). The translation, in this connection, ought to be, therefore, "humanity" (Menschlichkeit).

Presiding Judge: Your explanations are correct as far as the English word "humanity" is concerned. It has two meanings. But this does not apply to the word used by our legislator, enoshut. Enoshut corresponds to Menschheit (mankind) in German, and we are bound, of course, to follow the language used by our legislator.

Dr. Servatius: I had assumed that the term used by the London Charter had been adopted. The official (German) translation of the Charter uses the word Menschlichkeit (humanity). However, I think that, after all, the meaning is the same.

Presiding Judge: Yes, I pointed this out at the beginning. I had to make this observation in case it should be relevant.

Dr. Servatius: Yes, Your Honour.

The Fifth Count charges the Accused with murder, enslavement, extermination and other offences, all of them being classified as crimes against humanity.

Crimes against humanity! Everybody will agree to that. But a member of the legal profession will hesitate. What happened is not to be weighed up by the heart of man, but is the outcome of calculations made by the brain of politicians. Heads of state have vindicated the right to commit these acts, and have actually committed them - and they are about to do it again.

Presiding Judge: Dr. Servatius - if I understood correctly what you said in the last sentence - I hope that you are being too pessimistic.

Dr. Servatius: I hope that is right.

Counts 1 to 4: At the same time, the Accused is charged with the aforesaid offences as being crimes committed against the Jewish People. In this respect, too, we face problems. The meaning of "the Jewish People" is legally not clearly defined. Constitutional law and International Law recognize only the term of a state and the people of a state. Every state is at liberty to extend, by way of national legislation, the meaning of the term "people" as it deems fit. It is its natural right to protect those who belong to its people. However, if the state extends the scope of application of its laws beyond its boundaries, it is bound by the restrictions established by International Law. As at the time of the commission of the offence no people of a Jewish State existed, an offence against such a people could not have been committed. The situation cannot be changed either by way of a legal fiction.

Moreover, even the content of the law is extraordinary. According to the Convention on Genocide it appears that it can be considered as a crime against a people. The legal definition of "crime against the Jewish People" does not clearly show what are the facts constituting the offence. The definition is framed too widely. It remains unclear what is the meaning of "extermination," and of a "part of the Jewish People." Social and economic boycott and causing hatred of Jews have their counterpart - which is not punishable by law - in various kinds of political propaganda. Moreover, Germany's economic and social boycott was included in certain plans of annihilation when these plans were made, without having been considered a crime to be punished by death. Furthermore, it is hard to understand why, according to the Attorney General's statement, the destruction and desecration of religious and cultural assets and values ought to be considered as having been carried out with the intention to exterminate the Jewish People.

The punishments provided for in the Nazis and Nazi Collaborators (Punishment) Law exceed, in this respect, the limits of what is customary under International Law. This ought not to be disregarded.

The following comments are made in regard to each of Counts 1 to 4 in the indictment.

The Fourth Count: Prevention of births and sterilization. The Accused had only indirect contact with the charge of sterilization. His subordinate in charge of this matter, Guenther, received two letters from Himmler's personal staff in June 1942. According to one of these letters, the Dr. Matthaus biochemical establishment in Dresden, had carried out these experiments in sterilization. The second letter informed Guenther that Professor Klauberg had carried out experiments in the sterilization of detainees. The Accused declares in this regard that he had no knowledge of these events. This is corroborated by the following facts: One is struck by the fact that, contrary to usual practice, both letters were addressed directly to the subordinate dealing with the matter, i.e., Guenther. The Accused's explanation is that Guenther had probably received special instructions.

In view of the circumstances, this explanation appears to be credible. In this respect, I have to remark that the same subordinate is mentioned also in connection with other affairs within the medical sphere, namely killing by gassing, procuring of skeletons. It is conceivable and possible that the subordinate Guenther maintained contacts, beyond his official functions, with Himmler's personal staff, and had engaged there in activities connected with the medical sphere. The measures of sterilization could be performed only by members of the medical profession. The medical practitioners involved in that respect were directly at Himmler's disposal. Within the framework of the society Ahnenerbe (Ancestral Heritage), he had established a special institute for research which was engaged in experiments.

However, the Accused also had to deal with the legal aspects of sterilization. Following the Wannsee Conference, and in conformity with the resolutions adopted there, laws on sterilization were drafted. It concerned persons of mixed parentage. In this respect, the driving force was, inter alia, the Reich Ministry of the Interior. It proposed compulsory sterilization. It appears from the record of the two further meetings called for the purpose of implementation, that the Accused could merely take cognizance of the result of the second meeting, by virtue of his presence there. The independent advancement of the project for sterilization, without the Accused being involved or associated with it, is adequately proved by the fact that in Holland the sterilization of persons of mixed parentage was started independently.

Judge Halevi: Dr. Servatius, I assume you were mistaken in choosing your expressions when you said that gassing was within the medical sphere.

Dr. Servatius: It belongs to the medical sphere, inasmuch as it is prepared by members of the medical profession; for after all, its object is killing, and killing is within the medical sphere.

It is alleged that the Accused ordered the carrying out of abortions. The commander of Theresienstadt, Rahm, declares that he learned about it from the Council of Elders. However, this is contradicted by the testimony of the [first] commander of the camp, Seidl. But above all, the allegation that it was ordered by the Accused is contradicted by the fact that Theresienstadt was under the control of the Commander of the Security Police and the SD in Prague. Orders were given by him, and not by the Accused. According to the testimony of the witness Peretz, the it was the local police who gave the order to perform abortions in the Kovno Ghetto. There is no evidence of the Accused having given such an order. The Accused is, therefore, not directly responsible under the Fourth Count.

The Third Count - Crimes against the Jewish People by inflicting physical and mental suffering, such as enslavement, starvation, expulsion, removal to ghettos and transit camps. As to the charges in detail, I wish to make the following comments:

Item 3: The persons to be deported were not selected by the Accused, but this was provided by Article 5 of Regulation No. 1 issued under the Reich Citizenship Law. The Accused had no influence on the enactment of that law.

The orders to carry out the deportations themselves were given by agencies of the highest rank, in execution of the policy concerning the Jews which was directed by the Reich. They were in conformity with the outcome of the Wannsee Conference, and with the powers Goering conferred upon Heydrich.

Sub-paragraph d 2: The accusation made therein, namely of participation in the events of the Kristallnacht, has already been commented upon, when replying to the accusation of seizure of property. The Accused did not take part in these events.

Sub-paragraph d 3: The organization of a social and economic boycott by marking with the Jewish Star, which is being imputed to the Accused, was actually the result of legislative measures. The police who had been charged with their implementation, could neither add thereto nor derogate therefrom. The situation is explained by the letter of the Reich Ministry of the Interior which has been produced, and by various letters emanating from Heydrich. The marking of Jews abroad was provided for by higher-ranking agencies, and carried out in agreement with the diplomatic and military authorities.

Finally, the Accused did not act in the domain of propaganda. Antisemitic propaganda abroad was within the province of the Foreign Ministry. This appears clearly from the meeting of the Foreign Ministry's Advisers on Jewish Affairs at Krumhuebel on 4 March 1944.

Sub-paragraph d 4: We are dealing here with the extension of the application of the Nuremberg Laws to foreign Jews. This can hardly be imputed to the Accused. The relevant provisions for foreigners within the territory of the Reich were the Implementing Regulations. The Accused had nothing to do with the enactment of that decree. The application of these statutes abroad was such a drastic measure that it could be taken only by higher-ranking authorities. Such instructions given by Kaltenbrunner are before the Court. In this particular instance, the administrative-technical involvement of the Accused in the preparation of the drafts, on orders he had received, cannot constitute a basis for the Accused's responsibility. The Accused's responsibility would also be in contradiction to the administrative structure in the territories in question; even if the Head Office for Reich Security could actually give directions through the intermediary of the Accused, their execution was subject to the approval of the political authorities in these territories.

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