Judgment in the Trial of Adolf Eichmann 

[Part 23]

212. The twelfth count of the indictment charges the Accused with a crime against humanity, regarding approximately 100 children, residents of the village of Lidice in Czechoslovakia.  According to the indictment, the Accused participated in their deportation, their transport to Poland, and their murder there. 

The Accused denied all activity in, or knowledge of, this act, and Counsel for the Defence also contends that the murder of the children was not proved.  In addition to the documentary material, we also have before us in this matter Krumey's evidence, Mrs. Freiberg's statement (N/19), and the evidence submitted in the case of Greifelt and others (the case against the Head Office for Race and Resettlement, Green Series, vol. 4, p. 599; and vol. 5), especially in the evidence of Maria Hanfova (vol. 4, p. 1033).  In connection with this evidence, we mention our Decision No. 48 given on 24 May 1961 (Session 50, p. 904).  

From all this material, the following picture emerges: After the Nazis had wrought their deeds at Lidice, two transports of children from the village were sent to Lodz.  The first transport consisted of 91 children (a list of names is attached to exhibit T/1091), but in fact only 88 children arrived, for three children had been removed from the transport as being "fit for Germanization."  While they were in Lodz, an additional seven children out of the remaining 88 were removed for Germanization (a list of names, dated 20 June 1942, is attached to the evidence of Krumey).  With these seven was Maria Hanfova who gave evidence at Nuremberg (in both lists her name is given as "Hankova").  The remaining 81 children were put into a camp at Lodz, from which they were removed on 2 July 1942.  The Attorney General contends that these 81 children were removed to the East.  And, indeed, it says on the printed copy of Form T/1095: "To the Generalgouvernement, 81 Czechs."  But the photocopy of the original document, which was put before the Accused as exhibit T/37(246), leaves a doubt, for there three items are crowded into the space intended for the description of those who are "leaving," and the remark "81 Czechs" does not appear on the line reading "To the Generalgouvernement" but just above this line.  On the strength of this document, it is impossible to establish with certainty where the children were sent.  But on the strength of the document dated 2 July 1942, also attached to the evidence by Krumey, it can be established that the children were handed over to the Lodz Stapo.  This document reads as follows: 

"Confirmation: In accordance with a cable from the Head Office for Reich Security, 81 Czech children, who were temporarily lodged in the camp at 41 Gneisenau Street, were handed over today, 2 July 1942, to the Litzmannstadt Stapo." 

The document is signed by two SS men, the one who handed over the children, and the other as the one receiving them. 

We did not learn any more about the fate of these 81 children.  Immediately after, there is a further transport of 18 children, six of whom are destined for Germanization and are immediately transferred to a certain children's home.  The remaining children were handed over on 25 July 1942 to the Lodz Stapo (exhibit T/1099), and according to the confirmation of the delivery and the receipt, in the meantime these twelve children were also in the above camp. 

Hence, we are concerned with 93 children handed to the Lodz Stapo, and with 16 children transferred for Germanization.  It seems that the indictment refers only to the 93 children, and in any case it has not been proved that the Accused fulfilled any function in connection with the sixteen children who were transferred for Germanization.  These (or some of them) were at the Puschkau Home near Poznan, as transpires from the evidence given by Maria Hanfova at the trial in Nuremberg.  We are, therefore, convinced that the children whom Mrs. Freiberg mentions in her declaration (N/19) are the children intended for Germanization, and are not from amongst the other 93 children who, according to the argument of the Attorney General, were murdered.  We shall comment here that the kidnapping of children for "Germanization" is also considered a crime against humanity (see the case against Greifelt and others - Green Series, vol. 5, p. 96). 

213. There is no doubt that these 93 children were deported and that the Accused took part in their deportation.  Krumey, who, at the time, was head of the Centre for the Change of Residence, referred a question to the Accused, asking what to do with these children (T/1093 in regard to 81 children, and T/1098 in regard to 12 children).  He also spoke to the Accused in person (in T/1093 it says "Reference: a conversation with SS Obersturmbannfuehrer Eichmann").  Although the instructions given by the Accused's office in connection with the 81 children are not before us, we have before us the instructions (signed by Guenther) in connection with the twelve children (T/1099).  It says that the children are to be handed over immediately to the Lodz Stapo, "which has received further orders."  Since, in accordance with these orders, the children were handed over to the Lodz Stapo, and since a cable of the RSHA is also mentioned in the first confirmation dated 2 July 1942 in connection with the 81 children, the inescapable conclusion is that the same orders which were given by the Accused's Section concerning the twelve children in exhibit T/1099, were also given in connection with the 81 children.  No importance is to be attached to the fact that it was Guenther who signed the cable T/1099, nor to the Accused's denial, but the action taken by his Section is to be considered as the Accused's action, especially since his personal activity in this matter is evident from the aboveÞmentioned remark about the conversation held with him which appears in exhibit T/1093. 

On the other hand, it has not been proved that the Accused's Section had any part in the murder of these 93 children, and it has also not been proved beyond reasonable doubt, according to the evidence before us, that they were murdered.  The Attorney General proposes that the Court conclude this from: 

(a) The letter (or cable) dated 12 June 1942, number 346/42, signed by Fischer, attached to the evidence by Krumey, in which it is stated: 

"The children who are not suitable for Germanization are being transferred there, and they are to be sent on in the proper way through the Polish camps situated there... The children bring with them nothing but what they have on their persons.  There is no need to take special care of them."

 (b) The letter T/1094, where Krumey writes that he applied in this matter to Section IVB4, assuming "that these were intended for special treatment." 

The representatives of the Attorney General and of the Accused were present at the interrogation of the witness Krumey, but it is not clear to us who showed Krumey the above letter, dated 12 June 1942.  Krumey's reaction to the letter was that he did not remember the various letters sent to him on the subject (p. 8), but did not doubt its authenticity.  But then the contents of the letter are not unequivocal, especially since it was not sent by the Accused's Section, but by the Commander of the Security Police in Prague, and the question whether, as regards non-Jews, the Commanders of the Security Police were subordinate to the Accused's Section is not clear to us. 

As to the term "special treatment" - in the year 1942 this most certainly had only one meaning when used in regard to Jews: If in the year 1942 Jews were taken for special treatment, they were killed.  The same unequivocal meaning has not been proved to us in regard to others.  Counsel for the Defence submitted to us forms N/108 in connection with "special treatment" for Poles.  There is ground for the assumption that in one of the forms the reference is to killing, in connection with a Pole who is not "suitable for Germanization."  But a doubt still persists, especially as, according to the letter of 12 June 1942 cited by us above, the children are to be sent to camps for Poles.  We know that Poles from Zamosc were sent to extermination, but it has not been proved that Poles sent from Lodz were similarly treated.  Finally: The term "special treatment" was used by Krumey, and he assumed that this is what was in store for the children.  The term does not appear in cable T/1009 sent by the Accused's Section. 

In conclusion, as regards the Accused, it has been proved only that he participated in the expulsion of the 93 children of Lidice from their homeland, and he thus took part in the commission of a crime against humanity. 

Counts 13-15 of the Indictment 

214. In the three last counts of the indictment, counts 13-15, the Prosecution charges the Accused with offences against Section 3 of the Law, viz., membership in SS organizations, the SD and the Gestapo, which are, according to the Prosecution's submission, hostile organizations within the meaning of this Section.

 The Accused's membership in those organizations is not in dispute, but the Defence puts forward two arguments:

 (a) The Prosecution must prove that these organizations were criminal organizations, and this has not been proved.

 (b) Our law obliges the Court to punish without proof of guilt, and the Court should refrain from applying such a law; neither is it authorized to fill in the gaps in the law by searching for, and perhaps finding, guilt, where the law itself ignores its existence and the need for proof.

 According to our system of law, the Court is not allowed to ignore the legislator's will, as is proposed by Counsel for the Defence in his second argument.  But, in fact, this is not a case of charge without guilt, and the answer to Counsel's two arguments is to be found in the wording of Section 3 itself.

 The definition of "a hostile organization" in Section 3(b)(1) is not self-contained, but refers us to findings of the International Military Tribunal.  That Tribunal did not merely declare that the SS, the SD and the Gestapo were criminal organizations, but it laid down additional conditions without which nobody can be found to be liable because of his membership in the above-mentioned organizations.

 To quote the decisive findings of the International Military Tribunal:

 (a) In regard to the Gestapo and the SD, the English edition, vol. 22, p. 511 (German edition, vol. 1, p. 301):

 "The Tribunal declares to be criminal within the meaning of the Charter the group composed of those members of the Gestapo and the SD holding the positions enumerated in the preceding paragraph who became or remained members of the organization with knowledge that it was being used for the commission of acts declared criminal by Article 6 of the Charter, or who were personally implicated as members of the organization in the commission of such crimes."

 (b) In regard to the SS, ibid. at p. 517 (German edition, ibid., p. 307): 

"The Tribunal declares to be criminal within the meaning of the Charter the group composed of those persons who had been officially accepted as members of the SS as enumerated in the preceding paragraph who became or remained members of the organization with knowledge that it was being used for the commission of acts declared criminal by Article 6 of the Charter, or who were personally implicated as members of the organization in the commission of such crimes ..."      In both findings, we have emphasized the last words, because upon them we are about to base the conviction of the Accused in regard to these counts in the indictment.  The crime of extermination of the Jews during the War was expressly declared by the International Military Tribunal also to be a crime within the meaning of the London Charter.  In the present Judgment we have found that the Accused personally participated in the commission of this crime, and there is no doubt that he did so participate in its commission in his capacity as a member of the Gestapo, the SD and the SS; hence his criminal responsibility as a member of those organizations.

 215. Therefore, our answer to the two arguments by the Defence is: The Prosecution did not have to prove the criminal nature of the three organizations as such, because the charge is not merely of membership in these organizations.  The Prosecution had to prove the Accused's membership in these organizations - and this membership is not in dispute - and in addition that the Accused took part in the commission of crimes, as a member of these organizations - and this has been proved.

 The Attorney General mentioned that under Section 13(b) of the Law the offence according to Section 3 is prescribed after the lapse of twenty years.   The decisive time in this 

case is May 1940, because it was in May 1960 that the warrant for the arrest of the Accused was issued in Israel for the first time.  It has been proved that after May 1940, as a member of the three hostile organizations mentioned in the indictment, the Accused took part in the commission of crimes.  In fact, most of his criminal activities were committed after this date.  Therefore he is to be convicted also on counts 13-15 of the indictment.

 Obedience to Orders, and the Accused's Attitude Towards his Deeds

 216. The Accused's principal defence is that everything he did was in accordance with orders from his superiors.  This he regards as full justification for all his deeds.  He explains that his SS training inculcated in him the idea that blind obedience is of primary importance, obedience based on boundless confidence in the wise judgment of the leadership, which will always know what the good of the Reich demands and will give its orders accordingly.  At the end of the trial, we heard this argument in its most extreme form from Counsel for the Defence, as follows:

 "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" (Session 114, Vol. V, p. xxx39.)

If by these words Counsel for the Defence intended to describe a totalitarian regime, based on denial of all law, as was Hitler's regime in Germany, then his words are indeed apt.  Such a rule seeks to turn the citizen into an obedient subject who will carry out an order coming from above, be it an order to commit an injustice, to oppress or to murder.  It is also true that under such a regime the criminal who obeyed a criminal leader is not punished, but, on the contrary, is rewarded, and only when the entire regime collapses will he become amenable to justice.  But such arguments are not to be voiced in any state in the world which bases itself on the rule of law.  The attempt to turn an order for the extermination of millions of innocent people into a political act, with the aim of thus exempting from their personal criminal responsibility those who gave, and those who carried out, the order is of no avail.  And do not let Counsel for the Defence console us with the promise of a world government to come, when such "acts of state" will become a thing of the past.  We do not have to wait for such a radical change in the relations between nations, in order to bring a criminal to judgment, according to his own personal responsibility for his acts, which is the basis of criminal judgment all over the world. 

We have already considered in another chapter of our Judgment the Defence argument of "act of state" in international law, and have concluded that this cannot avail the Accused.  At this point we shall only add that also according to the positive laws of the State of Israel, there is no such justification to absolve the Accused from responsibility for the crimes he committed, although they were committed at the command of one of the state authorities.

 The personal responsibility of a government official for his acts is the basis of the rule of law, which we have adopted at the inspiration of the Common Law.  It is thus explained by Dicey, Law of the Constitution, 10th edition, Chap. XI, p. 326:

 "The minister or servant of the Crown...is legally responsible for the act in which he is concerned, and he cannot get rid of his liability by pleading that he acted in obedience to royal orders.  Now supposing that the act done is illegal...he becomes at once liable to criminal or civil proceedings in a court of law."

 217. An additional argument, in spirit similar to the former, which the Counsel for the Defence hinted at - rather than argued explicitly - is that the Accused could have relied for his defence upon the laws of war.  In his summing up he said: 

"A declaration of war against the Jews was not made; however, there is a close relationship between the war and the fight against Jewry."  (Session 114, Vol. V. pp. xxxx)

Here, too, it would have been better had this argument not been put forward.  It is true only that Nazi propaganda declared the Jews "enemies of the Reich," and for this purpose also exploited Dr. Weizmann's declaration at the Zionist Congress, on the eve of the outbreak of World War II, that the war of the Western democracies is the war of the Jewish People (Session 112, Vol. V., p. 81).  As the Attorney General said, would that the Jews under the rule of Hitler had been granted the status and privileges of prisoners of war.  But this "war" took the form of deporting helpless people to be slaughtered by citizens of the state in which they lived, without any reason save that of gratuitous hatred and without any aim save that of their extermination.  It is true only that the state of war between Germany and the Allies created conditions convenient for the implementation of the "Final Solution," by enveloping the territory under German rule in a smoke screen, which veiled much of what was going on there from the eyes of the world, and made it easier to perpetrate the slaughter without outside interference. 

218. A serious legal discussion of this subject is possible only within the compass of the argument of "superior orders."  But according to our law, this plea also cannot lead to the Accused's acquittal of his criminal responsibility whenever the indictment is under the Nazis and Nazi Collaborators (Punishment) Law (hereinafter: the Law).  Section 8 of the Law states:

 "Sections 16, 17, 18 and 19 of the Criminal Code shall not apply to offences under this Law."

 Section 19(b) of the Criminal Code Ordinance, 1936, is the one dealing with "superior orders," as follows: 

"A person is not criminally responsible for an act or omission if he does or omits to do the act in any of the following circumstances, that is to say:....

 "(b) In obedience to the order of a competent authority which he is bound by law to obey, unless the order is manifestly unlawful.

 "Whether an order is or is not manifestly unlawful is a question of law."

 In spite of Section 8 of the Law, importance still attaches to the provisions of Section 19(b) of the Criminal Code also in regard to offences against the Law, because of Section 11 of the Law, which says: 

"In determining the punishment of a person convicted of an offence under this Law, the court may take into account, as grounds for mitigating the punishment, the following circumstances:

 "(a) that the person committed the offence under conditions which, but for Section 8, would have exempted him from criminal responsibility or constituted a reason for pardoning the offence, and that he did his best to reduce the gravity of the consequences of the offence; 

"(b).....

"However, in the case of an offence under Section 1, the court shall not impose on the offender a lighter punishment than imprisonment for a term of ten years."

 In this respect our Law follows Article 8 of the London Charter under which the International Military Tribunal at Nuremberg was set up, and Article II4(b) of Law No. 10 of the Allied Control Council for Germany, under which courts were set up to try subsequent cases against war criminals.  They also refuse to accept a plea of "superior orders" as exempting from responsibility, but permit the court to consider the existence of such an order as grounds for mitigation of the penalty.

 219. Although the provisions of Section 11 of the Law concern only the last stage of the proceedings - the stage of the sentence - it is desirable that already now we find the facts in that regard, since they flow from the same evidence which was adduced on the Accused's criminal responsibility.

 We shall, therefore, ask ourselves whether the Accused committed the offences in circumstances which might exempt him from responsibility, had Section 19(b) of the Criminal Code Ordinance applied here.  This necessitates the consideration of the question whether the orders upon which the Accused acted were "manifestly unlawful."

This concept in Section 19(b) is explained by the District Military Court for the Central District in the matter of the Chief Military Prosecutor v. Melinki and others (13 Pesakim Mehoziim, p. 90) in the following terms: 

"The distinguishing mark of a `manifestly unlawful order' should fly like a black flag above the given order, as a warning reading "Prohibited!".  Not mere formal illegality, hidden or half-hidden, not the kind of illegality discernible only to the eyes of legal experts, but a flagrant and manifest breach of the law, certain and necessary illegality appearing on the face of the order itself; the clearly criminal character of the order or of the acts ordered, an illegality clearly visible and repulsive to the heart, provided the eye is not blind and the heart is not stony and corrupt - that is the extent of `manifest illegality' required to release a soldier from the duty of obedience upon him and make him criminally responsible for his acts."

 The Military Court of Appeal adopted these words in its judgment in the appeal in the same case (Pesakim Elyonim, vol. 44, p. 362), and added that our legislator's solution in Section 19(b) of the problem of conflict between law and obedience is, as it were, a golden mean between giving complete preference to one of those factors over the other, because 

"It recognizes the impossibility of reconciling these two values in full through the medium of pure formal law, and therefore relinquishes the attempt to solve the question solely by such means, and exceeds the pure legal categories, calling upon the feeling of legality which lies deep within every human conscience, also of those who are not conversant with books of law..." (supra, p. 410)

 And the Military Court of Appeal continues (supra, p. 411):

 "This is our law in this regard, and we, as a court of law, are not to question its validity.  But we believe that this solution, arrived at through the inspiration  of the best jurists within the sphere of influence of the English Common Law, is the best obtainable, and is best suited to the demands of a state like ours, based upon the rule of law." 

 220. Here we shall add that, in civilized countries the rejection of the defence of `superior orders' as exempting completely from criminal responsibility, has now become general.  This was also acknowledged by the General Assembly of the United Nations, being one of the principles of the London Charter and of the judgment in the case against the Major War Criminals (Resolution of the Plenary Session, No. 55, dated 11.12.46).  Perhaps it is not a vain hope that the more this conviction becomes rooted in the minds of men, the more will they refrain from following criminal leaders, and the rule of law and order in the relations between nations will be strengthened accordingly.

 It is to be pointed out here that even the jurists of the Third Reich did not dare to put on paper that obedience to orders is above all.  They did not repeal Section 47(2) of the German Military Criminal Code, which states that whoever commits an offence against the Criminal Law, through obedience to a superior's order, is punishable as an accomplice to a criminal act, if he knew that the order concerned an act which is a crime or an offence according to the general Military Law.  This provision was applicable also to SS men, according to the laws of jurisdiction over them (see exhibit T/1402/a, pp. 15, 21-22).

 221. Of course, the Accused well knew that the order for the physical extermination of the Jews was manifestly illegal, and that by carrying out this order he was committing criminal acts on an enormous scale.  To arrive at this finding, we do not have to rely on the Accused, because according to Section 19(b) the question as to whether an order is manifestly illegal is a question of law, left to be decided by the court according to objective criteria.  In any case, we shall also quote his evidence in the matter, which he gave after much evasion, and as though it needed a great inner effort on his part to realize such a simple truth: 

"Your Honour, President of the Court, since you call upon me to tell and give a clear answer, I must declare that I see in this murder, in the extermination of Jews, one of the gravest crimes in the history of mankind."

 And in answer to Judge Halevi:

 "...I already at that time realized that this solution by the use of force was something illegal, something terrible, but to my regret, I was obliged to deal with it in matters of transportation, because of my oath of loyalty, from which I was not released." (Session 95, Vol. IV, pp. xxxx35-36)

 Not only the order for physical extermination was manifestly illegal, but also all the other orders for the persecution of Jews because of their being Jews, even though they were styled in the formal language of legislation and subsidiary legislation, because these were only a cloak for arbitrary discrimination, contrary to the basic principles of law and justice.  As was stated by the court at Nuremberg which tried the Nazi jurists (Justice Case) (Green Series, vol. 3, p. 1063):

 "...but it is alleged that they participated in carrying out a governmental plan and program for the persecution and extermination of Jews and Poles, a plan which transcended territorial boundaries as well as the bounds of human decency.  Some of the defendants took part in the enactment of laws and decrees, the purpose of which was the extermination of Poles and Jews in Germany and throughout Europe.

"The overt acts of the several defendants must be seen and understood as deliberate contributions towards the effectuation of the policy of the Party and state.  The discriminatory laws themselves formed the subject matter of war crimes and crimes against humanity with which the defendants are charged."

This was not a single crime, but a whole series of crimes committed over the years.  The Accused had more than enough time to consider his actions and to desist from them.  But he did not stop; as time went on, he even increased his activity.     

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