The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of Adolf Eichmann
Session 114
(Part 5 of 6)

[Dr. Servatius, Continued]

According to Section 23(1)(c), it is also sufficient to show that the accused actually aided the perpetrator in committing the offence. However, even in that case, the "guilty mind" the awareness of guilt, has to be proved. It must be shown that the accused approved the act of the perpetrator, the criminal nature of which he was capable of understanding. The particular features of the Accused's case are as follows:

The Accused was not involved either at the beginning or the end of the commission of the act. His actions were limited to the part in between. This applies in particular to the extermination in the extermination camps. The Accused did not order the extermination, nor was it carried out by him.

Where an individual offence has been committed, where an act has been carried out on the perpetrator's own motion, a segment of the act can hardly be separated from the whole sequence of events connected with one another by causal relationship. The intent of the individual's act is directed to the whole series of events in which he participates. But where the act is committed in execution of an order, the situation is totally different. In such a case, the order strictly determines the scope of the act.

The individual acts are connected with one another only by the comprehensive order of the superior commander. The partial orders are independent of one another for their recipients. What happened before, and what will happen afterwards, is of no concern for the individual carrying out the partial order.

For that reason, Section 24 of the Criminal Code Ordinance is not applicable either, for a common intent to carry out, beyond the scope of each individual order, what others have been ordered to do does not exist. However, Section 34 of the Criminal Code Ordinance has yet to be borne in mind. Under that provision, the Accused might be guilty of conspiracy. The responsibility in that respect extends to every act of each conspirator, whether the Accused knew of and approved each of these acts or not. However, such a conspiracy cannot exist between superior and subordinate.

Orders are not carried out upon mutual agreement, but upon the unilateral command of the superior. An agreement going beyond that is possible but has not been proved in this case. The London Charter, therefore, does not provide for conspiracy to commit war crimes and crimes against humanity. In the normal course of events, these offences are committed within an organizational framework, and without an agreement amounting to conspiracy. It seems that the offence of conspiracy can be committed only in respect of crimes against peace. In such a case, deliberations have to take place, and common plans have to be prepared. The London Charter gives expression to this distinction by always adding the elements of a "common plan" and of "planning" to the offence of conspiracy. This is also in conformity with the verdict of the International Military Tribunal, where the conviction is based upon common planning.

The Accused did not enjoy any standing...

Presiding Judge: I beg your pardon, Dr. Servatius - how much longer will you still need for your submissions?

Dr. Servatius: I will have to read from another fifteen pages. That means actually - another hour.

Presiding Judge: Including the translation, at the same pace as up to now?

Dr. Servatius: Yes, Your Honour.

Presiding Judge: Well, in order to finish your final submissions during the morning session, we shall now have a recess of ten minutes, and you may then proceed for another hour.


Presiding Judge: Please continue, Dr. Servatius.

Dr. Servatius: The Accused did not have any standing which lifted him into the sphere of leadership. It has been established that the Accused, in his capacity as Head of Section IVB4, never signed otherwise than "by order of." His executory authority was limited. Only in matters of routine was he independent.

Now, the Prosecution has tried to show that actually the Accused's standing was higher than the status which normally corresponded to his rank. However, the attempt to prove, by way of circumstantial evidence, that the Accused was a chief and key figure in the measures of extermination, has failed. It is not the preparations made on the administrative level by the Head of a Section for his superior that are evidence of his powers, but the signature as responsible officer in charge. Only the organization chart shows the actual standing. If in other instances the Prosecution insists upon the special probative force of official documents, this must apply also in this case. The superior remains the superior even if the Head of the Section should endeavour to live up to him.

The Prosecution cannot rely, in rebuttal of this statement, on the drawing up of written instruments by the Accused. The Prosecution cannot refer to the fact that, although the Accused signed his direction by adding to his signature the letters i.A. (by order), but that he formulated them by using the first person: "I direct - I ask for a report," etc. The heading of the letters shows that this can only refer to the competent official.

In file memos it is stated that the Accused made certain decisions at conferences or in telephone calls. However, everybody concerned knew that the Accused was not empowered to do so, by virtue of his own authority. He did not need to make this express reservation whenever he gave any instructions. The Prosecutor, too, did not want to listen any more to this addition to the Accused's reply, namely that he had acted in obedience to an order. However, in these instances the Accused had very good reasons to make it clear that he had done so, whenever he was faced with specific charges.

Furthermore, it is alleged that the Accused made certain arrangements with higher-ranking agencies, or conducted negotiations with foreign governmental agencies. The examination of this allegation shows that the Accused only held conferences of a technical nature, in respect of the implementation of measures which, in principle, had already been agreed upon by his superiors. Such circumstantial evidence is insufficient to prove the Accused's participation in a conspiracy. Moreover, the Accused was not vested with special powers, as alleged. Witnesses - as for example the witness Six - were of that opinion; however, they were unable to state facts in support of this allegation.

On the other hand, the Accused's close collaborators know that he had no such powers. They state that, on the contrary, the Accused was most strictly bound by the instructions of his superior, Mueller, and that he constantly asked for the latter's directions. He did so in order to protect himself in important matters concerning the Jews, against the charge of arbitrary or improper measures. He was quite right to do so, for after the catastrophe a culprit had to be found, and the Accused was exactly the appropriate person to be chosen as a scapegoat. His activity had been known everywhere. You do not know the wirepuller, but only the marionette.

The actual standing of the Accused emerges quite simply from the fact that since 1941 he had not been promoted. Even his reward by way of decoration for his services, which are alleged to have been so great, was very meager. This remains enigmatic even for the publicist.

The witness Becher rose in the ranks of the SS from the rank of private in 1939 to the rank of Standartenfuehrer, and he even saw to it that Eichmann received a decoration. Had the Accused had special powers for negotiation with higher- ranking agencies, then it was not only customary, but even necessary, to promote him to a higher rank. Only then could he have been able to have his way duly as a partner in such negotiations.

But nothing happened in that respect. In Hungary, the Accused was the subordinate of the Commander of the Security Police, Geschke, and of the Superior Commander of the SS and the Police, Winkelmann. In other countries, too, where Eichmann did not carry out his activities in person, he was subordinate to higher-ranking agencies. The charts submitted in the courts of various countries give a clear idea of this situation.

The missions of the Foreign Ministry abroad had their own Advisers on Jewish Affairs and Police Attachees. These officers had to carry out the orders of the Higher SS and Police Leaders. In a written complaint, Winkelmann declared this to be a matter of course. It was for him to decide whether directions of a professional nature transmitted by the Accused's Section could be implemented. In Hungary as well as in other countries, plenipotentiaries and commissioners of the Reich, military commanders and heads of diplomatic missions insisted on preserving their powers. The professional instructions issued to the agencies of the Gestapo within their area of jurisdiction, were not new to them. The measures against the Jews as ordered by the leadership were no secret to them. They were only loath to come into contact with their implementation. They knew of the orders. If they had had any objections, they would have had to raise them not with the Accused, but with his superiors. However, no such objections against professional instructions transmitted by the Accused's Section were voiced.

The Accused states that he acted in obedience to the order of his superiors. It is alleged that it is generally inadmissible to rely on superior orders as a defence in criminal proceedings.

Article 8 of the London Charter excludes reliance on superior orders as ground for exemption from criminal responsibility. In this connection, the Nuremberg judgment declares, without giving any reasons: "The provisions of the article are in conformity with the laws of all nations." That is not correct.

Up to 1944, Section 443 of the British Manual of Military Law provided as follows:

"Members of the armed forces who commit such violations of the recognized rules of warfare as are ordered by their government or their commander are not war criminals and cannot therefore be punished by the enemy."
Similarly, Section 347 of the American Rules of Land Warfare of 1915 states as follows:
"Individuals of the armed forces will not be punished for their offences in case they are committed under the orders or sanction of their government or commanders. The commanders ordering the commission of such acts, or under whose authority they are committed by their troops, may be punished by the belligerent into whose hands they may fall."
Only in 1944, when victory was certain, were these provisions amended in conformity with the contents of Control Council Law No. 10 which was enacted in 1944. Only then was criminal responsibility introduced also for those acting in obedience to superior orders. At the trial of the war criminals the reliance upon superior order was rejected as a wrong and obsolete legal concept.

After the termination of these trials, this legislation was again repealed. This repeal was effected, for instance, by re-introducing the former wording when the British Manual of Military Law was re-edited. Accordingly, soldiers who acted in obedience to orders of their superiors cannot be prosecuted.

Presiding Judge: Have you indicated the reference for what you have just quoted?

Dr. Servatius: Copies of these statutes are not here with me in this country. They are at my chambers in Cologne, and I am ready to place them at the disposal of the Court.

Presiding Judge: Perhaps you might indicate only the references; we shall be able to get hold of the book.

Dr. Servatius: I have just indicated the section of the previous edition: Section 443 of the British Manual of Military Law, 1944, and Section 347 of the former American Rules of Land Warfare of 1915.

You will have to peruse the more recent edition, where you will find that the situation has changed once again, and that the amendment which had meanwhile been made was again repealed. These provisions had been repealed by the Control Council Law and the Nuremberg judgment, the alleged reason being that this repeal was in conformity with generally recognized law.

Presiding Judge: I would like to know the year of the edition, its number, and the page number. What you have just said is new to me.

Dr. Servatius: Your Honour, it is very difficult to get hold of these books; but I shall do my best to produce them to this Court.

Attorney General: We can be of assistance to the Court; the entire material on British Military Law is in our possession, and we can produce it in Court. Mr. Terlo has already gone upstairs to fetch it.

Presiding Judge: Mr. Hausner, is it correct that, as alleged, there was an amendment and that, later on, it was repealed?

Attorney General: There was an amendment, but it has not been repealed.

Dr. Servatius: As to the amendments, I can rely only on the legal writings dealing with these questions.

Attorney General: [After having received the material] I have here the relevant portions of the British Military Law, 7th edition of 1939 and the 8th edition of 1951, and the Court can peruse both editions.

Judge Raveh: Is this development reported in Oppenheim's second volume?

Presiding Judge: This here, at any rate, is the last edition of the Military Law. This is the 1951 edition.

Attorney General: Yes, Your Honour, from 1951, and the quotation is in the first part, page 115.

Presiding Judge: Anyhow, Dr. Servatius, if there is yet another quotation from writings on British or American Military Law you wish to refer to, you can submit them to us in writing.

Dr. Servatius: Yes, Your Honour, I shall try to find them, and I shall inform the Court accordingly.

Presiding Judge: With a copy to the Attorney General.

Dr. Servatius: Yes, Your Honour.

In Israeli criminal law - Section 19 of the Criminal Code Ordinance - acting in obedience to superior order exempts a person from criminal responsibility, unless the order is manifestly unlawful. However, according to Section 8 of the Nazis and Nazi Collaborators (Punishment) Law, Section 19 does not apply to the determination of criminal responsibility. According to Section 11, acting in obedience to superior orders can only be taken into consideration as a mitigating circumstance. Such a restriction in the Nazis and Nazi Collaborators (Punishment) Law is a provision of exceptional nature, and in contradiction to the principles of the rule of law.

The provisions regulating acts upon superior order apply, in the first place, in the military sphere, where the application of force is one of the functions of the armed forces. However, the same principles apply also to other agencies empowered to give orders to their subordinates. The provisions apply, in particular, also to the Accused, who belonged to a quasi-military, rigidly organized, body and was bound, by sworn affirmation, strictly to comply with orders given to him.

According to German criminal law, a superior order will not exempt an accused from responsibility, if the act ordered to be done was punishable. This criminal nature of the act ordered to be done, is clearly discernible for the perpetrator, where acts are ordered to be done which are contrary to the Criminal Code. It is also discernible where the act in question is a war crime declared to be prohibited under the Hague Convention respecting the Laws and Customs of War on Land, and accordingly punishable under national law.

However, the situation is entirely different, where political commands are involved. "Thou shalt not kill," it says in the Ten Commandments. However, we read in the Pentateuch what the statesman Moses was compelled to do. And they killed.

The addressee of an order is not capable of discerning the criminal nature of political measures taken by the leadership, if he is not part thereof. The leadership determines who is the enemy, and how to fight him. A declaration of war against the Jews was not made; however, there is a close relationship between the war and the fight against Jewry. The Nuremberg Prosecutor, Robert Kempner, has also stressed this point in his book, Eichmann and his Accomplices. On the legal aspects, this book constitutes probably the most enlightening publication concerning the Eichmann case.

What was the Accused able to perceive in the political sphere at that time? Article 22 of the Hague Convention respecting the Laws and Customs of War on Land, states as follows: "The belligerents have not an unlimited right as to the means they adopt for injuring the enemy." None of the belligerents has respected this provision, and no member of the armed forces has refused to execute what was prohibited by international law and what must have appeared to him as manifestly inhuman. Even today, it is "taboo" to mention Article 22 of the Hague Convention.

According to Article 25 of the Hague Convention respecting the Laws and Customs of War on Land, it was prohibited to attack undefended places and dwellings "by any means whatsoever." Everybody noticed that the contrary was the order of the day. One does not need to mention any more the names of Hiroshima and Dresden; they only cause embarrassing boredom.

The aforesaid does not apply to the persecution of the Jews; that is no act of war. But also in that respect, the Accused, during the period preceding the extermination, perceived the cool calculating of the politicians on the other side, which barred the political solution of emigration. Again later, on the occasion of the Brand operation, he witnessed that the offer to permit the departure of one million Jews failed, owing to the matter-of- fact attitude of foreign diplomats. We can only follow the diplomatic chess game which was played at that time with a feeling of pain, without a clear idea of events. The extermination of Jews is unprecedented in history. However, one ought to ponder thoroughly how far this is correct. Even in olden times, persecution and defence have exacted an enormous number of victims. It appears that in those times this was not less ghastly than it is today.

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