Judgment in the Trial of Adolf Eichmann 

[Part 21]

179. Also with regard to the scope of the duties, which were placed within his competence, the Accused made an attempt, in his Statement to the police and in his testimony before us, to play down his own personal involvement, in contradiction to the truth.  His repeated contention was that he was no more than an official dealing with the preparation of timetables for the trains which carried the deportees from their various countries to the East.  There is no doubt that even obtaining the necessary railway freight cars called for much effort, in view of military needs at a time of total war.  But it cannot by any means be said that here the Accused's duties ended.  His main work lay not in obtaining the freight cars, but in obtaining the Jews to fill them, in order to deport them for extermination and everything connected with this.  One cannot summarize the nature of this work by detailing his duties.  The purpose was a single one; the duties were many and varied, according to the constantly changing circumstances in any given place.  As the Accused said in his Statement on p. 2408:                  

"As far as evacuation was concerned...it was the duty of IVB4, as it were, to set the pace, for two reasons: first, the clear and resolute orders which had been given by the Reichsfuehrer-SS and Head of the German Police to carry out the matter energetically.  This was a permanent standing order.  Secondly, as I said before, IVB4 was dependent upon means of transport.  If there were periods when it was easier for IVB4 to obtain the freight cars, IVB4, in accordance with the general order from the Reichsfuehrer-SS and Head of the German Police, had to make strenuous efforts to ensure that the freight cars should be used to their maximum capacity.  This is what IVB4 did, of course...these were the two hinges on which the whole matter turned." 

"That the maximum capacity of the freight cars should be used" - thereby, in effect, everything has been said, and there is a vast difference between this and the mere arrangement of timetables.  This called for the creation of all the conditions preliminary to hunting down Jews wherever they lived and rounding them up for deportation.  At the other end also, attention had to be paid to the "reception" of the transports at their destinations, so that the deportation machinery should not be halted halfway; and it is clear, for example, that the speeding-up of the extermination process facilitated the reception of fresh transports at peak periods, such as the period of deportations from Hungary to Auschwitz.  Thus both the speed and methods of extermination also became part of the field of interest of the Accused and his Section.

The Accused's key position in everything relating to the deportations of the Jews from the Reich and the Protectorate stands out from the facts which we have found.  This is true also of all the European lands in which the Advisers on Jewish Affairs were active, and whose steps he used to control from his seat behind the desk in Berlin, with the aid of modern means of communication and through his frequent journeys to the focal points of operations throughout the length and breadth of Europe.  We have also noted his special activity in Hungary. 

As to the plundering of the property of the deported Jews, this went side by side with the deportation itself and was handled by the Accused's Section, especially through its jurists, Suhr and Hunsche.  We have quoted the evidence for this in detail above, and finally the Accused also admits that his Section was involved in the plunder ("dass das Dezernat IVB4 hier seine Finger schwerstens drin gehabt hat") (T/37, p. 2872). 

180. To sum up this section: We reject absolutely the Accused's version that he was nothing more than a "small cog" in the extermination machinery.  We find that in the RSHA, which was the central authority dealing with the Final Solution of the Jewish Question, the Accused was at the head of those engaged in carrying out the Final Solution.  In fulfilling this task, the Accused acted in accordance with general directives from his superiors, but there still remained to him wide powers of discretion which extended also to the planning of operations on his own initiative.  He was not a puppet in the hands of others; his place was amongst those who pulled the strings. 

It should be added - and we have already given the details in the appropriate place - that the Accused's activity was most vigorous in the Reich itself and in the other countries from which Jews were dispatched to Eastern Europe; but it also ranged widely in various fields of activity in Eastern Europe. 

The question arises: If such was the Accused's status, why was he not promoted to a higher rank, after his last appointment at the end of 1941, in spite of his rapid advancement in the preceding years.  The Accused gives the answer to this (T/37, p. 250):

 "And it was virtually impossible to promote me further because the post of Section Head, according to the establishment, was that of a Regierungsrat or Oberregierungsrat, and the equivalent SS rank...to Regierungsrat was Sturmbannfuehrer, and to Oberregierungsrat - Obersturmbannfuehrer.  Therefore, so long as I was a Section Head in the RSHA, I could not go any higher, even if I stayed there for twenty years."

 And it should also be remembered that in 1944, three decorations were conferred on the Accused, one after the other, including the "Distinguished War Service Cross, First Class, with Swords" (T/55 (13)).  It is not rare for a man in an important position - and especially in a position such as that of the Accused - to be unwilling to be prominent or for the ruling powers to wish him not to be prominent. 

Legal Analysis of the Findings of Fact in the Light of the Indictment

 181. The acts of the Accused against the Jewish People were detailed in eighth counts 1-8 of the indictment.  In all these counts, the Accused was charged with offences under Section 1 of the Nazis and Nazi Collaborators (Punishment) Law, 5710-1950.  This section defines three crimes for which the punishment is death:

 Crime against the Jewish People - Section 1(a)(1), and with this the Accused is charged in counts 1-4;

 Crime against humanity - Section 1(a)(2), and with this the Accused is charged in counts 5-7;

 War crime - Section 1(a)(3), and with this the Accused is charged in count 8.

 Section 1(b) defines the nature of these three crimes.

 182. We shall now devote our remarks to the Crime against the Jewish People, referred to in counts 1-4.  The legislator has specified in seven sub-sections the acts which he regards as a crime against the Jewish People.  We have to deal only with the first four sub-sections in this list, because counts 1-4 are parallel to these four sub-sections, as follows:

 (1) killing Jews, is dealt with in the first count;

 (2) causing serious bodily or mental harm to Jews, is dealt with in the third count;

 (3) placing Jews in living conditions calculated to bring about their physical destruction, is dealt with in the second count;

 (4) devising measures intended to prevent births among Jews, is dealt with in the fourth count.

 According to the first part of Section 1(b) of the Law, all these acts amount to a crime against the Jewish People only if they were committed with intent to destroy the Jewish People, in whole or in part.

 As to the periods during which the crimes were committed, the first and second counts mention the period 1939-1945 and, from the recital of facts, it appears that the reference in these counts is to the period which commenced with the outbreak of the Second World War in September 1939.  In the third count, the "period of the Nazi regime" is mentioned as the period of the commission of the crimes, and in the fourth count, the period is "commencing with the year 1942."

It has been proved that the specific intent to destroy the Jewish People, within the terms of Section 1(b), lay at the basis of the plan called "the Final Solution of the Jewish Question," from the time in mid-1941, when Hitler gave the order for general extermination.  The acts of murder and violence against the Jews, committed by the Nazi regime and under its influence from that time onwards, were committed without a shadow of a doubt with specific intent to destroy the Jewish People as such, and not only Jews as individuals.  Hence, also, the ruthlessness shown even towards little children, because those who sought to strike at the roots did not wish the survival of the new generation, which would ensure the future and continuity of the Jewish People. 

We have found above that information on the plan for the Final Solution reached the Accused at the beginning of the summer of 1941 (section 163 of the Judgment).  Further we have seen (sections 163-164) that, at the end of August 1941, the Accused sought to prevent the emigration of Jews from German-occupied territories, lest these Jews escape the Final Solution "which was now in the preparatory stage," and that, not later than mid-September 1941, the Accused paid his first visit to Globocnik in Lublin, and immediately afterwards took part in discussions about the first deportations from the Reich territory to the Lodz Ghetto.  It may be said that, from the moment he heard of the order for total extermination, the Accused did not sit with his arms folded, and that, from then onwards, all his activities as Referent for Jewish Affairs in the RSHA were co-ordinated and directed towards the target of the Final Solution.  But since in the evidence before us we have not found positive proof of specific action on the part of the Accused in the interim period between June and August 1941, we think it more cautious to find that his activity within the framework of the Final Solution commenced in August 1941. 

183.The facts which have been demonstrated, showed not only that the Accused knew of the intent to destroy the Jewish People, which lay within the plan for the Final Solution, but he personally was also permeated with this intent.  The very breadth of the scope of his activities is evidence of this.  Moreover, he prepared the material for Heydrich's address at the Wannsee Conference, both the statistical material and the section on the lesson to be learned from history, the lesson which dictated the complete extermination of the Jewish People (section 164).  We may recall his reference to "elements of much greater ethnic value who are more fertile," who must not be kept alive (section 116) and his statement on "the important biological material...whose emigration to Palestine is not desirable" (section 155).  All this also bears witness to the aim of biological extermination, directed against the entire Jewish People.  We shall further quote Hoess' statement about the Accused, solely in order to sum up the Accused's attitude on this question, which has in any case been well proved:

 "Eichmann was permeated with the conviction that if there would be success in destroying the foundations of Jewry in the East by complete extermination, then Jewry as a whole would never recover from this blow.  For the assimilated Jews of the West, including America, are not able - nor do they wish - to replace the enormous losses in blood, since amongst these Jews there is no expectation of offspring in considerable numbers." (Hoess on Eichmann, T/88, p. 3)

The question arises whether this same intent to destroy the Jewish People existed in the heart of the Accused already at an earlier date, before he was informed in 1941 of the Final Solution.  In the third count, Section (b), of the indictment, the Attorney General charges the Accused with causing grave bodily and mental harm to millions of Jews, during the entire period of the Nazi regime, with intent to destroy the Jewish People, and in the list of acts in section (d), supra, mention is made of mass arrests of Jews and their torture in concentration camps, such as Dachau and Buchenwald, and the organization of mass persecutions on the Crystal Night, the organization of a social and economic boycott of Jews, and stigmatizing them as a  subhuman racial group, and the implementation of the Nuremberg Laws.

184. With regard to the period up to the outbreak of war, the acts specified in section (d) of the third count were not yet part of the programme for the Final Solution by way of complete physical extermination.  Accordingly, we have to consider separately each of these series of acts - for example, the events of the Crystal Night.  If so, there is, in our view, grounds for saying that the mass acts of violence, committed by the National Socialist regime up to the outbreak of the War, as for instance the dispatch of thousands of Jews to concentration camps, were already committed with intent to destroy the Jewish People in part, and therefore they already come within the definition of "crime against the Jewish People," within the meaning of Section 1(a)(1) of the Nazis and Nazi Collaborators (Punishment) Law; for it was clear from the outset to those who sent the Jews to the concentration camps because of their being Jews, that the prisoners would be placed there in such living conditions as would cause many of them to die - and this was the purpose of those who sent them there.  But there is no need for us to decide this question finally, because, in our view, it has not been proved that, until his transfer to Vienna in 1938, the Accused had already taken an active part in the mass persecutions mentioned in section (d) of the third count.  We have explained above (in section 62) that up to that date the Accused was engaged in intelligence work and not on executive measures.  We have also found that it has not been proved that the Accused participated in the organization of the Crystal Night in Austria (Section 64). 

185. With regard to the activity of the Accused in the Central Office for Emigration in Vienna, Prague and Berlin, designed to bring about the forced emigration of Jews, we have found that here the Accused exerted pressure and used threats of terror (Section 65).  Amongst other things, he also threatened to send Jews to a concentration camp if emigration were not speeded up as he wanted.  We have come to the conclusion that these threats do not amount to active participation in dispatching Jews to concentration camp or in what occurred inside these camps.  The organization of forced emigration itself was not yet accompanied by intent to destroy the Jewish People, but there is no doubt that in the circumstances that have been described these were acts of expulsion of a civilian population which fall within the definition of "crime against humanity." 

186. With regard to the expulsion of Jews, in the organization of which the Accused was engaged in what we have called above the "second stage," that is to say, between the beginning of the War and mid-1941, namely the deportations to Nisko, the evacuation of Jews from the areas annexed to the Reich in the East (the Warthe district, etc.) and from Vienna, the expulsion of the Jews from Stettin, and from Baden and the Saar Palatinate (sections 72-75, 77): We have found that these were organized by the Accused in complete disregard for the health and lives of the deported Jews.  So, too, it has been proved that many Jews died as a result of the expulsions from Nisko, Stettin and the Warthe district. There is no doubt that here, there was cruelty which bordered on premeditated malice, and we have weighted carefully whether or not the Accused foresaw the murderous consequences of these deportations, and this was what he wished.  But in the final analysis, a doubt remained in our minds as to whether there was that intentional aim to exterminate which is required for the proof of a crime against the Jewish People, and we shall, therefore, deal with these inhuman acts as being crimes against humanity.

 187. We must now analyze the legal aspects of the Accused's acts during the third stage, namely the stage of the Final Solution.

The Attorney General argued that the plan for the Final Solution must be regarded as a criminal conspiracy for the carrying out of the countless criminal acts connected with the extermination of the Jews within the area of German influence.  The Accused participated in this criminal conspiracy and, therefore, must be held liable ipso facto for all the offences committed to bring about its implementation, whether by a given action or a series of given actions, in whatever geographic area or any area of activities, whether committed with the active participation of the Accused or not.  The Attorney General based this argument on the judgment of the Supreme Court in the case of Kaiser (C.A. 88/58, Piskei Din 12, 1628) and especially on the following passage (p. 1642): 

"Sections 35, 36 (Criminal Code Ordinance, 1936) stand by themselves in their definition of a specific crime.  We are bound by virtue of Section 4 of the Ordinance to interpret it according to English law.  In my opinion, under English law, the offence of conspiracy connotes a substantive rule of law, whereby the conspirators are jointly liable, and this without having regard to the general rules as to complicity.  The conspirators are not mutually responsible for their deeds because they are partners to a crime within the meaning of Chapter V of the Criminal Code Ordinance, but because of an independent rule in the Law of Conspiracy."      

We are of the opinion that the Kaiser case is to be distinguished from the case before us, for two reasons: 

(a) There, the Accused were charged in the indictment, inter alia, also with specific offences of conspiracy, whilst in the matter before us the Attorney General did not include in the indictment a count of criminal conspiracy. 

(b) As far as we could ascertain, in the Kaiser case the offences against the Accused were misdemeanours, and the punishment to which the perpetrators of the completed crimes were liable did not exceed, or did not greatly exceed, the punishment provided in Sections 35 and 36 of the Criminal Code Ordinance, for a party in a conspiracy to commit misdemeanours (two years imprisonment).  It is to be noticed that the Supreme Court in its dictum cites only Sections 35 and 36, and not Section 34, which deals with criminal conspiracy for the commission of a crime.  In the case of a crime, punishments may vary considerably; in the case before us, the difference is between a sentence of seven years imprisonment for the offence of conspiracy, and the death sentence for the crimes themselves.

188. We hesitate to accept the proposition put forward by the Attorney General, as a general rule applicable in all cases.  We do not consider that a person who consents to the perpetration of a criminal act or acts (for this is the essence of the conspiracy), makes himself ipso facto liable, without any additional ground of responsibility, as actual perpetrator of all those acts.  It is true - and thus it was held in the case of Goldstein (C.A. 129/54, Piskei Din 10, 505) - that there exists a rule of substantive law, that once a criminal conspiracy has been entered into, then each of the conspirators becomes the agent of the others for the purpose of the conspiracy, so that every act committed by one of the conspirators, during the existence of the conspiracy, is deemed to be the act of all the conspirators, even if committed in their absence and without their previous knowledge.  But here the emphasis is on the words "for the purpose of the conspiracy," and this ruling does not apply to the completed crime.  Thus we also interpret the dictum appearing in an English judgment, in the case of Sweetland (1958) 42 Cr. App. R., quoted by the Attorney General: 

"Every act done by a conspirator in furtherance of the conspiracy is done on behalf of all the conspirators." 

In our opinion, the words "for the purpose of proving conspiracy" must also be added here.  If we accepted the Attorney General's argument, we would destroy the statutory framework of Sections 23-25 of the Criminal Code Ordinance, defining the responsibility of the various partners to a crime.  Such responsibility demands, in every case mentioned in those sections, something more than mere consent, such as soliciting, aiding, abetting, and even in the extreme case of common purpose, dealt with in Section 24, at least the presence of the Accused at the commission of the crime. 

189. We are also of the opinion that in general the sections of our law are in conformity with the rules of English Common Law, from which they are derived.  For instance, in the case of Bullock (1955) 1 All E.R. 15, the Court of Appeal in England quotes these words from a previous judgment - R.v. Lomas (1913) 9 Cr. A.R. 220): 

"Mere knowledge that the principal intends to commit a crime does not constitute an accessory before the fact."

And the Court adds:

 "Mere knowledge is not, of itself, enough; there must be something further."

 And so also in the case of Crofts (1944) K.B. 295, where a man and a woman agreed together to commit suicide.  The woman committed suicide, but the man did not keep the agreement.  He was charged as an accessory to the crime of murder.  The court says there:

 "This court is of opinion that mutual agreement to commit suicide amounts to such a counselling, procuring, inducing, advising or abetting as constitutes the survivor an accessory before the fact, even if he is not present when the other party to the agreement commits suicide..."

 that is to say, that the court found, in the circumstances, that in the very act of agreement there was also an element of mutual procuring and abetting to commit the offence.  In the language of our law, we should say that the man was found guilty as an accomplice to the crime under Section 23(1)(b), (c) or (d), and not because of the mere fact of the agreement made with the woman, which, in English law, is considered a criminal conspiracy. 

In Russell on Crime, 11th edition, vol. 1, pp. 146-147, it is explained that a person may be convicted as an accomplice also by reason of "constructive presence" during the act, but on condition that he participates in the act by aiding, abetting or even by encouraging the principal offender, whilst the latter carries out his criminal intent.  Here, too, we  see no deviation from the law embodied in our Sections 23-25.

190. Although we did not accept the Attorney General's argument as put forward by him in his summing up, we are of the opinion that his general approach is correct, viz. that all the acts perpetrated during the implementation of the Final Solution of the Jewish Question are to be regarded as one single whole, and the Accused's criminal responsibility is to be decided upon accordingly.  In our opinion, this is to be concluded not from the law of criminal conspiracy, but from the very nature of the "Final Solution," as being a crime against the Jewish People, in accordance with the legal definition of that crime. 

Elsewhere in this judgment we have already explained that, when drafting the definition of the Crime against the Jewish People, our legislator received his inspiration from the Convention for the Prevention of the Crime of Genocide.  What is it that endows this crime with its special character in the criminal law of a state which adopts in its domestic legislation the definition of the crime of genocide?  The answer is: the general sum total form which this crime is liable to take.  This form is already indicated by the definition of the criminal intention necessary in this crime, which is general and total: the extermination of members of a group as such, i.e., a whole people or part of a people.  As the Supreme Court said in the case of Pel (C.A. 119/51, Piskei Din 6, pp. 489, 502): 

"By Section 1 of the Nazis and Nazi Collaborators (Punishment) Law, 5710-1950, a person may also be found guilty of an offence which he in fact committed against specific persons, if the offence against those persons was committed as a result of an intent to harm the group, and the act which was committed by the offender against those persons was a kind of `part performance' of his malicious intent against the whole group, be it the Jewish People or any other part of the civilian population." 

But the distinction does not lie only between the intention required in the crime of genocide and in the individual crimes of homicide perpetrated during the commission of that crime; but also the criminal act itself ( actus reus) of genocide is different in its nature from the sum total of all the murders of individuals and the other crimes perpetrated during its execution.  The people, in its entirety or in part, is the victim of the extermination which befalls it through the extermination of its sons and daughters. 

191. The comprehensive nature of the crime against the Jewish People flows from the language of the definition in Section 1(b) of our Law; not only is the criminal intention, as required by the definition, an intention to exterminate directed against the Jewish People as such, but also the criminal act is defined in words which clearly connote the essence of the crime as an attack upon a group of people as such.  It says there, "the killing of Jews," "causing serious harm to Jews," etc. - all this is in undetermined numbers, in complete contradistinction to the definitions of the usual crimes against the body, which are always referred to as attacks upon a person as an individual. 

192. There is, of course, no better illustration of what we have said just now than the "Final Solution" itself.  Here the basis of the crime lay in Hitler's order to achieve the physical extermination of the Jews.  This was not an order to exterminate the Jews of Germany, France, Hungary, Poland, Soviet Russia - each group separately.  It was not an order to exterminate first one million Jews and later another million, and so on; but the order was one comprehensive order, and the desire of the main conspirators and perpetrators was identical with the wish of the original initiator - general and total.  Their criminal intention did not renew itself from time to time; it was not limited, for instance, to the first deportations to Lodz, Minsk and Riga, so that when these deportations were completed, it had been implemented completely and was renewed with the following deportation; but the criminal intent was continuous and embraced all activities, until the whole operation had been completed. 

193. This also applies to the objective aspect of the "actus reus."  When the order to exterminate the Jews was given, it was evident that this was a most complicated operation.  It was not easy to kill millions, dispersed amongst the general population.  The victims had to be found and isolated.  Not every place is convenient for killing.  Not everywhere will the population submit to the killing of their neighbours.  Therefore, the victims had to be transferred to suitable places.  It was wartime.  Labour was needed.  Manpower should not be wasted, and, therefore, the working capacity of the victims themselves had to be exploited as long as their muscles could function.  It was therefore clear from the outset that a complicated apparatus was required to carry out the task.  Everyone who was let into the secret of the extermination, from a certain rank upwards, was aware, too, that such an apparatus existed and that it was functioning, although not everyone of them knew how each part of the machine operated, with what means, at what pace, and not even at which place. Hence, the extermination campaign was one single comprehensive act, which cannot be divided into acts or operations carried out by various people at various times and in different places.  One team of people accomplished it jointly at all times and in all places. 

194. Hence, everyone who acted in the extermination of Jews, knowing about the plan for the Final Solution and its advancement, is to be regarded as an accomplice in the annihilation of the millions who were exterminated during the years 1941-1945, irrespective of the fact of whether his actions spread over the entire front of the extermination, or over only one or more sectors of that front.  His responsibility is that of a "principal offender" who perpetrated the entire crime in co-operation with the others.  With due apologies, we shall illustrate our meaning by an example which may seem incongruous, but it may serve to clarify what we have said: Two persons may collaborate in the forging of a document, each one of them forging only a part of the document.  In such a case, they are both responsible as principal offenders, for in the words of our Code (Section 123(1)(a)), each one of them "perpetrated one of the acts which constitute the crime," and it is not necessary that both be present at the same time, while each one commits his part of the offence. 

This is the prevailing rule also in the English Common Law (Macklin, 168 E.R. 1136; Glanville Williams, Criminal Law, p. 177), and also in the law of the United States.  We quote from Wharton's Criminal Law, 12th ed., vol. 1, p. 340, para. 255): 

"If part of a crime also be committed in one place and part in another, each person concerned in the commission of the offence is liable as principal." 

195. The Accused was privy to the extermination secret, as from June 1941.  As from August 1941, he began to be active in the furtherance of the extermination campaign, occupying a central place in it.  We saw that the intention of his deeds was the total biological extermination of the entire Jewish People.  We saw the commencement of his actual activities in his letter dated 28 August 1941, wherein he acted to prevent the emigration of Jews, since preparations for the Final Solution were being made.  From a legal point of view, this was an act of aiding, committed in order to facilitate the extermination of Jews in accordance with the plan for the Final Solution.  Not later than September 1941, or close to that time, the Accused made his first trip to Globocnik on Heydrich's order.  Even if this journey was made only in order to gain information on what Globocnik was doing, for the Accused's superiors in the RSHA, this was also an act of aiding, towards the planning of future extermination activities by the heads of the RSHA.  Henceforth, all the Accused's activities in rounding-up the Jews and transporting them for extermination, including all the planning and the organization required, were directed not only towards an isolated transaction, such as the killing at Auschwitz of the Jews deported there by him in a certain transport, immediately or after a time, by way of "extermination through labour," but they were done within the general framework expressed concisely in Hitler's order, and detailed in Heydrich's speech at the Wannsee Conference, as confirmed by all those present there. 

Hence, the Accused will be convicted (if no justification for his acts are found) of the general crime of the "Final Solution" in all its forms, as an accomplice to the commission of the crime, and his conviction will extend to all the many acts forming part of that crime, both the acts in which he took an active part in his own sector and the acts committed by his accomplices to the crime in other sectors on the same front. 

196. As we see it, the first and second counts of the indictment complement each other in describing the activities connected with the Final Solution: The first count describes the killing of Jews as a result of the implementation of the Final Solution, and, therefore, the second count must be limited to those Jews who were subjected to conditions of life which were such as to bring about the physical extermination through the implementation of the Final Solution, but remained alive.  We shall, therefore, relate this count, for instance, to those Jews who were deported to Auschwitz during the period of the Final Solution, and there put to hard labour, with the intention of killing them, too, in time, in some way; but who were saved because of the advance of the Soviet army.  We do not think that the conviction of the second count should also include those Jews who were not saved, as if, in their case, there were two separate actions: first, subjection to living conditions calculated to bring about their physical destruction, and later the physical destruction itself. 

197. We shall not content ourselves with what we have said up till now about the Accused's responsibility for actions connected with the Final Solution, but alternatively we shall continue and examine his responsibility, assuming, contrary to our opinion, that he is responsible only for those actions connected with the Final Solution in which he personally participated.  The factual basis for this examination is to be found in the detailed description of the activities of the Accused and his Section in the previous sections of this Judgment, and we do not intend to repeat the details here.  We found that the focus of his activities was within the Reich itself, the Protectorate, and in the countries of Europe to the west, north, south, southeast and Central Europe.  During the period of the Final Solution, the Accused acted against the Jews in those countries in all the various ways which have been described, in order to round them up and transport them towards their death in the East.  Expressing his activities in terms of Section 23 of our Criminal Code Ordinance, we should say that they were mainly those of a person soliciting by giving counsel or advice to others, and of one who enabled, or aided others in that act (Section 23(1)(b), (c) and (d)).  But we wish to emphasize that in any case the Accused is regarded as committing the crime itself, according to the opening part of Section 23(1), whether he committed an act in order to facilitate or to aid another in carrying out the extermination (Section 23(1)(b) and (c)), or whether he counselled or solicited others to exterminate (Section 23 (1)(d)).  But more important than that: In such an enormous and complicated crime as the one we are now considering, wherein many people participated at various levels and in various modes of activity - the planners, the organizers and those executing the acts, according to their various ranks - there is not much point in using the ordinary concepts of counselling and soliciting to commit a crime.  For these crimes were committed en masse, not only in regard to the number of the victims, but also in regard to the numbers of those who perpetrated the crime, and the extent to which any one of the many criminals were close to, or remote from, the actual killer of the victim, means nothing as far as the measure of his responsibility is concerned.  On the contrary, in general, the degree of responsibility increases as we draw further away from the man who uses the fatal instrument with his own hands and reach the higher ranks of command, the "counsellors" in the language of our Law.  As regards the victims who did not die but were placed in living conditions calculated to bring about their physical destruction, it is especially difficult to define in technical terms who abetted whom: he who hunted down the victims and deported them to a concentration camp, or he who forced them to work there. 

Let us combine the examination of the Accused's criminal responsibility according to the alternative assumption we have made above. 

We have found the extent of the measure of his activities in the areas annexed to the Reich in the East, the Warthe district, including the Lodz Ghetto, Bialystok, etc., where he was active in considerable measure (sections 133-134), and have found the measure of his activity in the Generalgouvernement area, where the Accused acted concurrently with others (sections 135-137).  We have described his activity in areas conquered in the East (section 138), and his activity in connection with the Operations Units, when he visited Minsk, not later than September 1941, and later on by participating in directing their activities as from the spring of 1942 (section 139).  As to the camps, we found that the Accused encouraged Globocnik to continue the extermination operations in his camps in the Lublin area (sections 141-142), and this, too, is an act of abetting, within the meaning of the last part of Section 23(1)(c).  We have described the extent of the Accused's activities in what took place in the Auschwitz camp (143-146).  We have also described his rule over the Terezin Ghetto (sections 150-152) and over Bergen-Belsen camp (section 153).  We have dwelt upon his part in introducing the method of killing by means of gas vans, the introduction of the method of killing by Zyklon B gas at Auschwitz and in the supplying of this gas to the victims whom he transported from European countries, including the Generalgouvernement area (sections 132, 137), to the ghettos, to the Operations Units and to the camps in the East, in order to have them exterminated there, whether earlier or later.  It appears, therefore, that even if we view each sector of the implementation of the Final Solution separately, there was not one sector wherein the Accused did not act in one way or another, with a varying degree of intensiveness, so that this alternative way would also lead us to find him guilty all along the front of extermination activities.

 199. The third count in the indictment refers, as has been mentioned, to the entire period of the Nazi regime, and should therefore be divided into two periods of time: the one including the first two stages of the persecution of the Jews, and the other, the last stage, beginning in the summer of 1941.  Here, too, the accusation is of a crime against the Jewish People, this time by causing serious bodily or mental harm to Jews.  In connection with the first stage, until the outbreak of war, we have already said that the Accused's participation in the activities mentioned in section (d) of this count has not been proved (sections 184, 185).  In connection with the second stage, we have held, out of doubt, that at that time the intention to exterminate did not yet exist in the mind of the Accused (section 186).  As to the last stage - beginning August 1941 - there is no doubt that causing serious bodily harm to Jews was a direct and unavoidable result of the activities which were carried out with the intention of exterminating those Jews who remained alive, for instance the witnesses to the catastrophe who have given evidence in this case.  In the language of the third count, section (c), it has been proved that,

 "...the Accused, together with others, caused this grave harm by means of enslavement, starvation, deportation and persecution, confinement to ghettos, to transit camps and to concentration camps - all this under conditions intended to humiliate the Jews, to deny  their rights as human beings, to suppress and torment them by inhuman suffering and torture,"   and all this with the intention of exterminating the Jewish People.

The fourth count speaks of devising measures intended to prevent child-bearing among the Jews.  The time is limited to the period beginning in the year 1942.  In this count, the Attorney General apparently did not mean that part of Heydrich's speech at the Wannsee Conference where he talked about segregating the sexes during the deportation of the Jews to the East.  In any case, we do not think that the prevention of child-bearing was an explicit part of the Final Solution plan, as put by Heydrich before the participants at the conference, although action against the Jews in preparation for the Final Solution was in many places accompanied by segregation of the sexes.  We shall, therefore, confine ourselves to the concrete matters mentioned in section (c) of the fourth count - the Accused's order to prevent child-bearing in Terezin has been proved, though it has not been proved that he took part in giving directives for the prevention of child-bearing in the Kovno Ghetto (section 159).  In connection with the sterilization of the descendants of mixed marriages (Section (c)(3) of the fourth count), as stated above, the negotiations conducted with the participation of the Accused did not reach a final result, and we do not know if the means there discussed were actually employed (section 158).  In Section 1(b)(4) of the Law, it says "devising measures, etc.," seemingly along the lines of Section 2(d) of the Convention on the Prevention and Punishment of the Crimes of Genocide, wherein the expression "imposing measures" is used.  We are of the opinion that "devising measures" here means actually putting these measures into effect, at least to the stage of giving orders to carry them out.  This has not been proved against the Accused in the matter of sterilization.

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