This was not yet the end. Although Eichmann told him that he was not “tough enough” for these sights, that he had never been a soldier, had never been to the front, had never seen action, that he could not sleep and had nightmares, Müller, some nine months later, sent him back to the Lublin region, where the very enthusiastic Globocnik had meanwhile finished his preparations. Eichmann said that this now was the most horrible thing he had ever seen in his life. When he first arrived, he could not recognize the place, with its few wooden bungalows. Instead, guided by the same man with the vulgar voice, he came to a railway station, with the sign “Treblinka” on it, that looked exactly like an ordinary station anywhere in Germany—the same buildings, signs, clocks, installations; it was a perfect imitation. “I kept myself back, as far as I could, I did not draw near to see all that. Still, I saw how a column of naked Jews filed into a large hall to be gassed. There they were killed, as I was told, by something called cyanic acid.”
The fact is that Eichmann did not see much. It is true, he repeatedly visited Auschwitz, the largest and most famous of the death camps, but Auschwitz, covering an area of eighteen square miles, in Upper Silesia, was by no means only an extermination camp; it was a huge enterprise with up to a hundred thousand inmates, and all kinds of prisoners were held there, including non-Jews and slave laborers, who were not subject to gassing. It was easy to avoid the killing installations, and Höss, with whom he had a very friendly relationship, spared him the gruesome sights. He never actually attended a mass execution by shooting, he never actually watched the gassing process, or the selection of those fit for work—about twenty-five per cent of each shipment, on the average—that preceded it at Auschwitz. He saw just enough to be fully informed of how the destruction machinery worked: that there were two different methods of killing, shooting and gassing; that the shooting was done by the Einsatzgruppen and the gassing at the camps, either in chambers or in mobile vans; and in the camps elaborate precautions were taken to fool the victims right up to the end.
The police tapes from which I have quoted were played in court during the tenth of the trial's hundred and twenty-one sessions, on the ninth day of the almost nine months it lasted. Nothing the accused said, in the curiously disembodied voice that came out of the tape-recorder—doubly disembodied, because the body that owned the voice was present but itself also appeared strangely disembodied through the thick glass walls surrounding it—was denied either by him or by the defense. Dr. Servatius did not object, he only mentioned that “later, when the defense will rise to speak,” he, too, would submit to the court some of the evidence given by the accused to the police; he never did. The defense, one felt, could rise right away, for the criminal proceedings against the accused in this “historic trial” seemed complete, the case for the prosecution established. The facts of the case, of what Eichmann had done—though not of everything the prosecution wished he had done—were never in dispute; they had been established long before the trial started, and had been confessed to by him over and over again. There was more than enough, as he occasionally pointed out, to hang him. (“Don't you have enough on me?” he objected, when the police examiner tried to ascribe to him powers he never possessed.) But since he had been employed in transportation and not in killing, the question remained, legally, formally, at least, of whether he had known what he was doing; and there was the additional question of whether he had been in a position to judge the enormity of his deeds whether he was legally responsible, apart from the fact that he was medically sane. Both questions now were answered in the affirmative: he had seen the places to which the shipments were directed, and he had been shocked out of his wits. One last question, the most disturbing of all, was asked by the judges, and especially by the presiding judge, over and over again: Had the killing of Jews gone against his conscience? But this was a moral question, and the answer to it may not have been legally relevant.
But if the facts of the case were now established, two more legal questions arose. First, could he be released from criminal responsibility, as Section 10 of the law under which he was tried provided, because he had done his acts “in order to save himself from the danger of immediate death”? And, second, could he plead extenuating circumstances, as Section 11 of the same law enumerated them: had he done “his best to reduce the gravity of the consequences of the offense” or “to avert consequences more serious than those which resulted”? Clearly, Sections 10 and 11 of the Nazis and Nazi Collaborators (Punishment) Law of 1950 had been drawn up with Jewish “collaborators” in mind. Jewish Sonderkommandos (special units) had everywhere been employed in the actual killing process, they had committed criminal acts “in order to save themselves from the danger of immediate death,” and the Jewish Councils and Elders had cooperated because they thought they could “avert consequences more serious than those which resulted.” In Eichmann's case, his own testimony supplied the answer to both questions, and it was clearly negative. It is true, he once said his only alternative would have been suicide, but this was a lie, since we know how surprisingly easy it was for members of the extermination squads to quit their jobs without serious consequences for themselves; but he did not insist on this point, he did not mean to be taken literally. In the Nuremberg documents “not a single case could be traced in which an S.S. member had suffered the death penalty because of a refusal to take part in an execution” [Herbert Jäger, “Betrachtungen zum Eichmann-Prozess,” in Kriminologie und Strafrechtsreform, 1962]. And in the trial itself there was the testimony of a witness for the defense, von dem Bach-Zelewski, who declared: “It was possible to evade a commission by an application for transfer. To be sure, in individual cases, one had to be prepared for a certain disciplinary punishment. A danger to one's life, however, was not at all involved.” Eichmann knew quite well that he was by no means in the classical “difficult position” of a soldier who may “be liable to be shot by a court-martial if he disobeys an order, and to be hanged by a judge and jury if he obeys it”—as Dicey once put it in his famous Law of the Constitution—if only because as a member of the S.S. he had never been subject to a military court but could only have been brought before a Police and S.S. Tribunal. In his last statement to the court, Eichmann admitted that he could have backed out on one pretext or another, and that others had done so. He had always thought such a step was “inadmissible,” and even now did not think it was “admirable”; it would have meant no more than a switch to another well-paying job. The postwar notion of open disobedience was a fairy tale: “Under the circumstances such behavior was impossible. Nobody acted that way.” It was “unthinkable.” Had he been made commander of a death camp, like his good friend Höss, he would have had to commit suicide, since he was incapable of killing. (Höss, incidentally, had committed a murder in his youth. He had assassinated a certain Walter Kadow, the man who had betrayed Leo Schlageter—a nationalist terrorist in the Rhineland whom the Nazis later made into a national hero—to the French Occupation authorities, and a German court had put him in jail for five years. In Auschwitz, of course, Höss did not have to kill.) But it was very unlikely that Eichmann would have been offered this kind of a job, since those who issued the orders “knew full well the limits to which a person can be driven.” No, he had not been in “danger of immediate death,” and since he claimed with great pride that he had always “done his duty,” obeyed all orders as his oath demanded, he had, of course, always done his best to aggravate “the consequences of the offense,” rather than to reduce them. The only “extenuating circumstance” he cited was that he had tried to “avoid unnecessary hardships as much as possible” in carrying out his work, and, quite apart from the question of whether this was true, and also apart from the fact that if it was, it would hardly have been enough to constitute extenuating circumstances in this particular case, the claim was not valid, because “to avoid unnecessary hardships” was among the standard directives he had been given.