In August, 1944, as the Red Army drew near, a full-fledged revolt broke out in Slovakia, and the Germans occupied the country. By this time, Wisliceny was in Hungary, and he probably was no longer trusted anyway. The R.S.H.A. sent Alois Brunner to Bratislava to arrest and deport the remaining Jews. Brunner first arrested and deported the officials of the Relief and Rescue Committee, and then, this time with the help of German S.S. units, deported another twelve or fourteen thousand people. On April 4, 1945, when the Russians arrived in Bratislava, there were perhaps twenty thousand Jews left who had survived the catastrophe.
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XIII: The Killing Centers in the East
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When the Nazis spoke of the East, they meant a huge area that embraced Poland, the Baltic States, and occupied Russian territory. It was divided into four administrative units: the Warthegau, consisting of the Polish Western Regions annexed to the Reich, under Gauleiter Artur Greiser; the Ostland, including Lithuania, Latvia, and Estonia, and the rather indefinite area of White Russia, with Riga as the seat of the occupation authorities; the General Government of central Poland, under Hans Frank; and the Ukraine, under Alfred Rosenberg's Ministry for the Occupied Eastern Territories. These were the first countries on which testimony was presented in the case for the prosecution, and they were the last to be dealt with in the judgment.
No doubt both the prosecution and the judges had excellent reasons for their opposite decisions. The East was the central scene of Jewish suffering, the gruesome terminal of all deportations, the place from which there was hardly ever any escape and where the number of survivors rarely reached more than five per cent. The East, moreover, had been the center of the prewar Jewish population in Europe; more than three million Jews had lived in Poland, two hundred and sixty thousand in the Baltic states, and more than half of the estimated three million Russian Jews in White Russia, the Ukraine, and the Crimea. Since the prosecution was interested primarily in the suffering of the Jewish people and “the dimensions of the genocide” attempted upon it, it was logical to start here, and then see how much specific responsibility for this unmitigated hell could be blamed upon the accused. The trouble was that the evidence relating Eichmann to the East was and this was blamed on the fact that the Gestapo files, and particularly the files of Eichmann's section, had been destroyed by the Nazis. This scarcity of documentary evidence gave the prosecution a probably welcome pretext for calling an endless procession of witnesses to testify to events in the East, though this was hardly its only reason for doing so. The prosecution—as had been hinted during the trial but was fully described later (in the special Bulletin issued in April, 1962, by Yad Vashem, the Israeli archive on the Nazi period) —had been under considerable pressure from Israeli survivors, who constitute about twenty per cent of the present population of the country. They had flocked spontaneously to the trial authorities and also to Yad Vashem, which had been officially commissioned to prepare some of the documentary evidence, to offer themselves as witnesses. The worst cases of “strong imagination,” people who had “seen Eichmann at various places where he had never been, were weeded out, but fifty-six “sufferings-of-the-Jewish-people witnesses,” as the trial authorities called them, were finally put on the stand, instead of some fifteen or twenty “background witnesses,” as originally planned; twenty-three sessions, out of a total of a hundred and twenty-one, were entirely devoted to “background,” which meant they had no apparent bearing upon the case. Though the witnesses for the prosecution were hardly ever cross-examined by either the defense or the judges, the judgment did not accept evidence that had bearing on Eichmann unless it was given some other corroboration. (Thus, the judges refused to charge Eichmann with the murder of the Jewish boy in Hungary; or with having instigated the Kristallnacht in Germany and Austria, of which he certainly knew nothing at the time and, even in Jerusalem, knew considerably less than the least well-informed student of the period; or with the murder of ninety-three children of Lidice, who, after Heydrich's assassination, were deported to Lódz, since “it has not been proved beyond reasonable doubt, according to the evidence before us, that they were murdered”; or with responsibility for the hideous operations of Unit 1005, “amongst the most horrifying parts of all the evidence submitted by the prosecution, which had had the task of opening the mass graves in the East and disposing of the corpses in order to efface all traces of slaughter, and was commanded by Standartenführer Paul Blobel, who, according to his own testimony at Nuremberg, took orders from Müller, the head of Section IV of the R.S.H.A.; or with the dreadful conditions under which Jews left alive in the extermination camps were evacuated to German concentration camps, especially to Bergen-Belsen, during the last months of the war.) The gist of the background witnesses' testimony about conditions in the Polish ghettos, about procedures in the various death camps, about forced labor and, generally, the attempt to exterminate through labor, was never in dispute; on the contrary, there was hardly anything in what they told that had not been known before. If Eichmann's name was mentioned at all, it obviously was hearsay evidence, “rumors testified to,” hence without legal validity. The testimony of all witnesses who had “seen him with their own eyes” collapsed the moment a question was addressed to them, and the judgment found “that the center of gravity of his activities was within the Reich itself, the Protectorate, and in the countries of Europe to the west, north, south, southeast and Central Europe”—that is, everywhere except in the East. Why, then, did the court not waive these hearings, which lasted for weeks and months on end? In discussing this question, the judgment was somewhat apologetic, and finally gave an explanation that was curiously inconsistent: “Since the accused denied all the counts in the indictment,” the judges could not dismiss “evidence on the factual background.” The accused, however, had never denied these facts in the indictment, he had only denied that he was responsible for them “in the sense of the indictment.”
Actually, the judges were faced with a highly unpleasant dilemma. At the very beginning of the trial, Dr. Servatius had impugned the impartiality of the judges; no Jew, in his opinion, was qualified to sit in judgment on the implementers of the Final Solution, and the presiding judge had replied: “We are professional judges, used and accustomed to weighing evidence brought before us and to doing our work in the public eye and subject to public criticism…. When a court sits in judgment, the judges who compose it are human beings, are flesh and blood, with feelings and senses, but they are obliged by the law to restrain those feelings and senses. Otherwise, no judge could ever be found to try a criminal case where his abhorrence might be aroused…. It cannot be denied that the memory of the Nazi holocaust stirs every Jew, but while this case is being tried before us it will be our duty to restrain these feelings, and this duty we shall honor.” Which was good and fair enough, unless Dr. Servatius meant to imply that Jews might lack a proper understanding of the problem their presence caused in the midst of the nations of the world, and hence would fail to appreciate a “final solution” of it. But the irony of the situation was that in case he had felt inclined to make this argument, he could have been answered that the accused, according to his own, emphatically repeated testimony, had learned all he knew about the Jewish question from Jewish-Zionist authors, from the “basic books” of Theodor Herzl and Adolf Böhm. Who, then, could be better qualified to try him than these three men, who had all been Zionists since their early youth?
It was not with respect to the accused, then, but with respect to the background witnesses that the fact of the Jewishness of the judges, of their living in a country where every fifth person was a survivor, became acute and troublesome. Mr. Hausner had gathered together a “tragic multitude” of sufferers, each of them eager not to miss this unique opportunity, each of them convinced of his right to his day in court. The judges might, and did, quarrel with the prosecutor about the wisdom and even the appropriateness of using the occasion for “painting general pict
ures,” but once a witness had taken the stand, it was difficult indeed to interrupt him, to cut short such testimony, “because of the honor of the witness and because of the matters about which he speaks,” as Judge Landau put it. Who were they, humanly speaking, to deny any of these people their day in court? And who would have dared, humanly speaking, to question their veracity as to detail when they “poured out their hearts as they stood in the witness box,” even though what they had to tell could only “be regarded as by-products of the trial”?
There was an additional difficulty. In Israel, as in most other countries, a person appearing in court is deemed innocent until proved guilty. But in the case of Eichmann this was an obvious fiction. If he had not been found guilty before he appeared in Jerusalem, guilty beyond any reasonable doubt, the Israelis would never have dared, or wanted, to kidnap him; Prime Minister BenGurion, explaining to the President of Argentina, in a letter dated June 3, 1960, why Israel had committed a “formal violation of Argentine law,” wrote that “it was Eichmann who organized the mass murder [of six million of our people], on a the mass murder [of six million of our people], on a gigantic and unprecedented scale, throughout Europe.” In contrast to normal arrests in ordinary criminal cases, where suspicion of guilt must be proved to be substantial and reasonable but not beyond reasonable doubt—that is the task of the ensuing trial—Eichmann's illegal arrest could be justified, and was justified in the eyes of the world, only by the fact that the outcome of the trial could be safely anticipated. His role in the Final Solution, it now turned out, had been wildly exaggerated —partly because of his own boasting, partly because the defendants at Nuremberg and in other postwar trials had tried to exculpate themselves at his expense, and chiefly because he had been in close contact with Jewish functionaries, since he was the one German official who was an “expert in Jewish affairs” and in nothing else. The prosecution, basing its case upon sufferings that were not a bit exaggerated, had exaggerated the exaggeration beyond rhyme or reason—or so one thought until the judgment of the Court of Appeal was handed down, in which one could read: “It was a fact that the appellant had received no ‘superior orders’ at all. He was his own superior, and he gave all orders in matters that concerned Jewish affairs.” That had been precisely the argument of the prosecution, which the judges in the District Court had not accepted, but, dangerous nonsense though it was, the Court of Appeal fully endorsed it. (It was supported chiefly by the testimony of Justice Michael A. Musmanno, author of Ten Days to Die [1950], and a former judge at Nuremberg, who had come from America to testify for the prosecution. Mr. Musmanno had sat on the trials of the administrators of the concentration camps, and of the members of the mobile killing units in the East; and while Eichmann's name had come up in the proceedings, he had mentioned it only once in his judgments. He had, however, interviewed the Nuremberg defendants in their prison. And there Ribbentrop had told him that Hitler would have been all right if he had not fallen under Eichmann's influence. Well, Mr. Musmanno did not believe all he was told, but he did believe that Eichmann had been given his commission by Hitler himself and that his power “came by speaking through Himmler and through Heydrich.” A few sessions later, Mr. Gustave M. Gilbert, professor of psychology at Long Island University and author of Nuremberg Diary [1947], appeared as a witness for the prosecution. He was more cautious than Justice Musmanno, whom he had introduced to the defendants at Nuremberg. Gilbert testified that “Eichmann… wasn't thought of very much by the major Nazi war criminals… at that time,” and also that Eichmann, whom they both assumed dead, had not been mentioned in discussions of the war crimes between Gilbert and Musmanno.) The District Court judges, then, because they saw through the exaggerations of the prosecution and had no wish to make Eichmann the superior of Himmler and the inspirer of Hitler, were put in the position of having to defend the accused. The task, apart from its un-pleasantness, was of no consequence for either judgment or sentence, as “the legal and moral responsibility of him who de-livers the victim to his death is, in our opinion, no smaller and may even be greater than the liability of him who does the victim to death.”
The judges' way out of all these difficulties was through compromise. The judgment falls into two parts, and the by far larger part consists of a rewriting of the prosecution's case. The judges indicated their fundamentally different approach by starting with Germany and ending with the East, for this meant that they intended to concentrate on what had been done instead of on what the Jews had suffered. In an obvious rebuff to the prosecution, they said explicitly that sufferings on so gigantic a scale were “beyond human understanding,” a matter for “great authors and poets,” and did not belong in a courtroom, whereas the deeds and motives that had caused them were neither beyond understanding nor beyond judgment. They even went so far as to state that they would base their findings upon their own presentation, and, indeed, they would have been lost if they had not gone to the enormous amount of work that this implied. They got a firm grasp on the intricate bureaucratic setup of the Nazi machinery of destruction, so that the position of the accused could be understood. In contrast to the introductory speech of Mr. Hausner, which has already been published as a book, the judgment can be studied with profit by those with a historical interest in this period. But the judgment, so pleasantly devoid of cheap oratory, would have destroyed the case for the prosecution altogether if the judges had not found reason to charge Eichmann with some responsibility for crimes in the East, in addition to the main crime, to which he had confessed, namely, that he had shipped people to their death in full awareness of what he was doing.
Four points were chiefly in dispute. There was, first, the question of Eichmann's participation in the mass slaughter carried out in the East by the Einsatzgruppen, which had been set up by Heydrich at a meeting, held in March, 1941, at which Eichmann was present. However, since the commanders of the Einsatzgruppen were members of the intellectual élite of the S.S., while their troops were either criminals or ordinary soldiers drafted for punitive duty—nobody could volunteer—Eichmann was connected with this important phase of the Final Solution only in that he received the reports of the killers, which he then had to summarize for his superiors. These reports, though “top secret,” were mimeographed and went to between fifty and seventy other offices in the Reich, in each of which there sat, of course, some Oberregierungsrat who summarized them for the higher-ups. There was, in addition to this, the testimony of Justice Musmanno, who claimed that Walter Schellenberg, who had drawn up the draft agreement between Heydrich and General Walter von Brauchitsch, of the military command, specifying that the Einsatzgruppen were to enjoy full freedom in “the execution of their plans as regards the civil population,” that is, in the killing of civilians, had told him in a conversation at Nuremberg that Eichmann had “controlled these operations” and had even “personally supervised” them. The judges “for reasons of caution” were unwilling to rely on an uncorroborated statement of Schellenberg's, and threw out this evidence. Schellenberg must have had a remarkably low opinion of the Nuremberg judges and their ability to find their way through the labyrinthine administrative structure of the Third Reich. Hence, all that was left was evidence that Eichmann was well informed of what was going on in the East, which had never been in dispute, and the judgment, surprisingly, concluded that this evidence was sufficient to constitute proof of actual participation.
The second point, dealing with the deportation of Jews from Polish ghettos to the nearby killing centers, had more to recommend it. It was indeed “logical” to assume that the transportation expert would have been active in the territory under the General Government. However, we know from many other sources that the Higher S.S. and Police Leaders were in charge of transportation for this whole area—to the great grief of Governor General Hans Frank, who in his diary complained endlessly about interference in this matter without ever mentioning Eichmann's name. Franz Novak, Eichmann's transportation officer, testifying for the defens
e, corroborated Eichmann's version: occasionally, of course, they had had to negotiate with the manager of the Ostbahn, the Eastern Railways, because shipments from the western parts of Europe had to be coordinated with local operations. (Of these transactions, Wisliceny had given a good account at Nuremberg. Novak used to contact the Ministry of Transport, which, in turn, had to obtain clearance from the Army if the trains entered a theater of war. The Army could veto transports. What Wisliceny did not tell, and what is perhaps more interesting, is that the Army used its right of veto only in the initial years, when German troops were on the offensive; in 1944, when the deportations from Hungary clogged the lines of retreat for whole German armies in desperate flight, no vetoes were forthcoming.) But when, for instance, the Warsaw ghetto was evacuated in 1942, at the rate of five thousand people a day, Himmler himself conducted the negotiations with the railway authorities, and Eichmann and his outfit had nothing whatever to do with them. The judgment finally fell back on testimony given by a witness at the Höss trial that some Jews from the General Government area had arrived in Auschwitz together with Jews from Bialystok, a Polish city that had been incorporated into the German province of East Prussia, and hence fell within Eichmann's jurisdiction. Yet even in the Warthegau, which was Reich territory, it was not the R.S.H.A. but Gauleiter Greiser who was in charge of extermination and deportation. And although in January, 1944, Eichmann visited the Lódz ghetto—the largest in the East and the last to be liquidated—again it was Himmler himself who, a month later, came to see Greiser and ordered the liquidation of Lódz. Unless one accepted the prosecution's preposterous claim that Eichmann had been able to inspire Himmler's orders, the mere fact that Eichmann shipped Jews to Auschwitz could not possibly prove that all Jews who arrived there had been shipped by him. In view of Eichmann's strenuous denials and the utter lack of corroborative evidence, the conclusions of the judgment on this point appeared, unhappily, to constitute a case of in dubio contra reum.
Eichmann in Jerusalem: A Report on the Banality of Evil Page 27
