The Nizkor Project: Remembering the Holocaust (Shoah)

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Last-Modified: 1999/06/14

Attorney General: The commentary including that paragraph, I
think we did submit.

Presiding Judge: You submitted the directives to the men of
the SS, which refer to this point.

Attorney General: But it does include this paragraph.

Presiding Judge: However, not literally.  It contains the
substance of it, I think.

Attorney General: The Court will find that paragraph in
Volume 11 of Wright, page 47, the paragraph verbatim.

This, then, is the law which applies - under German military
law, too - to Adolf Eichmann, if we accept his maximalist
argument that he was a military man, subject to military
authority, and not an official of the Gestapo.  If, in the
performance of an order referring to service matters,
criminal law is violated - the commanding officer alone is
responsible, but nonetheless, the subordinate complying with
the order is liable to punishment as an accomplice to the
offence: (a) if he went beyond the order which he received;
(b) if he knew that the order given by the commanding
officer pertained to an action which had as its aim to
commit a crime, or a general or military offence.

If we stop for a moment, could there be the slightest doubt
that Eichmann knew that he was engaged in carrying out one
great crime over a number of years?  I asked him in the
cross-examination: Did you ever ask to be shown a law that
it was permissible to kill Jews, and if we assume that the
Fuehrer had unlimited powers under the enabling law to issue
laws, did you ever see a law of the Fuehrer that "the Jews
are doomed to die"?  Not that this would have made any
difference.  Even if he had obeyed such an order or such a
law, this would not have helped him at all, but this he did
not see either.  He says: "I received orders, and we did not
worry too much about legal cover.  This is something with
which my superiors had to concern themselves."  That was his
reply in examination.

Presiding Judge: I saw in a document which the Accused
submitted that he mentions that in 1942 the whole regime of
normal laws in Germany was abolished by the Reichstag, or by
Hitler.  Do we have anything about this in the evidence?

Attorney General: Your Honour, we submitted the letter of
the German Minister of Justice...

Presiding Judge: This is not what I am referring to.  If
anything like this exists at all, it must be something
general.  I found nothing about this in the documents.

Attorney General: We did not find anything, Sir.

Presiding Judge: This, actually, is a question directed more
to the Defence Counsel.

Attorney General: We did not find this.

Presiding Judge: So as to make clear what I am referring to,
this is in one of the diagrams of the Accused, one of the
first ones which he submitted.

Attorney General: Yes, I remember.  We shall try to check
this matter, and if we come up with something by tomorrow
morning, we shall submit it to the Court.

Not that this would have changed much, because they
themselves knew that murdering defenceless women and
children was murder.  And we have heard from the Nazi
Propaganda Minister, Goebbels, in a publication in the
Voelkischer Beobachter, that newspaper about which Eichmann
says that he used to swallow it up in one piece, his outcry
about the bombing of German cities, where he says:
"Henceforth, the pilots bombing German cities will no longer
be considered prisoners of war, and the German army will not
protect them against the people's fury and will deliver them
up to the people's fury.  But this, of course, is with
reference to harm coming to their children and their women.
The people's fury was not designed to protect Jewish women,
children and old people.

For the sake of comparison, let me quote the verdict of the
Polish military tribunal that judged Greiser, who was
Gauleiter of the Warthegau.  This is on pages 36 and 37 of
the booklet:

     "Even if we were to admit the explanations offered by
     the accused as the basis for the verdict, even then his
     defence would not have lessened, to any degree
     whatsoever, his responsibility for the crimes
     perpetrated... According to the theory and modern
     practice of comparative criminal law, a subordinate is
     not obliged to carry out any order of his commander.
     Under military law, even that of Germany, obedience is
     the basic trait of the soldier, but even under this
     stern military law, one cannot interpret discipline and
     obedience as blind obedience to any order, but only to
     orders that conform with the law, and not those that
     require the soldier to commit crimes.  A criminal order
     of this kind from his superior will constitute a
     definite crime, for the commission of which the person
     carrying it out will be equally responsible with the
     one giving the orders... Under the modern approach,
     this is not a question of creating a new type of
     collective responsibility with the guilt of someone
     else, and it is not a deviation from the basic
     objective approach of personal criminal responsibility
     within the context of individual guilt, but it is a
     question of taking into account the fact which is not
     in dispute, that many criminal offences are carried out
     by groups, smaller or larger groups, or accomplices,
     with different degrees of complicity."

This, then, is the second reason why the claim of superior
orders will not protect the defendant.  But there is also a
third reason.

We have already found that he went far beyond what he was
ordered to do.  He was the living spirit in the whole
matter, because he was the driving force of the entire
apparatus, the puller-of-strings.  It was not a case of a
man carrying out orders because he was compelled to do so,
who was doing only what was required of him; he fulfilled
the orders to the last iota, with harshness, chasing after
every single Jew.

You have hundreds of documents showing that he turned down
any relaxation, any permission to emigrate, and any
opportunity for any kind of easing.  What do you have where
he ever responded, ever helped, ever allowed a relaxation?
That was the spirit which pervaded the entire enterprise.  I
have already said: He did not give the supreme order; he was
not powerful enough for that; but once matters reached the
stage of implementation - there he was the ruler, there his
hand was in all phases of execution, and he pushed forward
and spurred on and performed wholeheartedly and willingly,
within the framework of these orders, and if at all possible
- above and beyond these orders.

Now let us see how these things look in the perspective of
this trial.  I have already said that the order to liquidate
the Jews has never received the shape of any law.  Not that
it would have made any difference, and not that any such law
would have detracted in the slightest from Eichmann's
responsibility, even had it existed.  But what was the
formal basis for this gigantic operation of directives,
instructions, regulations, ordinances, and all the other
thousands of documents?

Eichmann told Wisliceny, according to the latter, that he
had a written order signed by Himmler, stating that the
Fuehrer had ordered the liquidation of the Jews.  Eichmann
denies this categorically, and he, on his part, does not try
to point to any written document whatsoever.  But even if we
assume, in his favour, that Wisliceny's version is true,
even then we have no proof for any legal or formal basis
whatsoever, so that even if Eichmann were to argue that the
reasonable German soldier was duty-bound to obey the law, he
did not have the formal framework, he did not have any law.
As against this, there remains the main and unequivocal
factor which brands the action as a crime.  The very murder,
the very manhunt, the very discrimination, the detentions,
the search for these people, their seizure from every place
where they were found, and all of that under camouflage,
disguise, befogging, deception and deceit, which by
themselves point to the fact that he knew that what was
being done needed to be hidden; and what needs to be hidden,
if not a criminal act of horror?  The worst things had to be
hidden even from some of the authorities of the Reich
itself, as he admits.  Not that they were better than he
was, not that they were not his accomplices, but even to
them he did not dare disclose everything.  He was engaged in
work where anybody engaged in it could not but know that the
order to annihilate Jews was a crime by any criterion in the
world.  The Accused and his partners in the SS, in that
great criminal conspiracy, did not shrink even from acts
which were war crimes, and suffice it for me to point here
to the torture and murder of Jewish prisoners of war - as we
have heard from the witnesses Levinson and Buchman.  The
orders came from Berlin to kill them all; this is what the
witnesses testified, but a few were left for forced labour.
All of this, as the witnesses testified, was done by the SS
men, in accordance with the evidence that we have submitted.
And General Koller - according to the evidence of Justice
Mussmano - when he went to Eichmann to discuss the fate of
the Jewish pilots, what did he hear?  They must be
exterminated.  Can a reasonable person argue that the mass
destruction of Jews by all kinds of strange forms of death
can further the German war effort?  Eichmann knew that there
was no connection between the war and the mass murder of
Jews, but he will not admit this.  Instead, we have the
excuse to justify the beginning of the job - the alleged
declaration of war by the late Dr. Weizmann on Nazi Germany,
at the 21st Zionist Congress.  What did the President of the
World Zionist Organization say when he took leave of the
representatives of his people on the eve of the World War?
I read now from the stenographic transcript of the Zionist
Congress, page 222:
Presiding Judge: This has not been submitted, you will
please submit an exact reference.  My colleague, Judge
Halevi, quoted from the president's book.

Attorney General: His Honour quoted from the diary.  The
diary speaks about what Dr. Weizmann had written down in his
diary, as he had said it.  Here we bring his remarks from
the shorthand transcript, and I prefer bringing to the
attention of the Court this shorthand transcript.

Judge Halevi:  Yes, I would also prefer that, but at the
stage of summing up this is, perhaps, formally speaking,
difficult.  If Dr. Servatius should object?

Attorney General: I am prepared to yield. In any event, I
can only say this.  Would that the Germans...

Presiding Judge: Dr. Servatius, have you anything to say?
True, as my colleague has pointed out, it would be quite
unusual to receive new material at this stage, but after it
has been mentioned by my colleague, of course it would be
desirable to go right to the source.

Dr. Servatius:  I see no reason to object, since the matter
has been submitted, and there is room for formal

Presiding Judge: So, you may quote this from the
stenographic record.

Attorney General: "That which the Western democracies are
fighting for is the minimum required for the life of the
Jews.  Their concerns are our concerns, and their war is our

This he said before the outbreak of the Second World War.
But the Nazis, we know, did not regard the Jews as
belligerents; would that they had regarded them as
belligerents, would that they had detained them in prisoner-
of-war camps.  Had they done so, millions of Jews might
perhaps have survived.  But they did the opposite; they
wanted to liquidate the Jews, so long as the war went on,
because they knew that this was an opportunity which must
not be lost.  Eichmann declared so openly to Wisliceny.  The
German Foreign Ministry expressed the same idea, namely that
the War gives Germany the opportunity and the obligation to
solve the problem of the Jews in Europe.  Wisliceny further

     "The longer the War went on, and it became ever more
     clear that there would not be a German victory, the
     more Eichmann continued to press for the completion of
     the deportations and extermination without any limits."

It is, therefore, clear why, after he was taken prisoner
with his men, he was asked by Burger - his trusty, as he
calls him - to get away from his comrades, as he himself
admits, because clearly, he, Eichmann, was considered one of
the main war criminals.  As he had told Grell, back in
Budapest - six million people were on his conscience; and on
this occasion I would like to correct what seems to be a
slip of the tongue that I made yesterday: When he spoke to
Grell, he did not say six million Jews on his conscience, he
said six million persons.  But who rested on Eichmann's
conscience, and which six million people could he mean - of
that there can be no doubt whatsoever.  Why, in his police
interrogation he also said: "Six million Jews."  He did not
jump gladly into the pit, as he had promised Wisliceny - and
on that I shall have some more to say - but instead tried
with all his might to escape justice, because he knew the
enormity of his crimes, he knew that he had no excuse or
defence for his actions, and therefore he escaped and hid.

While we are dealing with this matter of the illegal order,
the matter of the conspiracy also assumes a different form,
since the Defence Counsel could raise this question: What,
in fact, is your argument, that some private in the
Einsatzgruppen (Operations Units) in the expanses of Russia
is a partner in a conspiracy with Heydrich, Himmler, Hitler?
Can it really be argued that there is such a conspiracy
which encompasses all shapes and ranks?  And our reply is:
Yes.  Inasfar as we are talking about the central people in
charge of the operation, those engaged in an illegal task,
the conspiracy works upwards and downwards, toward those who
are above them, and toward those who are subordinate to
them.  And the criminal conspiracy is entered into in the
nerve center of the Gestapo, both upwards - to Heydrich and
to Himmler -  and downwards, to the very last man.  So long
as there was full knowledge of what was being done and that
these men remained within the criminal framework and this
nerve center, after it became known what was to occur.  This
we heard from Eichmann himself: "In August or September
1941, Heydrich informed me that the Fuehrer had ordered the
physical extermination of the Jews."  From that moment on,
he was caught in the net of the criminal conspiracy, toward
Heydrich, toward his subordinates, and toward all those who
were engaged in the thousands of small plots and the
thousands of different conspiracies, which existed in every
ghetto and in every community and in every country, big and
small, for the performance of the overall task.

And finally, one further argument that may be raised, and
that is the argument of "Act of State."  The doctrine of the
Act of State has its origin in a theory taken from Public
International Law, which took form in different juridical

Presiding Judge: Are you still going to speak about the
possibility of getting out of this framework - the Gestapo?

Attorney General: I shall talk about this again when I come
to analyse the sections of the law, one by one, when I come
back and talk about the sections relating to this.  We have
a section charging him with belonging to the Gestapo, and
there is something of this also in the IMT, and I shall come
back to this when I analyse the indictment in detail.

The "Act of State" theory says: Public International Law
deals with relations between states; therefore, if the
individual acting on behalf of one state commits an act
which injures another state, the state which is hurt is
entitled to sue the state that committed the injury.  But
the individual who acted only as an instrument, as an organ
of the state that caused the injury, shall not bear
responsibility for his act.  However, even in the opinion of
those advocating this doctrine, it does not apply to acts
which were committed by the individual at the command of the
state when this command is outside the law, when it is in
excess of the authority of the state.

Acts of State in time of war, which constitute a violation
of Public International Law, are considered to be in excess
of the authority of the state which does the harm, and
therefore the transgressor will bear criminal liability.

For this reason, this particular defence was rejected in the
trial of the major war criminals and in other trials of war
criminals, and this is how it was formulated in the "Justice
Case," which the Court will find on page 41 of our booklet.
Because it is already late, I shall not quote from it, and I
shall be content with referring to it.

In the trial of Gluecks, which is also mentioned on page 41
of our booklet, it says, in the passage quoted there, that
criminal, individual responsibility for international crimes
is nothing new; "therefore, the accused cannot argue that he
is not punishable, since his acts are Acts of State."

Also, the fact that this defence was not specifically
abrogated by the Nazis and Nazi Collaborators (Punishment)
Law 5710-1950 makes no difference.  First, our law does not
mention at all such a defence among the sections of
justification or defence set out in the criminal law, and
which in this context constitute the overall scheme for
exemption from criminal responsibility.  Therefore, there
was no room for mentioning this in the Nazis and Nazi
Collaborators (Punishment) Law, because the argument is that
this does not exist in our country, in the ordinary criminal
law.  Secondly, common law, too, which could in certain
cases serve as a complement to provisions of our statutory
law, does not recognize this defence in the sphere of
criminal law.  American justice does not accept this defence
either in a way that could detract from the criminal
responsibility of offenders who act as representatives of a
foreign state.  This we learn from an opinion of the United
States Supreme Court (Ex parte Quirin) quoted in the
judgment of the International Military Tribunal at
Nuremberg, which also appears on page 41 of our booklet.
Presiding Judge: This is not the International Military
Tribunal.  It is, as you said one of the subsequent trials,
the "Justice Case."

Attorney General: The "Justice Case" quotes the IMT, which
quotes the Ex parte Quirin.

That concludes my argument concerning "Acts of State."

Presiding Judge: The next Session - tomorrow at 8.30 in the

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