The judges' way out of all these difficulties was through compromise. The judgment falls into two parts, and the by far larger part consists of a rewriting of the prosecution's case. The judges indicated their fundamentally different approach by starting with Germany and ending with the East, for this meant that they intended to concentrate on what had been done instead of on what the Jews had suffered. In an obvious rebuff to the prosecution, they said explicitly that sufferings on so gigantic a scale were “beyond human understanding,” a matter for “great authors and poets,” and did not belong in a courtroom, whereas the deeds and motives that had caused them were neither beyond understanding nor beyond judgment. They even went so far as to state that they would base their findings upon their own presentation, and, indeed, they would have been lost if they had not gone to the enormous amount of work that this implied. They got a firm grasp on the intricate bureaucratic setup of the Nazi machinery of destruction, so that the position of the accused could be understood. In contrast to the introductory speech of Mr. Hausner, which has already been published as a book, the judgment can be studied with profit by those with a historical interest in this period. But the judgment, so pleasantly devoid of cheap oratory, would have destroyed the case for the prosecution altogether if the judges had not found reason to charge Eichmann with some responsibility for crimes in the East, in addition to the main crime, to which he had confessed, namely, that he had shipped people to their death in full awareness of what he was doing.
Four points were chiefly in dispute. There was, first, the question of Eichmann's participation in the mass slaughter carried out in the East by the Einsatzgruppen, which had been set up by Heydrich at a meeting, held in March, 1941, at which Eichmann was present. However, since the commanders of the Einsatzgruppen were members of the intellectual élite of the S.S., while their troops were either criminals or ordinary soldiers drafted for punitive duty—nobody could volunteer—Eichmann was connected with this important phase of the Final Solution only in that he received the reports of the killers, which he then had to summarize for his superiors. These reports, though “top secret,” were mimeographed and went to between fifty and seventy other offices in the Reich, in each of which there sat, of course, some Oberregierungsrat who summarized them for the higher-ups. There was, in addition to this, the testimony of Justice Musmanno, who claimed that Walter Schellenberg, who had drawn up the draft agreement between Heydrich and General Walter von Brauchitsch, of the military command, specifying that the Einsatzgruppen were to enjoy full freedom in “the execution of their plans as regards the civil population,” that is, in the killing of civilians, had told him in a conversation at Nuremberg that Eichmann had “controlled these operations” and had even “personally supervised” them. The judges “for reasons of caution” were unwilling to rely on an uncorroborated statement of Schellenberg's, and threw out this evidence. Schellenberg must have had a remarkably low opinion of the Nuremberg judges and their ability to find their way through the labyrinthine administrative structure of the Third Reich. Hence, all that was left was evidence that Eichmann was well informed of what was going on in the East, which had never been in dispute, and the judgment, surprisingly, concluded that this evidence was sufficient to constitute proof of actual participation.
The second point, dealing with the deportation of Jews from Polish ghettos to the nearby killing centers, had more to recommend it. It was indeed “logical” to assume that the transportation expert would have been active in the territory under the General Government. However, we know from many other sources that the Higher S.S. and Police Leaders were in charge of transportation for this whole area—to the great grief of Governor General Hans Frank, who in his diary complained endlessly about interference in this matter without ever mentioning Eichmann's name. Franz Novak, Eichmann's transportation officer, testifying for the defense, corroborated Eichmann's version: occasionally, of course, they had had to negotiate with the manager of the Ostbahn, the Eastern Railways, because shipments from the western parts of Europe had to be coordinated with local operations. (Of these transactions, Wisliceny had given a good account at Nuremberg. Novak used to contact the Ministry of Transport, which, in turn, had to obtain clearance from the Army if the trains entered a theater of war. The Army could veto transports. What Wisliceny did not tell, and what is perhaps more interesting, is that the Army used its right of veto only in the initial years, when German troops were on the offensive; in 1944, when the deportations from Hungary clogged the lines of retreat for whole German armies in desperate flight, no vetoes were forthcoming.) But when, for instance, the Warsaw ghetto was evacuated in 1942, at the rate of five thousand people a day, Himmler himself conducted the negotiations with the railway authorities, and Eichmann and his outfit had nothing whatever to do with them. The judgment finally fell back on testimony given by a witness at the Höss trial that some Jews from the General Government area had arrived in Auschwitz together with Jews from Bialystok, a Polish city that had been incorporated into the German province of East Prussia, and hence fell within Eichmann's jurisdiction. Yet even in the Warthegau, which was Reich territory, it was not the R.S.H.A. but Gauleiter Greiser who was in charge of extermination and deportation. And although in January, 1944, Eichmann visited the Lódz ghetto—the largest in the East and the last to be liquidated—again it was Himmler himself who, a month later, came to see Greiser and ordered the liquidation of Lódz. Unless one accepted the prosecution's preposterous claim that Eichmann had been able to inspire Himmler's orders, the mere fact that Eichmann shipped Jews to Auschwitz could not possibly prove that all Jews who arrived there had been shipped by him. In view of Eichmann's strenuous denials and the utter lack of corroborative evidence, the conclusions of the judgment on this point appeared, unhappily, to constitute a case of in dubio contra reum.
The third point to be considered was Eichmann's liability for what went on in the extermination camps, in which, according to the prosecution, he had enjoyed great authority. It spoke for the high degree of independence and fairness of the judges that they threw out all the accumulated testimony of the witnesses on these matters. Their argument here was foolproof and showed their true understanding of the whole situation. They started by explaining that there had existed two categories of Jews in the camps, the so-called “transport Jews” (Transportjuden), who made up the bulk of the population and who had never committed an offense, even in the eyes of the Nazis, and the Jews “in protective custody” (Schutzhaftjuden), who had been sent to German concentration camps for some transgression and who, under the totalitarian principle of directing the full terror of the regime against the “innocents,” were considerably better off than the others, even when they were shipped to the East in order to make the concentration camps in the Reich judenrein. (In the words of Mrs. Raja Kagan, an excellent witness on Auschwitz, it was “the great paradox of Auschwitz. Those caught committing a criminal offense were treated better than the others.” They were not subject to the selection and, as a rule, they survived.) Eichmann had nothing to do with Schutzhaftjuden; but Transportjuden, his speciality, were, by definition, condemned to death, except for the twenty-five per cent of especially strong individuals, who might be selected for labor in some camps. In the version presented by the judgment, however, that question was no longer at issue. Eichmann knew, of course, that the overwhelming majority of his victims were condemned to death; but since the selection for labor was made by the S.S. physicians on the spot, and since the lists of deportees were usually made up by the Jewish Councils in the home countries or by the Order Police, but never by Eichmann or his men, the truth was that he had no authority to say who would die and who would live; he could not even know. The question was whether Eichmann had lied when he said: “I never killed a Jew or, for that matter, I never killed a non-Jew…. I never gave an order to kill a Jew nor an order to kill a non-Jew.” The prosecution, unable to understand a mass murderer who had never killed (and who in this particular instance probably did not even have the guts to kill), was constantly trying to prove individual murder.