Archive/File: people/e/eichmann.adolf/transcripts/Appeal/Appeal-Session-03-02
Last-Modified: 1999/06/15

As far as two of the witnesses, who were described to me by
Counsel for the Defence as being extremely important, are
concerned, I promised that if they came to Jerusalem no harm
would come to them. I stated that Hoettl and Huppenkothen
could come here and would not be put on trial. Despite this,
they also preferred to give their evidence to judges abroad,
in chambers, rather than appear here before the eyes and
ears of the entire world.

President:  Whose witnesses were Hoettl and Huppenkothen?

Attorney General:  Hoettl and Huppenkothen were witnesses
whose affidavits were submitted by us.

President:  I am aware of that, but who called them?

Attorney General:  We submitted their affidavits. The
Defence insisted on their being cross-examined. We stated
that we would guarantee that they could come and be
cross_examined here without any harm coming to them.

Eichmann's name was not mentioned for the first time in this
trial. In the major Nuremberg trial, in the trials of the
other war criminals, in the Doctors' trial, in the
concentration camp trial, in the Einsatzgruppen trial, in
the Foreign Ministry trial, he was referred to, his name
came up. The judgment of the Nuremberg International
Military Tribunal makes a specific finding, to the effect
that Adolf Eichmann is guilty of the destruction of six
million Jews, on a special assignment on behalf of the
Fuehrer. He says that everyone wanted to shift the blame
from themselves and to use him as a scapegoat. Why him of
all people? If they were looking for a victim who could not
refute false claims, his superior, Mueller, was a far more
convenient target, and a far more obvious one for that
purpose. He, too, disappeared like Eichmann, and in
addition, he was the head of the Gestapo and in any case a
closer, more likely figure as a target for unfounded
charges, if that was simply what was intended by those who
gave whatever testimony they gave about the Appellant. But
in all the trials which I have mentioned, and in the trials
of Hoess, Wisliceny, Endre and Baky, it was precisely the
dark figure of Eichmann which kept cropping up, as the
person responsible for the whole process of extermination.

Justice Agranat:  Why are you making this point, Mr.
Attorney General?

Attorney General:  We are told "all these people are looking
now for a scapegoat, in order to shift the blame on to
someone else, they're shifting it on to Eichmann." What I am
saying is, it did not start now, it did not start with these
witnesses, with Hoettl and Winkelmann, Veesenmayer and Six,
who wish to conceal their own role, although they are not
guilty, but they are ashamed and embarrassed, and they are
shifting the guilt to Eichmann. This did not start now. It
was already there in Nuremberg in 1945, and it was in the
trials which took place beween 1945 and 1961. And they
always mentioned him. He said, "they always accused me
falsely, because I disappeared." What I am saying is this:
It is not true that they were looking for a convenient
victim on whom to shift guilt; Mueller was more suitable for
that purpose. This is an indication that what was said about
him in those trials, what the witnesses testified about him
there, was in fact the truth. They were not looking for a
scapegoat for themselves, but were speaking the simple
truth.

The Accused says that excessive use was made of the
provisions of Section 15 of the Nazis and Nazi Collaborators
(Punishment) Law, when various items of evidence were
submitted. If the Court examines the decisions of the
District Court in this connection, it will see the
meticulous and punctilious way in which the Court examined
every one of our requests for the admission of evidence and
for an exception to be made under Section 15. In Gruenwald
vs. the Attorney General, a rule was laid down in Justice
Agranat's judgment that "there is no way in which events
which took place at that time can be proved other than by
applying that Section." In the Nuremberg Charter also, which
laid down the judicial procedures of the International
Military Tribunal, at a time much closer to the events, when
all of the documents were before them, and when war
criminals had not yet been executed and they could have been
brought before the court as witnesses, when they could still
have been brought, the same rule was laid down as we have in
Section 15.

Justice Silberg:  Did the Court adopt a position on the
significance and scope of Section 15?

Attorney General:  The Court, as it was required to do,
discussed every single application that we made and took a
specific decision on the merits in each case.

Justice Silberg:  Whether this was necessary in the
interests of justice?

Attorney General:  Whether it was necessary and whether it
had any probative value.

Justice Silberg:  Mr. Attorney General, you have before you
the printed version of the Judgment, and on page 171 it
says: "The Attorney General expressed the opinion that the
need for corroboration of the evidence of an accomplice was
not dispensed with by the provisions of Section 15 of the
Nazis and Nazi Collaborators (Punishment) Law." Are you
arguing, Mr. Attorney General, that this was or was not
dispensed with?

Attorney General:  It was my argument that if the Court
wishes to base itself on the affidavits of Wisliceny or
Hoess, and treat these as their testimony, then I said that
no use should be made of Section 15, that then corroboration
should be looked for and where no such corroboration is
available, no finding should be made to the detriment of the
Accused.

Justice Silberg:  What was your basic position, Mr. Attorney
General, in respect of Section 15, as to whether there is a
need for corroboration of the evidence of an accomplice? It
says here: "The Attorney General expressed the opinion that
the need for corroboration was not dispensed with." If that
is the case, then what follows does not make sense.

Attorney General:  There is the problem of the admissibility
of evidence and then there is the problem of a finding based
on that evidence. Section 15 offered us a way of first
admitting such evidence. And from time to time there was a
discussion on this point. I shall make use of Section 15
only for the purpose of admissibility of evidence.

Justice Agranat:  You are saying that if an accomplice is
involved, corroboration is required under Section 15. The
Court did not decide whether this is the law or not, but
perhaps, in fact, said that corroboration of the testimony
of an accomplice should be required and without such
corroboration it would not rely on the testimony.

Attorney General:  I did not apply for a finding to be made
pursuant to Section 15 on such evidence, unless it was
corroborated by another source. The Court said that it would
not decide whether this was the law or not, but in practice
this is how it proceeded.

Justice Silberg:  One can deduce the opposite from the
context: "We see no need to decide on this question of
principle.  We shall only say that...Section 15 permits us
to rule on this matter or not to do so." You are of course
making the same point today?

Attorney General:  I maintain my position, and I am not
asking for any findings to be made on the basis of the
uncorroborated evidence of accomplices. I did not ask for
this exception to be made.

A further complaint by the Appellant is that he became
confused from time to time, that he was unable to
reconstruct events in his own mind, and it is obvious that
from time to time errors occurred.

I would direct the Court's attention to the fact that in
1957 Adolf Eichmann had a general rehearsal of [relating]
what he did during the Second World War, in his talks with
Sassen. He himself revealed this in his Statement to the
police, before Less started asking questions. The Court will
remember that the first part contains Eichmann's unprompted
remarks, and on page 397 of T/37 Eichmann says the
following: "And I had another conversation with Mildner,
about three years ago, `und habe diese zerpflueckt in
Anwesenheit von einem gewissen Herrn Sassen, der
akkreditierter, wie sagt man hier, `Journalist' in der
Regierung...war und haben das zerpflueckt und zergliedert'"
(and I have detailed this matter, in the presence of a
certain Mr. Sassen who was, how do you call it there, a
`journalist' accredited by the government and we have
discussed it in detail and dissected it).

In other words: We examined and went over and investigated
the material all over again with the journalist Sassen and
in Mildner's presence. In Session 91, Vol. IV, page 1605,
Eichmann says to me, in reply to my questions, that he held
the conversations with Sassen in order to get down to the
real truth:

     "The conversations which I had with Sassen were not
     designed to remove the blemish from me, because this
     kind of thing a single individual cannot achieve.
     Rather, what I wanted to achieve...was to tell the
     truth of how things happened.
     
     "Question  And you told him the truth?
     
     "Answer  I told him the truth, but it did not find
     expression."

This was a general rehearsal of everything that had
happened. It took four months. His remarks were recorded and
typed up, and then the transcripts were given to him and he
went over them, as he testified, in Argentina. There are all
sorts of remarks in the Sassen Document, but the only ones
on which I can rely are those about which the Accused was
examined in the District Court, because other parts of that
document were excluded by the majority opinion, as opposed
to that of the minority. In order not to drag things out, I
refrained from making a counter-appeal in respect of this
decision. But perhaps in the Sassen Document and in the
Accused's awareness that this document was likely to become
known - and did indeed become known, because he was also
questioned about the articles in Life  which were published
in the wake of the document - perhaps this is a partial
explanation of the question which the judges of the District
Court did not want to go into, i.e. why did the Accused
despite everything reveal things which were not known from
other sources? It is a fact that Sassen read to him various
documents, books, and he also said that Sassen read to him
from Reitlinger and Poliakov; but he also read to him
documents whose source is unknown to us, such as Globocnik's
orders, the orders he brought to Globocnik for the
extermination of Jews, two or three times. We have not so
far discovered the source of these documents, which Sassen
read out to him and on which he asked for his reaction.

Justice Silberg:  Apart from the two documents in which he
approved, as he puts it, previous killings, were there other
documents? Did the Accused bring Globocnik two or three
authorizations from Heydrich?

Attorney General:  He does not remember who signed them,
whether it was Heydrich or Mueller.

Justice Silberg:  He has admitted this. He claims that this
was authorization for previous killings. What is not known -
which documents?

Attorney General:  We did not know anything about this whole
business of bringing these orders to Globocnik. This is not
mentioned in the history books about events during the
Holocaust. The Accused says: I confessed unhesitatingly to
Less, and if I confessed to these things and did not confess
to others, you must believe that I was telling the truth.
Because how could you have proved my part in this affair,
when you did not know about it? The Court says the
following: We are not going to try and solve the
psychological riddle of why he confessed to certain things
and denied certain others. There is no need to try and
clarify this question. I wish to make a certain contribution
to an attempt to solve this riddle, although it is really
not important.

The Accused did not know what parts of the Sassen Document
had been published and which parts had not been published
when he was questioned by Bureau 06 in Israel. But he did
know that the Globocnik matter was in there. And so the fact
that he voluntarily, as it were, mentioned things that we
could not have proved to him from other sources - for this
there is an utterly credible explanation, and it does not
necessarily derive from the desire to pursue truth and
unburden his conscience. This is a time-honoured ploy on the
part of most war criminals, both at the International
Military Tribunal and at other trials too, to confess to a
small part and to deny the rest and to argue: You see, I
have freely confessed these things out of my own mouth, so
you must also believe that my denial is the truth, just as
my admission was the truth.

Let us now examine the evidence and the factual material
that the Appellant disputes. In doing this I shall follow
closely the documents and other evidence.

President:  In this connection, we also need your reaction
to the witnesses whom he would like to bring.

Attorney General:  I shall do this as part of my argument.

President:  Dr. Servatius did not raise, or rather did not
deal with, the following legal question: Under our law, what
authority does an appellate court have to permit the
bringing of new witnesses?

Attorney General:  I shall direct the Court to a number of
authorities. Would the Court rather I did that at this
stage?

President:  As you prefer.

Attorney General:  When I reach the testimony which he
wanted to take, I shall direct the Court to the authorities
as part of my argument.

I should like now to examine the evidence and the factual
material, and in particular those items which the Appellant
disputes orally. As I have said, I shall do this while
following closely the documents and other evidence, rather
than by making generalizations and overall arguments. This
is because Eichmann's actions are reflected by the
evidential material and not by denials in idle words.

The theories put forward orally were confronted by the main
body of evidence by which the Court guided itself in making
its findings. Many of the arguments in the appeal refer time
and again to Eichmann's position in the Third Reich, with a
clear tendency to play down his importance and worth in
general in regard to the acts of extermination. It is of
course important to determine Eichmann's position, his
overall position in the Final Solution, when evaluating his
guilt. I shall therefore try, in general terms, to outline
the main evidence submitted to the Court in order to assess
this position. I shall start with the Defence testimony,
with the documents that were submitted by Counsel for the
Defence and the witnesses called by him in this connection.

Mildner was the Commander of Security Police in Vienna.
Eichmann confirmed that they were on friendly terms, and I
read to you the quotation from his statement, showing that
they were also in touch in 1957 in Argentina. He made two
affidavits to the American prosecutor's office, one dated 23
June 1945, and the second on 16 November 1945, both of them
being in exhibit N/97.

Justice Silberg:  Are you talking about Mildner as a
witness?

Attorney General:  I am basing myself on a Defence document.
After Mildner's general description of the actions involving
the extermination and expulsion of the Jews from all of the
countries conquered by the Germans, including occupied
Poland, the extermination process in Auschwitz, the camps in
the Lublin region, the implementation of extermination in
accordance with the orders of Himmler and the head of the
RSHA, from Himmler via Kaltenbrunner and Eichmann, he makes
the following comments in defining Eichmann's position - and
I am basing myself on the November 1945 document: SS
Obersturmbannfuehrer Eichmann was the Referent  of
Reichsfuehrer Himmler for the Head of the Security Police
and the SD, SS Gruppenfuehrer Kaltenbrunner and of the Head
of Department IV in all Jewish matters. He was the
representative of Reichsfuehrer-SS Himmler for all the
deportations to the camps and for contacts with foreign
countries in respect of the evacuation of the Jews, and the
liaison with all the Higher SS and Police Leaders on matters
relating to the Jewish Question.

Justice Silberg:  I cannot follow what you are saying, Mr.
Attorney General. Are you referring to document T/97?

Attorney General:  Defence document N/97. There are two
affidavits by Mildner. Just now I read from the November
document. I am reading the penultimate paragraph on the last
page but one. I read out a translation of the passage from
German.

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