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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