The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of Adolf Eichmann
Session 24
(Part 2 of 5)

Holocaust, Adolf Eichmann, Eichmann trial, holocaust, Jewish holocaust
Presiding Judge: Dr. Servatius, do you have any questions to the witness?

Dr. Servatius: I have no questions.

Presiding Judge: Thank you, Mr. Ross, you have completed your evidence.

Attorney General: Does the Court wish me to conclude the Litzmannstadt episode - it is very short - or does the Court wish to hear the application of Dr. Servatius?

Presiding Judge: We shall proceed as we decided previously. Or perhaps you will still need Mr. Riftin [the Polish interpreter] in order to translate the evidence of the next witness? If that is the case, perhaps we could continue now.

Attorney General: I shall still need Mr. Riftin, not for the next witness, but somewhat later - and not in connection with the Litzmannstadt episode.

Presiding Judge: We shall then proceed with the four applications of Dr. Servatius. [To Attorney General.] Have you received a copy of these?

Attorney General: Yes, your Honour.

Presiding Judge: I presume that you, Dr. Servatius, will now recapitulate the content of these applications?

Dr. Servatius: Yes, certainly. I don't suppose that it is necessary here to read out the applications; I shall simply state who are the witnesses whose evidence I wish to request. The first application relates to Professor Dr. Six, who was at one time head of Section II in the Head Office of Reich Security. It is intended that he will give evidence regarding his knowledge of the status and the powers of the Accused.

The second application concerns Advocate Max Marten, who at the time was adviser to the military administration in Salonika-Aegaeas. The witness is to testify to the fact that he came to the Accused in connection with a vital decision and that the Accused informed him that he could not take a decision in the matter, and that he would have to contact his superior authority.

The third witness is Hermann Krumey, who temporarily deputized for the Accused. He is to give evidence of the fact that the Accused had no connection with the murder of 100 children in Lidice, and that he did not have the authority to decide in that matter. He is also to testify that in Hungary the Accused did not act arbitrarily on his own decision and that he did not exceed the scope of his authority. The witness is in prison at Frankfurt-on-Main.

The fourth application relates to Eberhard von Thadden. This witness was the head of a department in the Foreign Office with the same rank as the Accused. He is to testify that the Accused did not possess wide powers in connection with the application is worded in another way. The application is, not to admit documents and to extent they already have been admitted, not to accept them and to delete them, if the witness will not be available. The witness is to give evidence that the operations against the Jews by Hitler, Himmler and Heydrich were undertaken in cooperation with the chief operational authorities of the Army, and that the Accused did not act here under powers of his own.

These are the applications at the present time. Another four to five applications will be submitted. My application concerning the interrogation of witnesses in Austria presents a special difficulty, since I understand that, according to the Austrian law the parties are not allowed to be present at the interrogation.

Presiding Judge: Do you have the address of one of the witnesses, von Thadden?

Dr. Servatius: Yes, certainly. Although I do not have the address with me, it is available in my office in Cologne and I shall inform the Court at an early date.

Attorney General: I agree that each one of the persons mentioned in Defence Counsel's applications has information about the Accused and will be able to testify on matters connected with the charges against him. To my regret I have to inform the Court that in our opinion these four are criminals in terms of the Nazi and Nazi Collaborators (Punishment) Act. Prof. Dr. Six participated in the early operations of the Accused. He was his superior, that is true. But apart from that, he was also the commander of an Einsatzkommando in Soviet Russia and he was involved in the activities of the Einsatzgruppe there. Hence, if he should come to Israel, he will have to be brought to trial. I have no objection - I support this application, that if the Defence needs this witness, he be examined at his place of residence.

Presiding Judge: Presumably you will not give him an entry visa, after what he did?

Attorney General: If he applies - we shall give him an entry visa, we shall arrest him and bring him to trial [laughter in Court].

Presiding Judge: I request silence - we are not discussing laughing matters here.

Attorney General: However, as I assume that none of the witnesses will want to run this risk, I do not regard this as a practical possibility for a solution of the problem before us. From the practical point of view I say that I support the defence application.

Presiding Judge: You do understand that we have to be precise here?

Attorney General: But Defence Counsel requests this examination either here or abroad.

Presiding Judge: For this reason I enquired what your views were.

Attorney General: If the witness wishes to come here - let him come, but I do not regard this as practical for I state in advance that if he should come, he will be arrested and brought to trial, and I do not suppose that he will want to come.

Presiding Judge: What he will want to do, that we can at best be told by Defence Counsel and possibly he, too, will not be able to do so.

Attorney General: At this moment I am not dealing with the formulation of the questions. Neither do I want to argue about this. I assume that each witness will be required to testify only about matters known to him. Question No. 6, for example, to be submitted to Dr. Six "Did the Accused ever act against your instructions?" is very broad and I suppose that it must be restricted to the extent that the matter relates to Dr. Six, or to something similar to that. But I am not dealing now with the content of the questions, but with the issues in general.

Dr. Marten was the military governor of Salonika and in our opinion he is a war criminal. Without his help Wisliceny, the Accused's assistant, would not have been able to accomplish the deportation and the extermination of the Jews of Salonika. We have in our possession the evidence of Dr. Marten at his own trial in Greece, on a charge of being a war criminal. We know what Marten said about Eichmann. I presume that he will be able to give relevant evidence.

Presiding Judge: What was the outcome of the trial of Dr. Marten?

Attorney General: He was sentenced to a short term of imprisonment. He is a lawyer today and has actually entered political life in Germany.

Presiding Judge: Was he sentenced in Greece?

Attorney General: He was sentenced in Greece; the sentence was for a long period of imprisonment - I do not remember at the moment whether it was for 10 or 25 years. He did not serve the full time. He was released early, after a short time, and returned to Germany, and I hear that he is now active in public life.

Hermann Krumey is in prison, according to my information. We certainly will not be able to bring about his release from prison. In our opinion he is a serious war criminal. We have many records of his activity and of his past. What I have said about the two first ones applies to him as well.

About von Thadden I have already spoken. I assume that he, too, will be able to talk about the activities of the Accused and will be able to give relevant evidence. In practice I propose that all four should be heard before a German Court, in accordance with the decision of this Court and in accordance with the procedures for mutual legal aid.

If Defence Counsel prefers that they should be examined by a Notary - as he states - or that they should submit affidavits - I agree to this method as well. I leave the choice to the Defence as to which method is more convenient for leading the evidence of these witnesses, provided that in each instance we shall be able to put some questions to the witnesses at the time they make their statement. We prefer that they give their evidence in a German Court.

Presiding Judge: What do you say about the difficulty arising, according to the contention of Dr. Servatius, from the fact that in a German Court there is no examination of witnesses, as is customary with us?

Attorney General: Dr. Servatius raises two problems and this is one of them. The second one is that the men are likely to incriminate themselves and it is their right to remain silent. In regard to the second argument - they have the same right in an Israel Court. There is no difference in the legal position between Israel and Germany in that respect.

Presiding Judge: That is true.

Attorney General: With regard to the examination of witnesses, it is indeed true that the system in practice here in Israel is to be preferred from the Defence Counsel's point of view for the clarification of the truth, to the system in force over there. But, after all, Defence Counsel from the outset, wanted the trial to be held not here, but in Germany, and if so, he would have been subject to that system for the interrogation of witnesses, and not only of witnesses for the defence. Here at least, he is given the possiblity of cross-examining our witnesses. Secondly, we have to be the cross-examiners and not Defence Counsel. If there is someone who finds himself in a difficulty as a result of this procedure - it is we and not Defence Counsel.

I am ready to reconcile myself to this difficulty and to accept this burden. But I am hopeful that even within the framework of the Continental form of examination - if this is agreed upon by the parties - permission will be granted by the Judge, with mutual consent, to pose a number of questions by means of cross-examination in the same way, as is customary here.

Presiding Judge: Perhaps, indeed, a mixed procedure: first of all a questionnaire will be submitted to the witnesses, with the representatives of the parties having the right to ask additional questions, in order to cover the two possibilities.

Attorney General: I am definitely in agreement with this - I have no objection at all.

Presiding Judge: Now, Mr. Hausner, there is a further request, to strike out two documents that have already been submitted and admitted - the two affidavits of von Thadden in Nuremberg. What is your attitude in regard to this?

Attorney General: If the Court requires an answer - we do not have a procedure of striking out in regard to affidavits. The Court may or may not attach weight to these affidavits. The Court has already warned itself in its decision concerning the importance that it will attach to these declarations. If in the light of everything that will be said, it should become clear that there would be a positive need for the examination of von Thadden and that he has not been examined, the Court will decide whether to take these affidavits into account or not, or to what extent to take account of them. We do not have a procedure of striking out, and I ask that this application should be disregarded. I, for myself, do not object to von Thadden being examined. I agree that he should be one of those to be examined. I agree that the Defence should be given the right of cross- examination, since it was I who submitted the affidavit.

Presiding Judge: Dr. Servatius, I have one question at this stage. What about those two - Huppenkothen and Hoettl? Are the two of them Austrians living in Austria and is it for this reason you made no request in relation to them?

Dr. Servatius: Hoettl is in Austria. Huppenkothen - I do not know exactly whether he is in Austria or in West Germany.

Presiding Judge: In connection with these two, perhaps you will submit an application at a later stage?

Dr. Servatius: Yes, certainly, I have already decided to submit these applications. May I add something? The main application is that the witnesses be heard here before this Court, and I request the Court to take a decision of this main application. The Attorney General's reservation in regard to this are of a political character. The question is, thereafter, whether an entry visa will be granted, and if it is granted - it will be up to the witnesses themselves to decide whether they want to come.

Presiding Judge: I would like to remind you that we said in a previous decision, that if the Attorney General should want to give instructions for the arrest of these witnesses when they come here - the Court will not prevent him from doing so. Is that clear to you, Sir?

Dr. Servatius: Yes.

Presiding Judge: If that is the case, does this repeated request to ascertain whether they will receive entry visas - does it have any relevance in practice? Is it possible to imagine that a witness will want to come when he knows in advance that he will be arrested the moment he sets foot on the soil of Israel?

Dr. Servatius: I presume that the authorities will still consider this question, for in my opinion the Attorney General should not decide on his own whether they should be given entry visas and whether an order of arrest should be issued against them. The appearance of these witnesses here, in my opinion, would make a much better impression.

Presiding Judge: I would like to explain something which should surely be known to you, namely that the Attorney General is the legal adviser to the Government. If he makes such a statement, I presume he speaks in the name of the Government, on behalf of each Government ministry. Is that not so, Mr. Hausner?

Attorney General: Certainly, Your Honour.

Presiding Judge: The situation in this matter is now clear, so it seems to me.

Dr. Servatius: I was not aware of the exact standing of the Attorney General. But if this is a decision of the Government, then it is clear to me that the Court here can not take a decision.

Presiding Judge: In order that it may be completely clear - the Attorney General is not only in charge of matters of prosecution, but he is also - as his name indicates - the legal adviser to the Government. If that is so, it only remains to clarify the exact method of taking evidence abroad: whether by means of questionnaire or by oral examination, or by both methods together. What would you prefer? I turn to you, Dr. Servatius, now. We have heard from the Attorney General that on this matter he places the choice in your hands.

Dr. Servatius: I myself cannot submit an application to the German court for legal aid. This has to be done by an Authority. I request that the Court should do so.

Presiding Judge: I was not referring to this, but whether the application should be for the witnesses to be interrogated by means of a questionnaire or by means of oral examination. In this matter you, Sir, have the choice and we here are ready to accept your preference in this matter. At the same time the Attorney General has said that he prefers an oral examination of the witnesses.

Dr. Servatius: I associate myself with this request of the Attorney General. I believe it is important that the witnesses should be examined orally.

Judge Halevi: I would merely like to add something to Dr. Servatius. The Court has not refused to hear these four witnesses in Jerusalem. However, the conclusion is that the matter is not practical, since it is assumed that the witnesses do not want to run the risk of a criminal trial in Israel. But if one of them should want to take the risk, of course the Court will hear his evidence here, and the legal fate of the witness apart from his evidence will be in accordance with the law. I believe that this is the exact summing-up of the position, although we thought that the issue was not a practical one.

Dr. Servatius: I also cannot imagine that a witness will want to appear here, if he knows that he will be arrested.

Judge Raveh: I should like to ask Dr. Servatius a technical point: I understand that the subject to be passed on to the courts in Germany consists of those points in which each case appears in the first portion of the applications, under the heading "Hauptantrag" (main application). And in such a case I presume that the questionnaire will be superfluous. Or do you prefer that, as subjects for the interrogation, the Court should forward both the subjects appearing in the first portion as well as the questionnaire?

Dr. Servatius: The examining Judge: should have both in his possession, so that he should not be unduly restricted and only permit the main question.

Judge Raveh: In order to leave no doubt, if we take, for example, the application concerning Prof. Six. Do you request that we forward that which is mentioned in part I, numbers 1, 2, 3, 4 and also all the eight questions appearing in the questionnaire - as an example?

Dr. Servatius: Yes, surely.

Presiding Judge: We shall give our decision on these four applications tomorrow morning at 9 o'clock.

Attorney General: I shall now submit a number of documents relating to the Warthegau and to Litzmannstadt. To complete the matter of the 20,000 Jews and the 5,000 gypsies, I wish to ask the Court to admit our document No. 1545, which I hereby submit.

Presiding Judge: This document will be exhibit T/243.

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