The third point to be considered was Eichmann's liability for what went on in the extermination camps, in which, according to the prosecution, he had enjoyed great authority. It spoke for the high degree of independence and fairness of the judges that they threw out all the accumulated testimony of the witnesses on these matters. Their argument here was foolproof and showed their true understanding of the whole situation. They started by explaining that there had existed two categories of Jews in the camps, the so-called “transport Jews” (Transportjuden), who made up the bulk of the population and who had never committed an offense, even in the eyes of the Nazis, and the Jews “in protective custody” (Schutzhaftjuden), who had been sent to German concentration camps for some transgression and who, under the totalitarian principle of directing the full terror of the regime against the “innocents,” were considerably better off than the others, even when they were shipped to the East in order to make the concentration camps in the Reich judenrein. (In the words of Mrs. Raja Kagan, an excellent witness on Auschwitz, it was “the great paradox of Auschwitz. Those caught committing a criminal offense were treated better than the others.” They were not subject to the selection and, as a rule, they survived.) Eichmann had nothing to do with Schutzhaftjuden; but Transportjuden, his speciality, were, by definition, condemned to death, except for the twenty-five per cent of especially strong individuals, who might be selected for labor in some camps. In the version presented by the judgment, however, that question was no longer at issue. Eichmann knew, of course, that the overwhelming majority of his victims were condemned to death; but since the selection for labor was made by the S.S. physicians on the spot, and since the lists of deportees were usually made up by the Jewish Councils in the home countries or by the Order Police, but never by Eichmann or his men, the truth was that he had no authority to say who would die and who would live; he could not even know. The question was whether Eichmann had lied when he said: “I never killed a Jew or, for that matter, I never killed a non-Jew…. I never gave an order to kill a Jew nor an order to kill a non-Jew.” The prosecution, unable to understand a mass murderer who had never killed (and who in this particular instance probably did not even have the guts to kill), was constantly trying to prove individual murder.
This brings us to the fourth, and last, question concerning Eichmann's general authority in the Eastern territories—the question of his responsibility for living conditions in the ghettos, for the unspeakable misery endured in them, and for their final liquidation, which had been the subject of testimony by most witnesses. Again, Eichmann had been fully informed, but none of this had anything to do with his job. The prosecution made a laborious effort to prove that it had, on the ground that Eichmann had freely admitted that every once in a while he had to decide, according to ever-changing directives on this matter, what to do with the Jews of foreign nationality who were trapped in Poland. This, he said, was a question of “national importance,” involving the Foreign Office, and was “beyond the horizon” of the local authorities. With respect to such Jews, there existed two different trends in all German offices, the “radical” trend, which would have ignored all distinctions—a Jew was a Jew, period—and the “moderate” trend, which thought it better to put these Jews “on ice” for exchange purposes. (The notion of exchange Jews seems to have been Himmler's idea. After America's entry into the war, he wrote to Müller, in December, 1942, that “all Jews with influential relatives in the United States should be put into a special camp… and stay alive,” adding, “Such Jews are for us precious hostages. I have a figure of ten thousand in mind.”) Needless to say, Eichmann belonged to the “radicals,” he was against making exceptions, for administrative as well as “idealistic” reasons. But when in April, 1942, he wrote to the Foreign Office that “in the future foreign nationals would be included in the measures taken by the Security Police within the Warsaw Ghetto,” where Jews with foreign passports had previously been carefully weeded out, he was hardly acting as “a decision-maker on behalf of the R.S.H.A.” in the East, and he certainly did not possess “executive powers” there. Still less could such powers or authority be derived from his having been used occasionally by Heydrich or Himmler to transmit certain orders to local commanders.
In a sense, the truth of the matter was even worse than the court in Jerusalem assumed. Heydrich, the judgment argued, had been given central authority over the implementation of the Final Solution, without any territorial limitations, hence Eichmann, his chief deputy in this field, was everywhere equally responsible. This was quite true for the framework of the Final Solution, but although Heydrich, for purposes of coordination, had called a representative of Hans Frank's General Government, Undersecretary of State Dr. Josef Bühler, to the Wannsee Conference, the Final Solution did not really apply to the Eastern occupied territories, for the simple reason that the fate of the Jews there had never been in the balance. The massacre of Polish Jewry had been decided on by Hitler not in May or June, 1941, the date of the order for the Final Solution, but in September, 1939, as the judges knew from testimony given at Nuremberg by Erwin Lahousen of the German Counterintelligence: “As early as September, 1939, Hitler had decided the murder of Polish Jews.” (Hence, the Jewish star was introduced into the General Government immediately after the occupation of the territory, in November, 1939, while it was introduced into the German Reich only in 1941, at the time of the Final Solution.) The judges had before them also the minutes of two conferences at the beginning of the war, one of which Heydrich had called on September 21, 1939, as a meeting of “department heads and commanders of the mobile killing units” at which Eichmann, then still a mere Hauptsturmführer, had represented the Berlin Center for Jewish Emigration; the other took place on January 30, 1940, and dealt with “questions of evacuation and resettlement.” At both meetings, the fate of the entire native population in the occupied territories was discussed—that is, the “solution” of the Polish as well as the “Jewish question.”
Even at this early date, the “solution of the Polish problem” was well advanced: of the “political leadership,” it was reported, no more than three per cent was left; in order to “render this three per cent harmless,” they would have “to be sent into concentration camps.” The middle strata of the Polish intelligentsia were to be registered and arrested—“teachers, clergy, nobility, legionaries, returning officers, etc.”—while the “primitive Poles” were to be added to German manpower as “migratory laborers” and to be “evacuated” from their homes. “The goal is: The Pole has to become the eternal seasonal and migratory laborer, his permanent residence should be in the region of Cracow.” The Jews were to be gathered into urban centers and “assembled in ghettos where they can be easily controlled and conveniently evacuated later on.” Those Eastern territories that had been incorporated into the Reich—the so-called Warthegau, West Prussia, Danzig, the province of Poznan, and Upper Silesia—had to be immediately cleared of all Jews; together with 30,000 Gypsies they were sent in freight trains into the General Government. Himmler finally, in his capacity as “Reich Commissioner for the Strengthening of German Folkdom,” gave orders for the evacuation of large portions of the Polish population from these territories recently annexed to the Reich. The implementation of this “organized migration of peoples,” as the judgment called it, was assigned to Eichmann as chief of Subsection IV-D-4 in the R.S.H.A., whose task consisted in “emigration, evacuation.” (It is important to remember that this “negative demographic policy” was by no means improvised as a result of German victories in the East. It had been outlined, as early as November, 1937, in the secret speech addressed by Hitler to members of the German High Command—see the so-called Hössbach Protocol. Hitler had pointed out that he rejected all notions of conquering foreign nations, that what he demanded was an “empty space” [volkloser Raum] in the East for the settlement of Germans. His audience—Blomberg, Fritsch, and Räder, among others—knew quite well that no such “empty space” existed, he
nce they must have known that a German victory in the East would automatically result in the “evacuation” of the entire native population. The measures against Eastern Jews were not only the result of anti-Semitism, they were part and parcel of an all-embracing demographic policy, in the course of which, had the Germans won the war, the Poles would have suffered the same fate as the Jews— genocide. This is no mere conjecture: the Poles in Germany were already being forced to wear a distinguishing badge in which the “P” replaced the Jewish star, and this, as we have seen, was always the first measure to be taken by the police in instituting the process of destruction.)
An express letter, sent to the commanders of the mobile killing units after the September meeting, was among the documents submitted at the trial and was of special interest. It refers only to “the Jewish question in occupied territories” and distinguishes between the “final goal,” which must be kept secret, and “preliminary measures” for reaching it. Among the latter, the document mentions expressly the concentration of Jews in the vicinity of railroad tracks. It is characteristic that the phrase “Final Solution of the Jewish question” does not occur; the “final goal” probably was the destruction of Polish Jews, clearly nothing new to those present at the meeting; what was new was only that those Jews who lived in newly annexed provinces of the Reich should be evacuated to Poland, for this was indeed a first step toward making Germany judenrein, hence toward the Final Solution.
As far as Eichmann was concerned the documents clearly showed that even at this stage he had next to nothing to do with what happened in the East. Here, too, his role was that of an expert for “transportation” and “emigration”; in the East, no “Jewish expert” was needed, no special “directives” were required, and there existed no privileged categories. Even the members of the Jewish Councils were invariably exterminated when the ghettos were finally liquidated. There were no exceptions, for the fate accorded the slave laborers was only a different, slower kind of death. Hence the Jewish bureaucracy, whose role in these administrative massacres was felt to be so essential that the institution of “Jewish Councils of Elders” was immediately established, played no part in the seizure and the concentration of the Jews. The whole episode signals the end of the initial wild mass shootings in the rear of the armies. It seems that the Army commanders had protested against the massacres of civilians, and that Heydrich had come to an agreement with the German High Command establishing the principle of a complete “cleanup once and for all” of Jews, the Polish intelligentsia, the Catholic clergy, and the nobility, but determining that, because of the magnitude of an operation in which two million Jews would have to be “cleaned up,” the Jews should first be concentrated in ghettos.
If the judges had cleared Eichmann completely on these counts connected with the hair-raising stories told over and over by witnesses at the trial, they would not have arrived at a different judgment of guilt, and Eichmann would not have escaped capital punishment. The result would have been the same. But they would have destroyed utterly, and without compromise, the case as the prosecution presented it.
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XIV: Evidence and Witnesses
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During the last weeks of the war, the S.S. bureaucracy was occupied chiefly with forging identity papers and with destroying the paper mountains that testified to six years of systematic murder. Eichmann's department, more successful than others, had burned its files, which, of course, did not achieve much, since all its correspondence had been addressed to other State and Party offices, whose files fell into the hands of the Allies. There were more than enough documents left to tell the story of the Final Solution, most of them known already from the Nuremberg Trials and the successor trials. The story was confirmed by sworn and unsworn statements, usually given by witnesses and defendants in previous trials and frequently by persons who were no longer alive. (All this, as well as a certain amount of hearsay testimony, was admitted as evidence according to Section 15 of the law under which Eichmann was tried, which stipulates that the court “may deviate from the rules of evidence” provided it “places on record the reasons which prompted” such deviation.) The documentary evidence was supplemented by testimony taken abroad, in German, Austrian, and Italian courts, from sixteen witnesses who could not come to Jerusalem, because the Attorney General had announced that he “intended to put them on trial for crimes against the Jewish people.” Although during the first session he had declared, “And if the defense has people who are ready to come and be witnesses, I shall not block the way. I shall not put any obstacles,” he later refused to grant such people immunity. (Such immunity was entirely dependent upon the good will of the government; prosecution under the Nazis and Nazi Collaborators [Punishment] Law is not mandatory.) Since it was highly unlikely that any of the sixteen gentlemen would have come to Israel under any circumstances—seven of them were in prison—this was a technical point, but it was of considerable importance. It served to refute Israel's claim that an Israeli court was, at least technically, the “most suitable for a trial against the implementers of the Final Solution,” because documents and witnesses were “more abundant than in any other country”; and the claim with respect to documents was doubtful in any event, since the Israeli archive Yad Vashem was founded at a comparatively late date and is in no way superior to other archives. It quickly turned out that Israel was the only country in the world where defense witnesses could not be heard, and where certain witnesses for the prosecution, those who had given affidavits in previous trials, could not be cross-examined by the defense. And this was all the more serious as the accused and his lawyer were indeed not “in a position to obtain their own defense documents.” (Dr. Servatius had submitted a hundred and ten documents, as against fifteen hundred submitted by the prosecution, but of the former only about a dozen originated with the defense, and they consisted mostly of excerpts from books by Poliakov or Reitlinger; all the rest, with the exception of the seventeen charts drawn by Eichmann, had been picked out of the wealth of material gathered by the prosecution and the Israeli police. Obviously, the defense had received the crumbs from the rich man's table.) In fact, it had neither “the means nor the time” to conduct the affair properly, it did not have at its disposal “the archives of the world and the instruments of government.” The same reproach had been leveled against the Nuremberg Trials, where the inequality of status between prosecution and defense was even more glaring. The chief handicap of the defense, at Nuremberg as at Jerusalem, was that it lacked the staff of trained research assistants needed to go through the mass of documents and find whatever might be useful in the case. Even today, eighteen years after the war, our knowledge of the immense archival material of the Nazi regime rests to a large extent on the selection made for purposes of prosecution.
No one could have been more aware of this decisive disadvantage for the defense than Dr. Servatius, who was one of the defense counsels at Nuremberg. Which, obviously, makes the question of why he offered his services to begin with even more intriguing. His answer to this question was that for him this was “a mere business matter” and that he wished “to make money,” but he must have known, from his Nuremberg experience, that the sum paid him by the Israeli government— thousand dollars, as he himself had stipulated—was ridiculously inadequate, even though Eichmann's family in Linz had given him another fifteen thousand marks. He began complaining about being underpaid almost the first day of the trial, and soon thereafter he openly voiced the hope that he would be able to sell whatever “memoirs” Eichmann would write in prison “for future generations.” Leaving aside the question of whether such a business deal would have been proper, his hopes were disappointed because the Israeli government confiscated all papers written by Eichmann while in jail. (They have now been de-posited in the National Archives.) Eichmann had written a “book” in the time between the adjournment of the court in August and the pronouncement of judgment in December, and the defense offe
red it as “new factual evidence” in the revision proceedings before the Court of Appeal—which of course the newly written book was not.