The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of Adolf Eichmann
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.

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)

"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.

Attorney General: That is correct, Your Honour. I shall come immediately to what the Court said:

"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?

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:

"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.

And on page 16 in the middle paragraph, it says:

"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.

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:

"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.

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:

"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.

Frank adds, at the same meeting:

"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?

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:

"...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?

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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