Hence, after the tape-recorder had addressed the court, the death sentence was a foregone conclusion, even legally, except for the possibility that the punishment might be mitigated for acts done under superior orders—also provided for in Section 11 of the Israeli law, but this was a very remote possibility in view of the enormity of the crime. (It is important to remember that counsel for the defense pleaded not superior orders but “acts of state,” and asked for acquittal on that ground—a strategy Dr. Servatius had already tried unsuccessfully at Nuremberg, where he defended Fritz Sauckel, Plenipotentiary for Labor Allocation in Göring's Office of the Four-Year Plan, who had been responsible for the extermination of tens of thousands of Jewish workers in Poland and who was duly hanged in 1946. “Acts of state,” which German jurisprudence even more tellingly calls gerichtsfreie or justizlose Hoheitsakte, rest on “an exercise of sovereign power” [E. C. S. Wade in the British Year Book for International Law, 1934] and hence are altogether outside the legal realm, whereas all orders and commands, at least in theory, are still under judicial control. If what Eichmann did had been acts of state, then none of his superiors, least of all Hitler, the head of state, could be judged by any court. The “act of state” theory agreed so well with Dr. Servatius' general philosophy that it was perhaps not surprising that he should have tried it out again; what was surprising was that he did not fall back on the argument of superior orders as an extenuating circumstance after the judgment had been read and before the sentence was pronounced.) At this point, one was perhaps entitled to be glad that this was no ordinary trial, where statements without bearing on the criminal proceedings must be thrown out as irrelevant and immaterial. For, obviously, things were not so simple as the framers of the laws had imagined them to be, and if it was of small legal relevance, it was of great political interest to know how long it takes an average person to overcome his innate repugnance toward crime, and what exactly happens to him once he has reached that point. To this question, the case of Adolf Eichmann supplied an answer that could not have been clearer and more precise.
In September, 1941, shortly after his first official visits to the killing centers in the East, Eichmann organized his first mass deportations from Germany and the Protectorate, in accordance with a “wish” of Hitler, who had told Himmler to make the Reich judenrein as quickly as possible. The first shipment contained twenty thousand Jews from the Rhineland and five thousand Gypsies, and in connection with this first transport a strange thing happened. Eichmann, who never made a decision on his own, who was extremely careful always to be “covered” by orders, who—as freely given testimony from practically all the people who had worked with him confirmed—did not even like to volunteer suggestions and always required “directives,” now, “for the first and last time,” took an initiative contrary to orders: instead of sending these people to Russian territory, Riga or Minsk, where they would have immediately been shot by the Einsatzgruppen, he directed the transport to the ghetto of Lódz, where he knew that no preparations for extermination had yet been made—if only because the man in charge of the ghetto, a certain Regierungspräsident Uebelhör, had found ways and means of deriving considerable profit from “his” Jews. (Lódz, in fact, was the first ghetto to be established and the last to be liquidated; those of its inmates who did not succumb to disease or starvation survived until the summer of 1944.) This decision was to get Eichmann into considerable trouble. The ghetto was overcrowded, and Mr. Uebelhor was in no mood to receive newcomers and in no position to accommodate them. He was angry enough to complain to Himmler that Eichmann had deceived him and his men with “horsetrading tricks learned from the Gypsies.” Himmler, as well as Heydrich, protected Eichmann and the incident was soon forgiven and forgotten.
Forgotten, first of all, by Eichmann himself, who did not once mention it either in the police examination or in his various memoirs. When he had taken the stand and was being examined by his lawyer, who showed him the documents, he insisted he had a “choice”: “Here for the first and last time I had a choice…. One was Lódz…. If there are difficulties in Lódz, these people must be sent onward to the East. And since I had seen the preparations, I was determined to do all I could to send these people to Lódz by any means at my disposal.” Counsel for the defense tried to conclude from this incident that Eichmann had saved Jews whenever he could—which was patently untrue. The prosecutor, who cross-examined him later with respect to the same incident, wished to establish that Eichmann himself had determined the final destination of all shipments and hence had decided whether or not a particular transport was to be exterminated—which was also untrue. Eichmann's own explanation, that he had not disobeyed an order but only taken advantage of a “choice,” finally, was not true either, for there had been difficulties in Lódz, as he knew full well, so that his order read, in so many words: Final destination, Minsk or Riga. Although Eichmann had forgotten all about it, this was clearly the only instance in which he actually had tried to save Jews. Three weeks later, however, there was a meeting in Prague, called by Heydrich, during which Eichmann stated that “the camps used for the detention of [Russian] Communists [a category to be liquidated on the spot by the Einsatzgruppen] can also include Jews” and that he had “reached an agreement” to this effect with the local commanders; there was also some discussion about the trouble at Lódz, and it was finally resolved to send fifty thousand Jews from the Reich (that is, including Austria, and Bohemia and Moravia) to the centers of the Einsatzgruppen operations at Riga and Minsk. Thus, we are perhaps in a position to answer Judge Landau's question—the question uppermost in the minds of nearly everyone who followed the trial—of whether the accused had a conscience: yes, he had a conscience, and his conscience functioned in the expected way for about four weeks, whereupon it began to function the other way around.
Even during those weeks when his conscience functioned normally, it did its work within rather odd limits. We must remember that weeks and months before he was informed of the Führer's order, Eichmann knew of the murderous activities of the Einsatzgruppen in the East; he knew that right behind the front lines all Russian functionaries (“Communists”), all Polish members of the professional classes, and all native Jews were being killed in mass shootings. Moreover, in July of the same year, a few weeks before he was called to Heydrich, he had received a memorandum from an S.S. man stationed in the Warthegau, telling him that “Jews in the coming winter could no longer be fed,” and submitting for his consideration a proposal as to “whether it would not be the most humane solution to kill those Jews who were incapable of work through some quicker means. This, at any rate, would be more agreeable than to let them die of starvation.” In an accompanying letter, addressed to “Dear Comrade Eichmann,” the writer admitted that “these things sound sometimes fantastic, but they are quite feasible.” The admission shows that the much more “fantastic” order of the Führer was not yet known to the writer, but the letter also shows to what extent this order was in the air. Eichmann never mentioned this letter and probably had not been in the least shocked by it. For this proposal concerned only native Jews, not Jews from the Reich or any of the Western countries. His conscience rebelled not at the idea of murder but at the idea of German Jews being murdered. (“I never denied that I knew that the Einsatzgruppen had orders to kill, but I did not know that Jews from the Reich evacuated to the East were subject to the same treatment. That is what I did not know.”) It was the same with the conscience of a certain Wilhelm Kube, an old Party member and Generalkommissar in Occupied Russia, who was outraged when German Jews with the Iron Cross arrived in Minsk for “special treatment.” Since Kube was more articulate than Eichmann, his words may give us an idea of what went on in Eichmann's head during the time he was plagued by his conscience: “I am certainly tough and I am ready to help solve the Jewish question,” Kube wrote to his superior in December, 1941, “but people who come from our own cultural milieu are certainly something else than the native animalized horde
s.” This sort of conscience, which, if it rebelled at all, rebelled at murder of people “from our own cultural milieu,” has survived the Hitler regime; among Germans today, there exists a stubborn “misinformation” to the effect that “only” Ostjuden, Eastern European Jews, were massacred.
Nor is this way of thinking that distinguishes between the murder of “primitive” and of “cultured” people a monopoly of the German people. Harry Mulisch relates how, in connection with the testimony given by Professor Salo W. Baron about the cultural and spiritual achievements of the Jewish people, the following questions suddenly occurred to him: “Would the death of the Jews have been less of an evil if they were a people without a culture, such as the Gypsies who were also exterminated? Is Eichmann on trial as a destroyer of human beings or as an annihilator of culture? Is a murderer of human beings more guilty when a culture is also destroyed in the process?” And when he put these questions to the Attorney General, it turned out—“He [Hausner] thinks yes, I think no.” How ill we can afford to dismiss this matter, bury the troublesome question along with the past, came to light in the recent film Dr. Strangelove, where the strange lover of the bomb—characterized, it is true, as a Nazi type*proposes to select in the coming disaster some hundred thousand persons to survive in underground shelters. And who are to be the happy survivors? Those with the highest I.Q.!
This question of conscience, so troublesome in Jerusalem, had by no means been ignored by the Nazi regime. On the contrary, in view of the fact that the participants in the anti-Hitler conspiracy of July, 1944, very rarely mentioned the wholesale massacres in the East in their correspondence or in the statements they prepared for use in the event that the attempt on Hitler's life was successful, one is tempted to conclude that the Nazis greatly overestimated the practical importance of the problem. We may here disregard the early stages of the German opposition to Hitler, when it was still anti-Fascist and entirely a movement of the Left, which as a matter of principle accorded no significance to moral issues and even less to the persecution of the Jews—a mere “diversion” from the class struggle that in the opinion of the Left determined the whole political scene. Moreover, this opposition had all but disappeared during the period in question—destroyed by the horrible terror of the S.A. troops in the concentration camps and Gestapo cellars, unsettled by full employment made possible through rearmament, demoralized by the Communist Party's tactic of joining the ranks of Hitler's party in order to install itself there as a “Trojan horse.” What was left of this opposition at the beginning of the war—some trade-union leaders, some intellectuals of the “homeless Left” who did not and could not know if there was anything behind them—gained its importance solely through the conspiracy which finally led to the 20th of July. (It is of course quite inadmissible to measure the strength of the German resistance by the number of those who passed through the concentration camps. Before the outbreak of the war, the inmates belonged in a great number of categories, many of which had nothing whatsoever to do with resistance of any kind: there were the wholly “innocent” ones, such as the Jews; the “asocials,” such as confirmed criminals and homosexuals; Nazis who had been found guilty of something or other; etc. During the war the camps were populated by resistance fighters from all over occupied Europe.)
Most of the July conspirators were actually former Nazis or had held high office in the Third Reich. What had sparked their opposition had been not the Jewish question but the fact that Hitler was preparing war, and the endless conflicts and crises of conscience under which they labored hinged almost exclusively on the problem of high treason and the violation of their loyalty oath to Hitler. Moreover, they found themselves on the horns of a dilemma which was indeed insoluble: in the days of Hitler's successes they felt they could do nothing because the people would not understand, and in the years of German defeats they feared nothing more than another “stab-in-the-back” legend. To the last, their greatest concern was how it would be possible to prevent chaos and to ward off the danger of civil war. And the solution was that the Allies must be “reasonable” and grant a “moratorium” until order was restored—and with it, of course, the German Army's ability to offer resistance. They possessed the most precise knowledge of what was going on in the East, but there is hardly any doubt that not one of them would have dared even to think that the best thing that could have happened to Germany under the circumstances would have been open rebellion and civil war. The active resistance in Germany came chiefly from the Right, but in view of the past record of the German Social Democrats, it may be doubted that the situation would have been very different if the Left had played a larger part among the conspirators. The question is academic in any case, for no “organized socialist resistance” existed in Germany during the war years—as the German historian, Gerhard Ritter, has rightly pointed out.
In actual fact, the situation was just as simple as it was hopeless: the overwhelming majority of the German people believed in Hitler—even after the attack on Russia and the feared war on two fronts, even after the United States entered the war, indeed even after Stalingrad, the defection of Italy, and the landings in France. Against this solid majority, there stood an indeterminate number of isolated individuals who were completely aware of the national and of the moral catastrophe; they might occasionally know and trust one another, there were friendships among them and an exchange of opinions, but no plan or intention of revolt. Finally there was the group of those who later became known as the conspirators, but they had never been able to come to an agreement on anything, not even on the question of conspiracy. Their leader was Carl Friedrich Goerdeler, former mayor of Leipzig, who had served three years under the Nazis as price-controller but had resigned rather early —in 1936. He advocated the establishment of a constitutional monarchy, and Wilhelm Leuschner, a representative of the Left, a former trade-union leader and Socialist, assured him of “mass support”; in the Kreisau circle, under the influence of Helmuth von Moltke, there were occasional complaints raised that the rule of law was “now trampled under foot,” but the chief concern of this circle was the reconciliation of the two Christian churches and their “sacred mission in the secular state,” combined with an outspoken stand in favor of federal-ism. (On the political bankruptcy of the resistance movement as a whole since 1933 there is a well-documented, impartial study, the doctoral dissertation of George K. Romoser, soon to be published.)
As the war went on and defeat became more certain, political differences should have mattered less and political action become more urgent, but Gerhard Ritter seems right here too: “Without the determination of [Count Klaus von] Stauffberg, the resistance movement would have bogged down in more or less help-less inactivity.” What united these men was that they saw in Hitler a “swindler,” a “dilettante,” who “sacrificed whole armies against the counsel of his experts,” a “madman” and a “demon,” “the incarnation of all evil,” which in the German context meant something both more and less than when they called him a “criminal and a fool,” which they occasionally did. But to hold such opinions about Hitler at this late date “in no way precluded membership in the S.S. or the Party, or the holding of a government post” [Fritz Hesse], hence it did not exclude from the circle of the conspirators quite a number of men who themselves were deeply implicated in the crimes of the regime—as for instance Count Helldorf, then Police Commissioner of Berlin, who would have become Chief of the German Police if the coup d'état had been successful (according to one of Goerdeler's lists of prospective ministers); or Arthur Nebe of the R.S.H.A., former commander of one of the mobile killing units in the East! In the summer of 1943, when the Himmler-directed extermination program had reached its climax, Goerdeler was considering Himmler and Goebbels as potential allies, “since these two men have realized that they are lost with Hitler.” (Himmler indeed became a “potential ally”-though Goebbels did not—and was fully informed of their plans; he acted against the conspirators only after their failure.) I am quo
ting from the draft of a letter by Goerdeler to Field Marshal von Kluge; but these strange alliances cannot be explained away by “tactical considerations” necessary vis-á-vis the Army commanders, for it was, on the contrary, Kluge and Rommel who had given “special orders that those two monsters [Himmler and Göring] should be liquidated” [Ritter]—quite apart from the fact that Goerdeler's biographer, Ritter, insists that the above-quoted letter “represents the most passionate expression of his hatred against the Hitler regime.”
No doubt these men who opposed Hitler, however belatedly, paid with their lives and suffered a most terrible death; the courage of many of them was admirable, but it was not inspired by moral indignation or by what they knew other people had been made to suffer; they were motivated almost exclusively by their conviction of the coming defeat and ruin of Germany. This is not to deny that some of them, such as Count York von Wartenburg, may have been roused to political opposition initially by “the revolting agitation against the Jews in November, 1938” [Ritter]. But that was the month when the synagogues went up in flames and the whole population seemed in the grip of some fear: houses of God had been set on fire, and believers as well as the superstitious feared the vengeance of God. To be sure, the higher officer corps was disturbed when Hitler's so-called “commissar order” was issued in May, 1941, and they learned that in the coming campaign against Russia all Soviet functionaries and naturally all Jews were simply to be massacred. In these circles, there was of course some concern about the fact that, as Goerdeler said, “in the occupied areas and against the Jews techniques of liquidating human beings and of religious persecution are practiced… which will always rest as a heavy burden on our history.” But it seems never to have occurred to them that this signified something more, and more dreadful, than that “it will make our position [negotiating a peace treaty with the Allies] enormously difficult,” that it was a “blot on Germany's good name” and was undermining the morale of the Army. “What on earth have they made of the proud army of the Wars of Liberation [against Napoleon in 1814] and of Wilhelm I [in the Franco-Prussian War of 1870],” Goerdeler cried when he heard the report of an S.S. man who “nonchalantly related that it ‘wasn't exactly pretty to spray with machine-gun fire ditches crammed with thousands of Jews and then to throw earth on the bodies that were still twitching.’” Nor did it occur to them that these atrocities might be somehow connected with the Allies' demand for unconditional surrender, which they felt free to criticize as both “nationalistic” and “unreasonable,” inspired by blind hatred. In 1943, when the eventual defeat of Germany was almost a certainty, and indeed even later, they still believed that they had a right to negotiate with their enemies “as equals” for a “just peace,” although they knew only too well what an unjust and totally unprovoked war Hitler had started. Even more startling are their criteria for a “just peace.” Goerdeler stated them again and again in numerous memoranda: “the re-establishment of the national borders of 1914 [which meant the annexation of Alsace-Lorraine], with the addition of Austria and the Sudetenland”; furthermore, a “leading position for Germany on the Continent” and perhaps the regaining of South Tyrol!