Archive/File: people/e/eichmann.adolf/transcripts/Judgment/Judgment-061
Last-Modified: 1999/05/27

199. The third count in the indictment refers, as has been
mentioned, to the entire period of the Nazi regime, and
should therefore be divided into two periods of time: the
one including the first two stages of the persecution of the
Jews, and the other, the last stage, beginning in the summer
of 1941.  Here, too, the accusation is of a crime against
the Jewish People, this time by causing serious bodily or
mental harm to Jews.  In connection with the first stage,
until the outbreak of war, we have already said that the
Accused's participation in the activities mentioned in
section (d) of this count has not been proved (sections 184,
185).  In connection with the second stage, we have held,
out of doubt, that at that time the intention to exterminate
did not yet exist in the mind of the Accused (section 186).
As to the last stage - beginning August 1941 - there is no
doubt that causing serious bodily harm to Jews was a direct
and unavoidable result of the activities which were carried
out with the intention of exterminating those Jews who
remained alive, for instance the witnesses to the
catastrophe who have given evidence in this case.  In the
language of the third count, section (c), it has been proved
that,

"...the Accused, together with others, caused this grave
harm by means of enslavement, starvation, deportation and
persecution, confinement to ghettos, to transit camps and to
concentration camps - all this under conditions intended to
humiliate the Jews, to deny  their rights as human beings,
to suppress and torment them by inhuman suffering and
torture,"   and all this with the intention of exterminating
the Jewish People.

The fourth count speaks of devising measures intended to
prevent child-bearing among the Jews.  The time is limited
to the period beginning in the year 1942.  In this count,
the Attorney General apparently did not mean that part of
Heydrich's speech at the Wannsee Conference where he talked
about segregating the sexes during the deportation of the
Jews to the East.  In any case, we do not think that the
prevention of child-bearing was an explicit part of the
Final Solution plan, as put by Heydrich before the
participants at the conference, although action against the
Jews in preparation for the Final Solution was in many
places accompanied by segregation of the sexes.  We shall,
therefore, confine ourselves to the concrete matters
mentioned in section (c) of the fourth count - the Accused's
order to prevent child-bearing in Terezin has been proved,
though it has not been proved that he took part in giving
directives for the prevention of child-bearing in the Kovno
Ghetto (section 159).  In connection with the sterilization
of the descendants of mixed marriages (Section (c)(3) of the
fourth count), as stated above, the negotiations conducted
with the participation of the Accused did not reach a final
result, and we do not know if the means there discussed were
actually employed (section 158).  In Section 1(b)(4) of the
Law, it says "devising measures, etc.," seemingly along the
lines of Section 2(d) of the Convention on the Prevention
and Punishment of the Crimes of Genocide, wherein the
expression "imposing measures" is used.  We are of the
opinion that "devising measures" here means actually putting
these measures into effect, at least to the stage of giving
orders to carry them out.  This has not been proved against
the Accused in the matter of sterilization.

200. Counts five, six and seven of the indictment charge the
Accused with crimes against humanity committed against Jews.
According to Section 1(a)(2) of the Law, "crime against
humanity" means one of the following acts: "murder,
extermination, enslavement, starvation, and deportation of
civilian population; and also persecution on national,
racial, religious or political grounds."

 The fifth count attributes to the Accused acts mentioned in
the first part of the definition (murder, extermination,
enslavement, starvation or deportation), and the sixth count
includes everything mentioned in counts 1-5, and charges the
Accused that by carrying out all these actions, he
persecuted Jews on national, racial, religious or political
grounds, as mentioned in the second part of the definition.

201. It is clear that both parts of the definition of the
crime against humanity apply to all the activities of the
Accused against the Jews at the final stage, as from August
1941, and that at this stage he participated in all the
inhuman acts mentioned in the section of the Law (murder,
extermination, enslavement, starvation and deportation of
civilian population).  Causing serious damage to the Jews,
bodily or mentally, was also an inhuman act committed
against the civilian population.  All his acts carried out
with the intent of exterminating the Jewish People also
amount, in fact, to the persecution of Jews on national,
racial, religious and political grounds.  In addition, the
Accused will also be convicted (unless justification for his
acts can be found) of crime against humanity, instead of
crime against the Jewish People, by reason of his activities
in the Central Offices for Jewish Emigration in Vienna,
Prague and Berlin until October 1941 (sections 63-66, 80)
and by organizing deportations to Nisko, the evacuation of
Jews from territories annexed to the Reich in the East (the
Warthe district, etc.), the expulsion of the Jews of Stettin
and the expulsion of the Jews of Baden and the Saar-
Palatinate (sections 72-75, 77).  It should be pointed out
that crimes committed during the first stage, before the
outbreak of World War II, also come within the definition of
crime against humanity, according to Section 1(a)(2), which
refers to the entire period of Nazi rule, beginning on 30
January 1933 (see Section 16 of the Law).

202. The seventh count refers to the plunder of the property
of the victims, and in this connection charges the Accused
with a crime against humanity.  In this regard, Counsel for
the Defence put forward a legal argument that, according to
the definition in the Law, plunder of property is not
included in the list of acts constituting crimes against
humanity. The Attorney General argued that plunder of
property comes within the definition of "any other inhuman
act committed against any civilian population," as stated in
Section 1(b) of the Law.

It is to be pointed out that "plunder of public or private
property" is especially mentioned in the list of acts which
come within the definition of war crime.  May we read into
the general concept of "any other inhuman act" something
expressly mentioned by the legislator in proximity to the
same part of the Law?
203. The courts at Nuremberg were already troubled by the
question before us when they had to interpret similar
provisions in the London Charter and in Control Council Law
No. 10.  In the case of Flick (Green Series, Vol. 6), the
court expressed the opinion that the plunder of Jewish
industrial property on the basis of discriminating laws in
regard to the confiscation of Jewish property, could not be
considered a crime against humanity.  The court there says
(supra, p. 1214):

     "Such use of pressure, even on racial or religious
     grounds, has never been considered to be a crime
     against humanity."

But it adds:

     "A distinction could be made between industrial
     property and the dwellings, household supplies and food
     supplies of a persecuted people.  In this case,
     however, we are only concerned with industrial
     property."

In "The Ministries Case" (Green Series, Vols. 13-14), the
same question was considered in the matter of the Minister
of Finance, Schwerin von Krosigk.  A majority of the judges
in this case convicted Schwerin-Krosigk of war crimes and of
a crime against humanity, by reason of his participation in
the notorious meeting held by Goering after the Crystal
Night, at which it was decided to impose upon the Jews a
levy of "expiation money" amounting to one billion Marks;
publication of regulations for the carrying out of this
order; participation in the issue of directives for the
confiscation of the property of deported Jews; and the
publication of Regulation No. 11 under the Citizenship Law,
in regard to the confiscation of Jewish property upon
crossing the Reich frontier; and also participation in the
realization of the confiscated property which fell into the
hands of the Germans when the Warsaw Ghetto was evacuated.
One of the judges dissented, saying (vol. 14, p. 930):

     "It cannot be a crime against humanity, because merely
     depriving people of their property is not such a crime.
     There must be some maltreatment of the person ..."

The same court reconsidered its judgment and confirmed the
conviction of Schwerin-Krosigk.  This time the court uses
the following language (vol. 14, p. 991):

     "...nor can there be any doubt of the fate of the vast
     majority of the Jews thus robbed.  Arrest, imprisonment
     in concentration camps, theft and death were essential
     parts of the same horrible scheme."

The International Military Tribunal, which tried the main
war criminals, also touched upon the question before us in
the matter of the Minister of Economy and President of the
Reichsbank, Funk.  Amongst his deeds, the court mentions
that, in the year 1942, an agreement was concluded between
him and Himmler, according to which the Reichsbank was to
receive from the SS jewellery and sums of money from the
property of the victims of concentration camps, and that he
issued instructions to his officials not to ask any
questions in connection with this arrangement (English
edition, vol. 22, p. 551).  This served as one of the
grounds for the conviction of Funk of a war crime and crime
against humanity.

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