[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
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
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
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
2The 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
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
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
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
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
Attorney General: There was an amendment, but it has not
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
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
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
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
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
“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
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.