The Trial of Adolf Eichmann
The problem of partnership in crime also came up, of course,
in the trials of the war criminals. Let me say at once
that, from a legal point of view, there is a difference
between an army officer whose being placed in a military
framework in itself is not a crime, and the position of the
head of the Jewish Section in the Gestapo, all of whose
activities therein, from the beginning to the end, concern
carrying out a series of acts, each one of which is a crime,
when this Section was set up for the very purpose of
destroying the Jewish enemy, and this is what it dealt with
day after day.
Nevertheless, army officers, too, were held liable in law
and partners in crime, even though it was only in
consequence of the fact that they clothed the illegal
commands, which reached them from above, in the form of
orders, instructions and directives. Thus, for example, it
was held in a judgment dealing with the German High Command,
on page 14 of our booklet:* {*The German High Command Trial
(U.S. versus van Leeb) (11 Green Series 513)
Attorney General: That is correct, Your Honour. I shall
come immediately to what the Court said:
Attorney General: That was said by Wright. Incidentally, I
see, Your Honour, that this was the High Command Trial.
Presiding Judge: We also have this in the Green Series.
Attorney General: The Court goes on to say:
And on page 16 in the middle paragraph, it says:
The extract on page 18 deals with a relatively unimportant
man, such as the secretary of Pohl - Leo Volk. And this is
what the court says in the last paragraph:
Occupied Poland, as will be recalled, was destined from the
beginning to be the region in which Jewry was prepared for
the "Final Solution." The criminal conspiracy passed on to
a search for a practical solution, a comprehensive solution.
Eichmann also endeavoured to present the Nisko Plan to the
Court, as his contribution towards a constructive solution.
What happened at Nisko - this we heard from the witnesses
Burger and Kratky.
Dr. Kratky recalled the deportees from Stettin who arrived
in the Nisko district. Here, too, there was brutality
accompanied by deceit, an attempt to create a fait accompli
by throwing thousands of Jews into the Generalgouvernement,
allegedly in order to create a Jewish self-governing area.
A part of the Jewish population was forcibly expelled to the
Soviet zone, and the remainder would have faced death from
starvation and thirst, had it not been for the aid given by
Jewish charitable institutions. Those who expelled the Jews
did so deliberately in order to oppress their victims, and
to bring about the reduction in their numbers. They were
told not to drink water from the wells and springs, and a
chain of SS men prevented them from moving. Even to this
place, Eichmann brought several Jewish functionaries, in
order to show them his handiwork and to persuade them that
it would be worthwhile for the Jews to move there of their
own free will.
On this point, Wisliceny said that Eichmann deported Jews to
Nisko speedily on the supposition that some political
solution concerning Poland would be forthcoming. At all
events, the Accused carried out an operation here, for which
apparently he did not have authorization - not even from the
appropriate Reich authorities. He transferred the deportees
from the areas in which his emigration centres functioned,
to the region controlled by his friend, Globocnik. And he
alleged in Court that Frank, the Governor of Poland, became
so enraged with him that he wanted to arrest him for this
unauthorized operation. And those who subsequently returned
from Nisko, were ordered to make a false report to the
police, to the effect that they were coming back from
vocational "training." He ordered them to present such a
report, and he was not able to explain, when questioned, why
it was necessary to conceal the deportation to Nisko even
from the Vienna police.
When one pieces the details together, the following picture
emerges: Eichmann was carrying out the decisions of the
meeting of 21 September 1939 by a shortened procedure, and
in particular by uprooting all the Jews from the areas of
the Reich, from Austria and the Protectorate. The formal
problems did not worry him. And the authorities of the
Generalgouvernement, under whose sphere of influence there
were already, anyhow, millions of Jews, would be confronted
with a fait accompli before they would notice, in the midst
of the confusion that prevailed in the first months of the
occupation, what was happening there.
However, the plan did not succeed. Frank who had been told
nothing about "the new Jewish homeland" (to use Eichmann's
expression) demanded that the Jews be returned to their
place of origin, and Eichmann was ordered to return those
who still survived.
Here, the Accused brazenly claimed how he had "cooked up" -
to use his words - the Nisko Plan at the request of the
Jewish functionaries. And when the Court confronted him
with the Loewenherz Report, according to which
representatives of the community in Vienna dared to request
him to refrain from further deportations of Jews to Nisko -
for the matter had given rise to real panic within the
Jewish population - he replied that this was already towards
the end of the operation.
Meanwhile, a beginning was made in Poland with the
preparation of the Jews for their annihilation, in
accordance with Heydrich's programme. We learned about the
stages of the operation, in which Eichmann acted first as
Head of Section IVB4, and thereafter as head of the Jewish
Section, from a number of sources - from the oral evidence,
from Frank's diary, and from a number of documents, the few
that were preserved.
Wisliceny testifies that until 1941 Eichmann dealt with the
problems of the Jews in Poland, only to the extent that he
issued directives for ghettoization, for the setting up of
Councils of Elders, and so on (T/85, pp. 60-66).
From Frank's diary it is clear that the Gestapo was in
charge within the Generalgouvernement, and treated the Jews
as it pleased. Only in May 1943, after the millions of
Polish Jews had already been annihilated for the most part,
and the last remnants awaited their turn for extermination
or had hidden and fled, did Frank succeed in obtaining
Hitler's decree that the police in the Generalgouvernement
was to be subordinated first and foremost to the Governor
General. On this point the following words of Frank, taken
from his address to a group of his followers, were recorded:
Frank adds, at the same meeting:
Attorney General: Yes, Your Honour. At the end of June
1943, Katzmann, the annihilator of the Jews of Lvov and
south-eastern Europe, was able to report that his operation
had been concluded. At the beginning of 1943, as I have
said, about twenty thousand Jews in the labour camps in the
vicinity were massacred at Majdanek, and from that date all
the extermination camps, except for Auschwitz, were closed
down. The Gestapo had concluded its campaign of mass
murder. Frank received full governmental control in Poland,
but it was a Poland without Jews. And what was said at
meetings of his government as long as the Gestapo prevailed
in his territory - this will be apparent from several
passages. Here are passages from Frank's diary. At a
meeting on 8 December 1939, it says:
Attorney General: Certainly. all of them, of course, will
be produced in their proper order, as I stated in chambers
this morning.
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Session 111
(Part 2 of 5)
In the Kafr Kassem case ** {**Judgments of District Courts,
Vol. 44, p. 262, 403} the Court assumed in favour of the
battalion commander that he had received from the divisional
commander an order to shoot anyone leaving his house after
curfew time. This is stated in paragraph 47 of the
judgment. And all that the battalion commander did
subsequently was to transmit the order. The Military Court
found in its judgment that the death of the victims was the
probable consequence of that order, and even if the
battalion commander did not have murderous intentions in
respect of most of the victims - he must be found guilty of
the murder of all of them, on the sole ground of having
transmitted the order. The Court will find these quotations
on page 10 of our booklet - paragraph 58 of the judgment of
Military Court of Appeal.
"Ideas and general directives must be translated into
properly prepared orders if they are to become
effective in a military organization. To prepare
orders is the function of staff officers. Staff
officers are an indispensable link in the chain of
their final execution. If the basic idea is criminal
under International Law, the staff officer who puts the
idea into the form of a military order, either himself
or through subordinates under him, or takes personal
action to see that it is properly distributed to these
units where it becomes effective, commits a criminal
act under International Law."
And, on the following page, dealing with Lehmann, in the
Hostages case, it says:
"Lehmann had no command authority towards the legal
departments of the three branches of the Wehrmacht. He
could not issue any orders to the troops.... It is not
claimed that he personally gave orders to shoot Russian
civilians on suspicion or that he physically
transported `Night and Fog' defendants into Germany and
isolated them from the outside world. But without the
general orders which Lehmann had drafted and issued,
not a single individual order could have been given....
At the very least..."
Presiding Judge: I note that these were the words of the
prosecution, Mr. Hausner.
"The Tribunal, in dealing with the alleged
responsibility of Lehmann, in effect adopted the
prosecution's theory of Lehmann's liability, while at
the same time accepting the analogy of his position and
that of a staff officer"...
Presiding Judge: Who said that?
"The record discloses conferences, telephone calls and
much correspondence all independent of Hitler. In this
way the details of the order were worked out. Many of
these details originated in the minds of various staff
officers and some in the mind of the defendant."
That is to say, an illegal clothing by Mueller, Heydrich,
Kaltenbrunner or others of a skeleton instruction which is
an order for murder or assisting murder, converts even the
person lending a hand to the clothing itself, to the
formulation itself, into an accessory to a crime, to murder.
"We find no provisions in this order where he
contributed to its inherent viciousness, but he was one
of those responsible for its final production in the
form in which this criminal order was transmitted to
the army and he was criminally responsible for a part
of the vicious product."
Of course, under circumstances in which a staff officer does
not perform any act in the furtherance of the execution of
the hostages, and in addition expresses in various ways and
patently his opposition to such a deed - he will not be
found guilty as a partner to the crime simply because he
knew that such a crime was being committed in the chain of
command with which he was associated. Accordingly, and for
this reason, the accused Foertsch was acquitted in the
judgment of the Hostages Trial. This appears on page 14 of
the booklet.
"The evidence fails to show the commission of an
unlawful act which was the result of any action,
affirmative or passive, on the part of this defendant.
His mere knowledge of the happening of unlawful acts
does not meet the requirements of criminal law. He
must be one who orders, abets or takes a consenting
part in the crime".
In the matter of the accused Warlimont, on page 17 of the
booklet, the court dealt with the actions of a staff officer
who participated in the framing of the orders. The orders
were to hand over the Allied pilots to the mob so that they
would be lynched. The court said:
"In the programme adopted by the leaders of the Third
Reich, they undertook to inspire the German population
to murder Allied fliers by lynch law or `mob justice.'
The evidence showed that the accused Warlimont was well
informed on the entire matter. He attended numerous
conferences and personally discussed the matter with
Kaltenbrunner, one of the active participants in the
whole procedure, who informed him that lynch justice
was to be the rule."
And accordingly, Warlimont, despite the fact that he was
only a staff officer, was found guilty of being an accessory
to the crime.
"Leo Volk may have been in himself a rather unimportant
figure, so far as the Nazi supreme hierarchy is
concerned, but the evidence establishes that he was an
essential, integral member of the organization which
accomplished crimes, atrocities, and inhumanities
unparalleled in the history of the human race. The
crime of the concentration camps of the Third Reich is
a crime the whole world knows. This judgment does not
suggest that Leo Volk actively participated in the
beatings and other ill-treatment practised on the
concentration camp inmates, but it does declare, as it
did in the original judgment, that he was a vital
figure in one branch of the WVHA* {*Wirtschafts-
Verwaltungshauptamt (Economic-Administrative Head
Office)} responsible for the concentration camps of
Germany and occupied countries."
Bearing these criteria and legal principles in mind, let us
examine the main testimonies of the direct aid given to the
crimes against the Jewish People and the crimes against
humanity.
"The leadership of the SS and the police from the very
beginning, openly and systematically impaired the
authority of the Generalgouvernement, in that it did
not want to recognize the views of the Governor
General, and consequently he was forced, to wage a
prolonged war in the Generalgouvernement, between the
authority of the state and that of the `state within
the state...' On 9 May 1943, he had a lengthy
discussion on the subject with the Fuehrer, and
thereafter a sensational development began... This
contest was settled in his favour... As a result of the
pressure of his arguments, Globocnik, the Commander of
the SS and the Police in Lublin, was to be removed from
his post and his position would be occupied by someone
more amenable."
But Globocnik still remained in that position until November
1943, and until the remnants of the Jews of the Lublin
district had been destroyed. The Jews no longer derived any
advantage from the conflict of authority between the
murderers. Nor did the civilian authorities have access to
the camps within the Generalgouvernement. This is clear
from the quotation from Frank's diary - from the minutes of
a meeting of his government:
"The discussion also concerned a number of questions
about the Majdanek camp, near Lublin. The State
Secretary, Dr. Buehler, states that the matter is not
known to the administration of the Generalgouvernement,
since it had never been able to see these camps,
because they had basically been established and were
being managed, exclusively and directly, by the Berlin
headquarters of the SS and the police, and all their
arrangements, administration, and everything that went
on inside them were the sole responsibility of the
central authorities in Berlin."
Your Honours, that was said at a meeting of the government
of which Krueger was a member, it was officially recorded,
and it faithfully reflects the situation.
"The administration of the Generalgouvernement and all
its bodies - amongst them those of the district of
Lublin - do not bear any responsibility for the events
concerning the camp, since this responsibility rests
exclusively with the former supreme commander of the SS
and the police, Krueger, or with the appropriate
authorities of the Reich."
Presiding Judge: Did Krueger have some kind of double
capacity - first of all as Senior SS Commander and,
secondly, also as State Secretary for Security Affairs?
"...SS Obergruppenfuehrer Krueger discusses the
questions arising out of the resettlement operation
(Umsiedlung)."
Presiding Judge: Will you provide us with all these passages
later on?