Archive/File: people/e/eichmann.adolf/transcripts/Judgment/Judgment-065 Last-Modified: 1999/05/27 216. The Accused's principal defence is that everything he did was in accordance with orders from his superiors. This he regards as full justification for all his deeds. He explains that his SS training inculcated in him the idea that blind obedience is of primary importance, obedience based on boundless confidence in the wise judgment of the leadership, which will always know what the good of the Reich demands and will give its orders accordingly. At the end of the trial, we heard this argument in its most extreme form from Counsel for the Defence, as follows: "Faith in the leadership is the basic principle of all states. Deeds are silent, obedience is blind. The state can rely on these virtues alone. It depends upon the success of politics whether these virtues are rewarded. Where politics have failed, the order is considered as a crime in the eyes of the victor. He who has obeyed is unlucky; he has to pay for his loyalty. The gallows or a decoration - that is the question: The deed which fails will be a common crime. If it succeeds, it will be sanctified" (Session 114, Vol. V, p. xxx39.) If by these words Counsel for the Defence intended to describe a totalitarian regime, based on denial of all law, as was Hitler's regime in Germany, then his words are indeed apt. Such a rule seeks to turn the citizen into an obedient subject who will carry out an order coming from above, be it an order to commit an injustice, to oppress or to murder. It is also true that under such a regime the criminal who obeyed a criminal leader is not punished, but, on the contrary, is rewarded, and only when the entire regime collapses will he become amenable to justice. But such arguments are not to be voiced in any state in the world which bases itself on the rule of law. The attempt to turn an order for the extermination of millions of innocent people into a political act, with the aim of thus exempting from their personal criminal responsibility those who gave, and those who carried out, the order is of no avail. And do not let Counsel for the Defence console us with the promise of a world government to come, when such "acts of state" will become a thing of the past. We do not have to wait for such a radical change in the relations between nations, in order to bring a criminal to judgment, according to his own personal responsibility for his acts, which is the basis of criminal judgment all over the world. We have already considered in another chapter of our Judgment the Defence argument of "act of state" in international law, and have concluded that this cannot avail the Accused. At this point we shall only add that also according to the positive laws of the State of Israel, there is no such justification to absolve the Accused from responsibility for the crimes he committed, although they were committed at the command of one of the state authorities. The personal responsibility of a government official for his acts is the basis of the rule of law, which we have adopted at the inspiration of the Common Law. It is thus explained by Dicey, Law of the Constitution, 10th edition, Chap. XI, p. 326: "The minister or servant of the Crown...is legally responsible for the act in which he is concerned, and he cannot get rid of his liability by pleading that he acted in obedience to royal orders. Now supposing that the act done is illegal...he becomes at once liable to criminal or civil proceedings in a court of law." 217. An additional argument, in spirit similar to the former, which the Counsel for the Defence hinted at - rather than argued explicitly - is that the Accused could have relied for his defence upon the laws of war. In his summing up he said: "A declaration of war against the Jews was not made; however, there is a close relationship between the war and the fight against Jewry." (Session 114, Vol. V. pp. xxxx) Here, too, it would have been better had this argument not been put forward. It is true only that Nazi propaganda declared the Jews "enemies of the Reich," and for this purpose also exploited Dr. Weizmann's declaration at the Zionist Congress, on the eve of the outbreak of World War II, that the war of the Western democracies is the war of the Jewish People (Session 112, Vol. V., p. 81). As the Attorney General said, would that the Jews under the rule of Hitler had been granted the status and privileges of prisoners of war. But this "war" took the form of deporting helpless people to be slaughtered by citizens of the state in which they lived, without any reason save that of gratuitous hatred and without any aim save that of their extermination. It is true only that the state of war between Germany and the Allies created conditions convenient for the implementation of the "Final Solution," by enveloping the territory under German rule in a smoke screen, which veiled much of what was going on there from the eyes of the world, and made it easier to perpetrate the slaughter without outside interference. 218. A serious legal discussion of this subject is possible only within the compass of the argument of "superior orders." But according to our law, this plea also cannot lead to the Accused's acquittal of his criminal responsibility whenever the indictment is under the Nazis and Nazi Collaborators (Punishment) Law (hereinafter: the Law). Section 8 of the Law states: "Sections 16, 17, 18 and 19 of the Criminal Code shall not apply to offences under this Law." Section 19(b) of the Criminal Code Ordinance, 1936, is the one dealing with "superior orders," as follows: "A person is not criminally responsible for an act or omission if he does or omits to do the act in any of the following circumstances, that is to say:.... "(b) In obedience to the order of a competent authority which he is bound by law to obey, unless the order is manifestly unlawful. "Whether an order is or is not manifestly unlawful is a question of law." In spite of Section 8 of the Law, importance still attaches to the provisions of Section 19(b) of the Criminal Code also in regard to offences against the Law, because of Section 11 of the Law, which says: "In determining the punishment of a person convicted of an offence under this Law, the court may take into account, as grounds for mitigating the punishment, the following circumstances: "(a) that the person committed the offence under conditions which, but for Section 8, would have exempted him from criminal responsibility or constituted a reason for pardoning the offence, and that he did his best to reduce the gravity of the consequences of the offence; "(b)..... "However, in the case of an offence under Section 1, the court shall not impose on the offender a lighter punishment than imprisonment for a term of ten years." In this respect our Law follows Article 8 of the London Charter under which the International Military Tribunal at Nuremberg was set up, and Article II4(b) of Law No. 10 of the Allied Control Council for Germany, under which courts were set up to try subsequent cases against war criminals. They also refuse to accept a plea of "superior orders" as exempting from responsibility, but permit the court to consider the existence of such an order as grounds for mitigation of the penalty. 219. Although the provisions of Section 11 of the Law concern only the last stage of the proceedings - the stage of the sentence - it is desirable that already now we find the facts in that regard, since they flow from the same evidence which was adduced on the Accused's criminal responsibility. We shall, therefore, ask ourselves whether the Accused committed the offences in circumstances which might exempt him from responsibility, had Section 19(b) of the Criminal Code Ordinance applied here. This necessitates the consideration of the question whether the orders upon which the Accused acted were "manifestly unlawful." This concept in Section 19(b) is explained by the District Military Court for the Central District in the matter of the Chief Military Prosecutor v. Melinki and others (13 Pesakim Mehoziim, p. 90) in the following terms: "The distinguishing mark of a `manifestly unlawful order' should fly like a black flag above the given order, as a warning reading "Prohibited!". Not mere formal illegality, hidden or half-hidden, not the kind of illegality discernible only to the eyes of legal experts, but a flagrant and manifest breach of the law, certain and necessary illegality appearing on the face of the order itself; the clearly criminal character of the order or of the acts ordered, an illegality clearly visible and repulsive to the heart, provided the eye is not blind and the heart is not stony and corrupt - that is the extent of `manifest illegality' required to release a soldier from the duty of obedience upon him and make him criminally responsible for his acts." The Military Court of Appeal adopted these words in its judgment in the appeal in the same case (Pesakim Elyonim, vol. 44, p. 362), and added that our legislator's solution in Section 19(b) of the problem of conflict between law and obedience is, as it were, a golden mean between giving complete preference to one of those factors over the other, because "It recognizes the impossibility of reconciling these two values in full through the medium of pure formal law, and therefore relinquishes the attempt to solve the question solely by such means, and exceeds the pure legal categories, calling upon the feeling of legality which lies deep within every human conscience, also of those who are not conversant with books of law..." (supra, p. 410) And the Military Court of Appeal continues (supra, p. 411): "This is our law in this regard, and we, as a court of law, are not to question its validity. But we believe that this solution, arrived at through the inspiration of the best jurists within the sphere of influence of the English Common Law, is the best obtainable, and is best suited to the demands of a state like ours, based upon the rule of law."
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