The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of Adolf Eichmann
Session 16
(Part 4 of 6)

Holocaust, Adolf Eichmann, Eichmann trial, holocaust, Jewish holocaust
I ask the Court to permit me to submit this declaration on pages 817-818. Here the Court will find the decision in the Pohl case about an affidavit, the affidavit of a man who was not available. I drew the Court's attention to the same quotation in my previous depositions on page 841.

Presiding Judge: Was this again Hoess?

Attorney General: Yes, Hoess. On the same page the Presiding Judge: says:

"The Tribunal has ruled heretofore that these affidavits, under the basic authority, are admissible, and that would be true whether, as the Tribunal has ruled, whether or not the affidavits are available for cross-examination; but in the interest of giving the fullest disclosure and giving the defense the advantage of that, if they are reasonably available, then the Tribunal also rules that they should be produced in Court."
Presiding Judge: Where was this, in West Germany?

Attorney General: According to what we know from the press - yes. In the same volume on page 752 the question arose of the affidavit of George Messersmith in Mexico City. The decision was:

"The Tribunal has considered the objection which has been raised. In view of the powers which the Tribunal has under Article 19 of the Charter, which provides that the Tribunal shall not be bound by technical rules of evidence, but shall adopt and apply to the greatest possible extent expeditions and no-technical procedure and shall admit any evidence which it deems to have probative value, the Tribunal holds that affidavits can be presented, and that in the present case it is a proper course."
Presiding Judge: Was Messersmith the American ambassador to Mexico?

Attorney General: I think so. Whatever the reason for that may be, these are documents concerning whose verification there is no doubt. They are part of the prehistory of which Mr. Bar-Shalom gave evidence. Their authenticity is not open to doubt. At any rate I cannot bring Hoettl here. His story is important, as the Court will notice, for the Accused in his statement under interrogation tried to give explanations which differ from what Wisliceny maintains that he heard from Eichmann regarding the number of Jews that perished in the great Holocaust. Consequently the evidence of a man who says that he spoke with the Accused on the same subject, and relates what the Accused said to him - to Hoettl - on that occasion, is relevant to the issue.

Presiding Judge: Regarding the number of Jews who perished?

Attorney General: Regarding the number of Jews. This is important, it is relevant to the matter, and I ask you to admit it as evidence. There are two documents: One is our No. 7, and the other is our No. 334.

Judge Raveh: What is the date of the affidavits?

Attorney General: One is 5 November 1945 - No. 334, the other is 26 November 1945 - our No. 7.

Judge Halevi: Were they both shown to the Accused in his interrogation?

Attorney General: I am not sure of that.

Judge Halevi: Can you check it?

Attorney General: I am certain that they were not presented as exhibits. It is possible that they were mentioned, but I am not sure.

Judge Halevi: Was he questioned in regard to their contents?

Attorney General: He was questioned in regard to the number - without any doubt.

Judge Halevi: Not in regard to the words of Hoettl?

Attorney General: I do not think so.

Presiding Judge: Did Hoettl give evidence at Nuremberg before a court?

Attorney General: Not to my knowledge. Only his affidavit was submitted, but no use was made of the right to call upon him to give evidence. The right was given but it was not exercised.

I merely want to conclude my remarks by saying that what was said by the Main International Tribunal was based upon the affidavits of Hoettl on this subject. This was the source on which the Presiding Judge of the Military Tribunal based his finding regarding the six million. At any rate it was one of the sources.

Presiding Judge: It is difficult to be certain on this subject. There are 24 volumes of evidence.

Attorney General: Permit me to say - one of the sources - for they are consistent with what was said by Hoettl, and they connect this, as Hoettl does, with the name Adolf Eichmann.

Dr. Servatius: I object to the submission of the two affidavits. The witness is alive and can come here. He is living in Austria, he is an Austrian citizen and he is therefore not a citizen of the German Federal Republic. He lives in Bad Aussee in Austria.

Judge Halevi: Do you mean to say that the Prosecution must call him as a witness for the Prosecution or do you want to say that the Defence wishes to call him as a witness for the Defence?

Dr. Servatius: It seems that it is the obligation of the Prosecution to bring the witness so that he can be cross- examined by me. After he gave evidence at Nuremberg, he was able to prove that he was a fighter in the resistance movement; there were also proceedings against him and he was acquitted. Therefore the witness can appear here. I do not know if there is an agreement of judicial aid between Austria and Israel. Generally speaking in agreements of this kind there are provisions whereby the appearance of witnesses must be rendered possible. The Attorney General says that he does not object to this witness coming here, but he did not say whether he would give him free entry and protection when entering. I can imagine that the witness would be worried whether it would be safe for him to appear here without such an assurance.

Presiding Judge: On a point of information, Mr. Hausner, is there an agreement of mutual judicial aid with Austria?

Attorney General: Not in the sense in which Dr. Servatius spoke.

Presiding Judge: But does any agreement exist?

Attorney General: Yes, there are agreements on judicial aid.

Presiding Judge: Is there any Convention that has been published?

Attorney General: No, Your Honour, not that I know of. But we have arrangements by which we extend judicial aid to Austria and receive judicial aid from Austria.

Presiding Judge: On the basis of which law? Is there no law?

Attorney General: Not on the basis of a law.

Presiding Judge: Not especially in relation to Austria?

Attorney General: There are definitely conventions for judicial aid.

Presiding Judge: Apart from this I think that in the Mandatory Law of Extradition there was a section, No. 22, which dealt with this and the Israel Law succeeded it.

Attorney General: If I understand Defence Counsel, he was referring to some kind of immunity for witnesses. This certainly does not exist in any agreement.

Presiding Judge: But first of all we would want to know what does exist in regard to Austria.

Attorney General: I am prepared to investigate this and advise the Court.

Presiding Judge: Are there arrangements generally for the taking of evidence locally?

Attorney General: Yes, locally.

Presiding Judge: This was also in the Mandatory Law, Section 22. Dr. Servatius, at the moment I am speaking for myself, if we should regard it as proper to follow this course, would you be able to obtain from Mr. Hoettl an additional affidavit on behalf of the Defence?

Dr. Servatius: I indeed believe that the witness will be prepared to make such a declaration. But I presume that its value as evidence will be much less than his evidence here before the Court.

Presiding Judge: This is undoubtedly so.

Dr. Servatius: I have to point out further that as far as I know there exists an agreement for judicial aid between Israel and the Federal German Republic, and in it, in section 34 or 43, there is a provision by which any witness appearing before a court here must be given free entry and passage, and immunity for up to eight days after his examination.

Judge Halevi: I should like to draw attention to the fact that according to later judgments, in later trials, after Nuremberg it seems to me, the rule was laid down that not every member of a criminal organization shall be accused or found guilty even if he were accused of being a member of a criminal organization, except in the case of certain exceptions - that is to say, important members who were aware of all the criminal objectives of their organizations and who, after they had received full information, did not cease to be members of these criminal organizations. Thus it is not sufficient to say that this potential witness was a member of the SS in order that he should be found guilty of membership of a criminal organization in terms of the Nuremberg judgment.

Attorney General: This is what was laid down in the Nuremberg judgment of the International Military Tribunal, that volunteer membership and remaining voluntarily after knowing what criminal purposes are served by the organization - these constitute a crime on the part of any individual person and in each particular case - this was what held in the I.M.T. itself. To what extent this will apply to Dr. Hoettl - I am not prepared to commit myself at the present time. When Dr. Hoettl makes an application for an entry visa, the matter will be considered by us and then we shall decide. We have not gone into the question of Dr. Hoettl's past adequately enough to enable me to declare here whether he committed an offence in terms of law or not. When he puts in his applications, we shall consider it and take a decision.

Dr. Servatius: On the question of the significance of belonging to a criminal organization there was a protracted argument in the International Military Tribunal. I myself had the privilege of taking up a position there according to which this was not a judicial decision but a legislative act. The French Judge, Donadiieu de Vabres, and the Court agreed with this. Therefore, proof of personal guilt is required, and membership by itself does not suffice.

Presiding Judge: I believe that in our Law this is somewhat different. We are, possibly, getting a little away from the subject under discussion at present. I only want to draw your attention to section 3 of our Law, the Law of 5710- 1950. This perhaps alters the situation.

Dr. Servatius: May I be allowed to say a few words about the document itself. Section 19 of the London Charter provides for a deviation from the principles of the normal procedure, and it was intended to make the conduct of that enormous trial possible and to eliminate unimportant items for the sake of accelerating the process. In Kaltenbrunner's case there was so much abundant material that it was agreed, and even the defence agreed, not to raise other matters.

Presiding Judge: We shall defer the handing down of our decision on this matter until tomorrow morning, at 9 o'clock. We presume that you have concluded your arguments on this question, Mr. Hausner.

Attorney General: On the two affidavits - yes. But we have other material.

Presiding Judge: But I would request, Mr. Hausner, that this afternoon you should submit to us, in the course of the session, all the material available, all the legislative material...

Attorney General: Diplomatic as well, since there are exchanges of letters, since most of it is based upon exchanges of letters.

Presiding Judge: Diplomatic as well. The material on the question of arrangements of judical aid between Israel and Austria, and also between Israel and West Germany.

Attorney General: If the Court will permit me, I owe the Court a reply in connection with the picture and I am able to give this reply.

Presiding Judge: After the adjournment. We shall now have a break for twenty minutes.

Presiding Judge: Mr. Hausner, you wanted to say something before the adjournment about the picture.

Attorney General: I wanted to say that Bureau 06 did in fact photograph this picture from a German weekly. It is not possible to determine with certainty which of the two: Der Stern or Der Spiegel. The picture appeared in one of these two weeklies. The original was not retained after the Accused's interrogation. We are also not able to refute the Accused's contention that he did not sign below the picture, but that possibly he signed on the back of the picture with the same signature that appears here under his likeness: "SS Obersturmbannfuehrer Adolf Eichmann A.D."

At this stage I also want to bring to the notice of the Court, if I may, a letter from Professor Salo Baron, who discovered two inaccuracies in the record. He asked me to read this letter to the Court, since he has left the country. He writes to the Court as follows:

"Re Criminal Case 40/61, Attorney General versus Adolf Eichmann. The date is 25 April 1961. I saw today the protocol of my evidence at yesterday's sitting of the Court and noticed that two errors crept into the remarks recorded as coming from me.

(a) The number of charitable loan funds in Poland was 826 and not as recorded in the protocol..."

Presiding Judge: What is recorded in the protocol?

Attorney General: 286. I think the figures were reversed.

(b) Yugoslavia, and included in it Serbia and Croatia, were liberated by the army of Tito and not by the army of Michaelovich or other armies, as it is recorded erroneously in the protocol.
Presiding Judge: Was "Michaelovich" mentioned in the protocol?

Attorney General: Yes.

"...In view of the fact that I am about to leave the country tomorrow morning, I shall not, to my regret, be able to come to Court personally in order to put the matter right and I shall be grateful to the Court if it would kindly insert these alterations."
Seeing that there is nothing here which can in any way be to the disadvantage of the Accused, and the issue arises only for the sake of putting the record right, I ask the Court to accept this letter and give instructions for the alterations as requested.

Presiding Judge: I think there is no need to accept the letter. Dr. Servatius, you have nothing to remark on this? Mr. Hausner, you have read the contents of the letter into the record and the record will be corrected accordingly.

Dr. Servatius: I agree.

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