The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of Adolf Eichmann
Session 114
(Part 6 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 Inhuman events of enormous extent have occurred in modern history, too; e.g., the genocide of Indians, Mexicans, Peruvians, etc. after the discovery of North and South America, the abduction of slaves from Africa, the extermination of the aborigines in Australia, the persecution of Jews in Spain, and the murder of the Huguenots in France.

All these deeds were not considered to be manifest crimes, of which the participants ought to have been aware. They were political acts. Probably this will remain so, until a world government is established. The state requires obedience precisely in the political sphere. This is secured by taking the oath from those who are bound to obey. Compared with the infringement of this duty, criminal offences are of no importance. But the refusal to obey is punishable by death. He who refuses to carry out an order to kill can choose death. It is not for the individual citizen to decide what are the measures permitted to be taken. The leadership of the state determines its politics. The State of Israel, too, was compelled to take harsh measures when the existence of the state was at stake.

Faith in the leadership is the basic principle of all states. Deeds are silent, obedience is blind. The state can rely on these virtues alone. It depends upon the success of politics whether these virtues are rewarded. Where politics have failed, the order is considered as a crime in the eyes of the victor. He who has obeyed is unlucky; he has to pay for his loyalty. The gallows or a decoration - that is the question:

"The deed which fails will be a common crime. If it succeeds, it will be sanctified."
Presiding Judge: Dr. Servatius, Kempner's book you referred to is not in our possession. Perhaps you could put it at our disposal?

Dr. Servatius: Yes, Your Honour, I can put a copy at your disposal. The Accused has declared that in his heart he rejected the extermination of the Jews, but that, in obedience to orders given to him, he had to remain at his post. He declares that he could not have refused to obey, as he was under constraint.

The functioning of the state and of its organs is not based, in the first place, upon the Criminal Code. The life of the state is guaranteed by voluntary obedience. Thus the Accused, too, acted for the state, voluntarily and out of conviction, until he became aware of the aims of extermination. However, once the first steps on the way to extermination are taken, no return is possible. At that stage, obedience is enforced by law.

Witnesses who held higher-ranking positions in the SS have declared that it was easy to evade the carrying out of orders which appeared to be unlawful. The political and military aristocracy, it is true, was able to refrain from performing dirty work. Himmler, in his speech at Poznan, confirmed that to his SS generals for the particular case at issue. However, the situation of lower-ranking officers is different: for them an order always remains an order.

It was possible to try to get an assignment to the front line, in order to avoid the performance of a task of which one did not approve. THe Accused tried to do so. His superior refused. During war, everybody has to remain at the post he has been assigned to. This is a generally accepted principle. The alternative is to dodge, for instance by simulating sickness. This is not a refusal to obey; this is running away at the expense of others. It is a betrayal of comrades; one leaves them to face the compulsion of commands, instead of holding out with them in resistance, just when it becomes necessary to do so. In the eyes of the state, the dodger is a deserter. Comrades and collaborators must treat him as a traitor who surreptitiously makes off along a way which is barred to others.

However, the ways of avoiding the carrying out of an order were not so practicable as some witnesses claimed after the War. You have to examine the actual case in question. Then you will see: no refusal to obey occurred; the circumstances have always been of a special nature. Had the refusal to obey been as easy as that, it would be incomprehensible why the resistance fighters did not act more openly and resolutely. They could not do so because they had to expect a most severe reaction, even at the slightest attempt. In particular, the tribunals of the SS and of the police were merciless in their treatment of a man of defeatist leanings. They had to try persons who were bound by a special oath of loyalty, and were bearers of state secrets. However, it was even highly doubtful whether a trial would take place at all. In a clear-cut case, a trial was not necessary. In this connection, I refer to Gerstein's statement, according to which two persons were killed on the spot, because they had been gossiping.

Presiding Judge: Dr. Servatius, let me ask you a question: Is there anything in the Accused's testimony, in this Court or in his statements to the police, showing that the extermination of the Jews had stirred his conscience? Is not his version: There was an order, and therefore the question whether to ask my conscience did not arise at all? In my opinion, there is a difference between these two versions.

Dr. Servatius: As far as I have understood the Accused, as well as in conversations with him, always rejected these measures, but he had to carry them out under constraint, since the orders had been given. This was his state of mind.

Presiding Judge: Anyhow, I shall have to look for passages in the Accused's testimony where he states clearly: I rejected these measures. I think he has argued constantly: "What am I and who am I to be able to discuss these matters at all - there was an order!"

Dr. Servatius: It seems to me that, on perusal of the testimonies as a whole, nevertheless the basic attitude will become evident. This ought to be the outcome, after examination of the testimonies.

Presiding Judge: We shall do so.

Dr. Servatius: What could have been done by the resistance fighters mentioned by the witness, Probst Grueber? Ministerialrat Loesener resigned from his office as head of the Section for Jewish Affairs in the Reich Ministry of the Interior. But he approved of the measures taken against the offspring of mixed marriages in an exemplary manner, and later on he was appointed to the post of a high-ranking Judge: in the administrative tribunals. This is a career which cannot be shown to have any connection with a refusal of obedience. This unknown SS officer at the Gestapo in Berlin, does not show any outward signs of disobedience. On the contrary, he is more than harsh and snappy.

Additional facts have been established: The SS judge, Dr. Morgen, did not resign from his post after a visit to the Auschwitz extermination camp. The International Military Tribunal listened to his testimony with great reserve. The SS officer, Dr. Gerstein, supplied the camps with prussic acid. His acts of resistance were committed in secrecy. He was not able to refuse to obey.

You cannot expect that the Accused should have done what even these fighters in the resistance movement were unable to do.

Furthermore, the Accused points out that his refusal to obey would not have had any influence on the continuation of the extermination of the Jews, and that his sacrifice would have been meaningless. The machinery issuing orders would have continued to work as it did after Heydrich was killed. The conditions under which individual crimes are committed are different in that respect: The offender can withdraw, he can prevent the furtherance of the criminal act. Faced with the command of the all-powerful collectivity, the sacrifice becomes meaningless; in this case, the crime is not the deed of an individual - the state itself is the offender which, by a system of horror and propaganda, is confronting men with an insoluble problem. The Court is to find an ex post facto solution in the courtroom, detached from the time when the events happened. What a difficult task!

Furthermore, it is recognized in international law that an Act of State constitutes an exemption from criminal responsibility, that is to say: He who has acted on behalf of the state in execution of its will cannot be prosecuted for the commission of his act. The application of this principle has been excluded by the London Charter, Article 7 of which provides:

"The official position of defendants, whether as heads of state or responsible officials in government departments, shall not be considered as freeing them from responsibility or mitigating punishment."
No similar provision has been included in the Nazis and Nazi Collaborators (Punishment) Law. The Prosecution claims that this rule nevertheless ought to be applied; it is argued that the enactment of an express provision was not necessary, for the exclusion expresses only a legal principle which is generally accepted, and this idea should be considered as customary law. I beg to differ. Criminal responsibility of an individual for an Act of State has not become customary law.

The Nuremberg Trials were held under exceptional provisions aimed at the defeated. They did not constitute the first case in which a certain rule of customary law was applied - such a custom does not exist. Moreover, the reason put forward for the enactment of this exceptional provision was not that the principle of the Act of State had become obsolete in general, due to legal developments, but that a way had to be found to punish the leadership of the defeated. In that connection it was misleading to rely on the provisions of the Treaty of Versailles conferring jurisdiction for the trial of the German emperor. This trial should have taken place precisely by virtue of contractual submission in the treaty of peace, and not on the strength of existing law.

The higher the Accused is raised into the sphere of political leadership, the more it becomes obvious that the exemption from responsibility for having committed an Act of State should apply to him. However, this exemption from responsibility applies also to him in his capacity as a subordinate, inasmuch as he has acted in execution of the state's intent.

Thus, the problem of retrospective application of the law also arises: The London Charter was not enacted in accordance with already existing legal principles applicable to the main accused, as well as to anybody else, after they just happened to be affected by them. The history of the London Charter shows a different situation. The examination did not extend to the legal principles to be applied, but to the defences which the accused were entitled to raise against these principles. These defences were excluded by the provisions of the London Charter. Thus, legislation of an exceptional nature was enacted with retrospective effect. This was a law made to measure.

A similar situation existed when the Nazis and Nazi Collaborators (Punishment) Law was enacted. This has been admitted by the Prosecutor in regard to the conspiracy to commit a crime against humanity. According to his statement, criminal responsibility was extended in that law beyond its scope under the London Charter, in order to close a gap and to extend the categories of responsible participants in the offence. This is an ex-post-facto law intended to apply with retrospective effect to a certain group of persons, which is in contradiction to generally accepted principles of law.

Finally, we have to deal with a question requiring particular attention. I refer to the question of prescription. The defence of prescription may be raised, with certain restrictions, in respect of the crimes of membership in organizations referred to in Counts 13 to 15. Otherwise, the defence of prescription is excluded, in respect of offences which are the subject of this trial.

The legal situation of the Accused in Argentina, at the time of his abduction, was different. In that country, the prosecution of all the offences with which he is charged in this Court was already precluded on the ground of prescription. The period of prescription was completed fifteen years after the date of the commission of the offence. The last day on which the offence is alleged to have been committed is considered to be 5 May 1945. Therefore, the period of prescription was completed on 5 May 1960, that is to say, shortly before the abduction.

The restitution of the Accused's rights should consist in placing him into the same situation in which he would have been if he had been lawfully extradited at that time. The Accused could, therefore, have been convicted only in accordance with Argentinian law, and the completed period of prescription has, therefore, to be taken into account.

The meaning and purpose of this trial shall not be to take revenge against the Accused for acts committed by the political leadership. The conviction of the Accused also cannot constitute an expiation of the horrors which have occurred. The meaning of the trial can only be to establish, by way of judicial examination, what has happened - to make findings which will serve as an historical admonition.

In the tradition of the People of Israel, the idea of prescription has found its early expression in the institution of the "holy year." It is a religious idea that, in course of time, there is, and must be, forgiveness. Prescription brings the blessing of peace.

What is asked for is not to pardon and to forget, but to reflect and to stand still.

Time has also to bring peace, in order to heal wounds. We must turn away from the total struggle of measureless collectivities. Let us return to moderation, to self- control, to humanitas. A judgment should be given radiating beyond the Eichmann case, a Solomonic judgment showing the world the wisdom of the Jewish People. By recognizing the prescription which took place in Argentina, the blemish caused by the abduction would be removed. This, too, will benefit peace.

It is my submission that the proceedings against the Accused be stayed, and all measures of prosecution taken against him be discharged.

Presiding Judge: Thank you, Dr. Servatius. [Turning to the Attorney General] Now you have asked for time to comment - if you have something to comment on - on the written material which has been submitted today.

Attorney General: Yes, Your Honour.

Presiding Judge: How much time do you need for that purpose?

Attorney General: We have not yet received the additional material. Dr. Servatius will certainly take care of that; I assume we shall receive it. If the Court will give us a few days' time, I think we shall cope with that matter by Sunday.

Presiding Judge: By the way, Dr. Servatius, I think that the first copy of your final brief has been left with you. It is marked with my initials. Could you return it now? I shall return to you one of the other copies.

Dr. Servatius: Your Honour, the Presiding Judge, the pages have yet to be numbered; it will be returned at once. May I now also submit Kempner's book to the Court?

Attorney General: Should the Court need another copy of the book, we shall gladly submit it, for we have a copy.

Presiding Judge: That might be useful.

Dr. Servatius, after Mr. Hausner, the Attorney General, will have filed his further comments - if he will do so - you will have a further opportunity of closing remarks in that respect, too. How much time will you need for that purpose, should you wish to exercise this right?

Dr. Servatius: In that case, I shall need two days.

Presiding Judge:

Decision No. 101

The Attorney General will be at liberty to file his written comments on the written material which has been submitted today by Dr. Servatius. He will do so by next Sunday. Dr. Servatius will be entitled to reply to these comments in writing within two days from the receipt of the Attorney General's comments.

Could you supply us with a copy of that Argentinian law which has been mentioned by Dr. Servatius? It has been mentioned in the preliminary objections. Do you have the text of this law?

Attorney General: Your Honour, we have got a decision of an Argentinian Court which relies upon that law, and it is not in dispute that this is the law in Argentina.

Presiding Judge: That means that you do not have the law itself?

Attorney General: No, Your Honour, we do not have the law itself, but we could take care of this. It is no problem. If the Court needs a copy of the law, we shall take care of that.

Judge Halevi: I would prefer to see the text of the law.

Attorney General: We have relied upon the Dzerzhinski case. I have filed the decision in court.

Presiding Judge: Well - if you can, do supply us with a copy of the law. We shall be obliged to you.

Attorney General: Certainly, Your Honour.

Presiding Judge: The trial will now be adjourned for judgment. At any rate, as it looks now, judgment will not be given before the month of November of this year. You will receive approximately two weeks' notice before the date when judgment will be given.

[The Session closed at 14:30.]

The Judgment was read in sections by the Judges over five sessions of the Court: Session 115, December 11, 1960, Morning, Session 116, Afternoon, Session 117, Evening, December 12, 1961, Session 118, Morning, and Session 119, Afternoon.)

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