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Last-Modified: 1999/05/30

Session No. 17

10th Iyar 5721 (26 April 1961)

Presiding Judge: I declare the seventeenth Session of the
trial open. Dr. Servatius, have you examined this document
in the meanwhile?

Dr. Servatius:  I have examined the document and it
corresponds completely to the text.

Presiding Judge: Do you have anything further to observe
regarding the application to submit this document?

Dr. Servatius:  No. I have already said what has to be said.

Presiding Judge: I am not sure whether this applies to this
document as well. At any rate you repeat your arguments in
regard to similar documents.

Dr. Servatius:  I repeat the contents of my earlier remarks.

Presiding Judge: Decision No. 10

 We approve the submission of this document (extracts from
the memoirs of Rudolf Hoeess) for the same reasons as given
in our Decision No. 7.* {*Court Session No. 16, 26 April

Presiding Judge: This document is marked T/90.

Attorney General: I request the Court's permission to read a
number of passages from T/90 - the opening passages only.

     "In the summer of 1941 - at the moment I cannot state
     the exact date - I was suddenly ordered to appear
     before the Reichsfuehrer in Berlin, and this was done
     directly through his adjutant. Contrary to his usual
     practice he confided to me - in the absence of the
     adjutant - the following words:
     'The Fuehrer has ordered the final solution of the
     Jewish problem; we - the SS - must carry out this
     'The extermination camps existing in the East are
     incapable of implementing the planned, extensive
     operations. Consequently I have made Auschwitz my
     objective for this purpose, firstly because of the
     convenient transportation situation and secondly
     because it would be easy to close off and camouflage
     the area which would be designated there for this
     purpose. Originally I selected a senior SS officer for
     this mission, but in order to avoid any problems of
     authority at the start, this appointment has been
     cancelled and you will now have to fulfill this
     undertaking. This is a difficult and ruthless task,
     demanding that the person  devote himself completely,
     without taking account of difficulties that are likely
     to arise.
     'You will hear more precise details from SS
     Sturmbannfuehrer Eichmann of the Reich Security Main
     Office who will come to you very shortly.
     'This matter will be brought by me to the knowledge of
     the relevant units in due course. In regard to this
     order you will have to maintain the strictest silence,
     even as far as your superiors are concerned. After your
     talk with Eichmann send me the plans of the proposed
     'The Jews are the everlasting enemies of the German
     people and must be exterminated. Now, during the War,
     all the Jews we can reach must be destroyed without
     exception. If we do not succeed in destroying the
     biological foundation of Judaism now, then, one of
     these days the Jews will destroy the German people.'
     "After receiving this grave order I immediately
     returned to Auschwitz without reporting to the unit to
     which I was attached in Oranienburg.
     "After a short while Eichmann came to me at Auschwitz.
     He confidentially revealed to me the plans which were
     in operation for every country. I can no longer state
     their exact order. First to be considered, as far as
     Auschwitz was concerned, were Eastern Upper Silesia and
     parts of the generalgouvernement which adjoined it.
     Simultaneously and following on thereafter, dependent
     on the situation, would come the Jews from Germany and
     Czechoslovakia. Closely after this - the West, France,
     Belgium and Holland. He even mentioned to me the
     numbers of the anticipated transports but I am no
     longer able to quote them. We also spoke about carrying
     out the extermination. It was said that only gas could
     be considered since the disposal of the expected masses
     by shooting was simply an impossibility and it also
     involved too great a burden on the SS personnel who
     were to be entrusted with the implementation - in view
     of the women and children.
     "Eichmann gave me an explanation of extermination by
     means of emissions of gas from truck engines, as had
     been carried out until then in the East. But such a
     method, according to him, could not be applied to the
     mass transports expected at Auschwitz. Killing by means
     of carbon-monoxide gas through showers in the wash-
     rooms, in the same way as the destruction of the
     mentally ill was accomplished in several places in the
     Reich, necessitated too many constructions, and the
     procurement of the gas needed for large masses also
     presented a serious problem. Consequently we did not
     reach any decision on this question. Eichmann wanted to
     find out about a gas which was easy to secure and which
     did not require any special installations, and advise
     me thereafter. We proceeded to the area in order to
     determine a suitable site. We considered that a farming
     estate in the north-eastern corner of what was
     subsequently a portion of the Birkenau III structure
     would be suitable. It was remote, protected against
     hidden surveillance by areas of forest and surrounding
     barbed-wire fences, and was not far away from the
     railway line. It would be necessary to store the bodies
     in deep pits dug in the adjacent expanse of grass. At
     that time we had not yet thought of burning them. We
     thought that by means of a suitable gas it would be
     possible to put to death about 800 persons at one and
     the same time in the buildings located there, after
     they had been hermetically sealed against gases. This
     indeed corresponded to the subsequent intake."

Suffice it to read up to this point at the present stage. We
shall return to Exhibit 90 and draw the Court's attention to
other passages therein.

I ask the Court to allow me this opportunity, while I am on
my feet, to comply with its request on the legal issue which
it raised this morning. The legal aid given by the State of
Israel both to Germany and to Austria is within the
framework of the Law of Legal Aid to Foreign States 5717
(1956) and the Regulations promulgated under the terms of
that law. The Court will find the Regulations in the Law
Gazette of 5720 (1954), on p. 396. With regard to Germany I
have in my possession the collection by Dr. Grutzner
"Internationaler Rechtshilfsverkehr in Strafsachen" which
deals with a mutual arrangement with Germany on extending
legal aid.

Presiding Judge: In other words, does this law speak only of
the aid that we give to Germany?

Attorney General: Our law speaks of the aid that we give to

Presiding Judge: Does it specify Germany?

Attorney General: No, it speaks generally about foreign
countries. But in regard to the Federal Republic, there is
an exchange of letters in this matter. The collection of Dr.
Grutzner talks about instances of legal aid between Germany
and foreign countries. In the chapter "Israel," chapter II
paragraph I 8, there is an exchange of letters between the
German Foreign Ministry and the Israeli Mission in Cologne.
In this letter dated 7 February 1957, Dr. A. Blum, Director
of the Legal Department at the Israeli Mission in Cologne
notified the German Ministry of Justice that "the Government
of Israel has decided to inform the Government of the
Federal Republic that the Courts in Israel will extend the
same legal aid to the Courts of the Federal Republic as the
Courts of the Federal Republic would extend to the Courts of

The letter continues:"It is to be assumed that in this way
it has been possible to meet the requirements for
reciprocity within the meaning of paragraph 41 of the German
Extradition Law. This is paragraph 41 Chapter I A1. And it
deals with the reciprocity demanded by German law. Evidently
Counsel for the Defence in his arguments this morning
referred to paragraph 43 of the same law which is to be
found in the same collection which, if I understand it
correctly, says that the Federal Republic of Germany will
assist foreign authorities to enforce the appearance of
witnesses before Courts outside Germany, if indeed it is
guaranteed that they will be allowed to return safely and
that no criminal proceedings will be instituted against them
within one week from the date on which they are required to
appear in order to testify.

Presiding Judge: Would you read it in the original language?

Attorney General: I will submit the book to the Court. This
is how I understand the paragraph. And with us there is no
reciprocity at all in such cases, since the State of Israel
is in no way able to force an Israeli citizen or any
resident of the State of Israel to appear as a witness
before a foreign Court, something which the German Federal
authorities are apparently able to do, and therefore,
obviously one cannot speak of any reciprocity concerning the
granting of immunity.

This is all I can say in this matter. I also requested
information from the Ministry of Foreign Affairs who advised
me that the aid  we extend to the competent authorities of
West Germany and Austria is given within the framework of
the Law for Legal Aid to Foreign States to which I have
already referred, and that the legal aid which West Germany
and Austria extend from time to time to the competent
authorities of Israel is given within the framework of the
Hague Convention concerning Civil Conventions Procedure
dated 17 July 1905, published in Reshumoth: Conventions and

Presiding Judge: And what about criminal matters?

Attorney General: As I have already stated: only within the
framework of our existing law.

Presiding Judge: There is no actual experience of such
matters - or have there been any such cases?

Attorney General: With regard to Austria, our Ministry of
Foreign Affairs, until two days ago, could not recall that
there had been any application in criminal matters. As far
as Germany is concerned, there were such applications and we
rendered aid.

Presiding Judge: I am referring to cases of the opposite
nature, where we requested aid from Germany.

Attorney General: We have both requested aid from Germany
and received it from her.

Presiding Judge: In what way?

Attorney General: By making an approach through the Ministry
of Foreign Affairs, by way of the Reparations Mission, to
the German Foreign Ministry and afterwards to the Ministry
of Justice.

Presiding Judge: And there evidence is taken before...?

Attorney General: Before a Judge. He has the power of
enforcement as we have clarified meanwhile, to compel a
witness to appear before him.

Presiding Judge: Has there also been a case of taking
evidence before an Israeli Consul in Austria? I do not know
what the situation is in Germany. There are no diplomatic
relations with her. Possibly the Purchasing Mission there
has similar authority. I do not know. What do you know?

Attorney General: I am not aware of of any judicial
authority, or authority to take evidence on the part of the
consuls, apart from a sworn declaration.

Presiding Judge: In civil matters, under Section 15 of the
Law of Evidence, it is possible to impose this function on
an Israeli consul.

Attorney General: If the local Government permits that.

Presiding Judge: Yes. As far as Israeli citizens are
concerned I am not certain. At any rate there is no such

Attorney General: We do not have any experience in regard to
Austria. And with regard to Germany, there was no need since
the aid is given by means of the Courts.

Presiding Judge: Can you tell us of other forms of
examination by the German Court, whether by an examination
viva voce, as the Englilsh say, or by means of

Attorney General: Both systems exist. Sometimes we send a
questionnaire and we request the judge to pose the required
questions. Sometimes we ask them to conduct an examination
on a particular subject and we furnish the judge with
information on the general description of the matter under
consideration. Where the case involves a matter under
dispute, there is nothing to prevent the parties from trying
to arrive at an agreement between themselves as to the
questions which should be submitted, with the right to add a
supplementary examination to the extent that the replies
would warrant that.

Perhaps I may be allowed to add something to complete the
picture. With regard to Austria, I forgot to say that there
is what is called a "Note verbale" from the Austrian Foreign
Office dated 25 April 1960, which speaks of an arrangement
for legal aid in criminal matters, together with the
proposed draft of an agreement. But so far nothing has been
finalized and the question is still the subject of contact
between the two countries.

Dr. Servatius:  As far as I can see paragraph 43 of the Law
of Legal Aid does not say that the aid is rendered only by
compulsory judicial action, but if a witness should so
request, he must be guaranteed free movement up to eight
days after being examined, irrespective of whether the
matter is a civil process or a process involving punishment
or reparation.

Presiding Judge: As I have mentioned we will hand down our
decision on this matter tomorrow morning.

Attorney General: I should like to repeat: My statement on
the question of sworn declarations still stands, and
likewise my statement on the question of taking appropriate
evidence abroad within the framework of the arrangements for
legal aid still stands, if the Defence wants to make use of
them, as I suggested in Court on the first day of this

Presiding Judge: What is the appropriate method in your

Attorney General: I would prefer examination before a judge,
with the possibility of cross-examination in those cases
where it will be evident that it would be relevant and
necessary for the defence of the Accused.

Presiding Judge: Cross-examination?

Attorney General: Within the customary framework of a
Continental Court.

Presiding Judge: And who will represent our country in this

Attorney General: The State will attend to appropriate

Judge Halevi:  Can this be done according to the existing
laws which you previously quoted?

Attorney General: In West Germany, yes.

Judge Halevi:  And in Austria?

Attorney General: I hope so.

Judge Raveh:   Do we know from experience how long it would
take to complete these matters?

Attorney General: In one particular case we requested legal
aid in January and received a reply in March. We actually
obtained evidence given before a judge.

Presiding Judge: Was this also by way of a verbal

Attorney General: Yes, by means of a verbal examination.
This also applies to the present trial, but at a later
stage. We shall submit an appropriate application. Dr.
Servatius was actually invited to take part in that

Presiding Judge: Was the State of Israel represented there?

Attorney General: No, we submitted to them the questions we
wanted to ask.

Judge Raveh:   May we assume that this is the minimum time
or do you see a possibility of shortening it?

Attorney General: This depends on the circumstances. It
depends how accurate is the address that they give, and the
possibility of tracing the witness. Generally speaking our
experience is that it need not take a long time. At any
rate, if the Defence wishes to require such a suggestion, it
would be best if it were to come forward now with a detailed
statement, that it should do so now and that we should not
lose the time passing meanwhile, that is to say, while we
are bringing our witnesses and it would be possible,
meanwhile, to make the necessary arrangements abroad should
they so desire.

Presiding Judge: This does not mean that you are waiving -
let us take for example the last mentioned matter - von
Thadden. I understand from you that this does not amount to
a waiver of the application to submit the statement he made,
instead of examining him?

Attorney General: No, on the contrary. This is not a waiver.
I only want to go as far as I can to the assistance of the
Defence and say: The fact that this statement is to be
submitted does not bar the way to obtaining an additional
statement from him and if he has something to add on matters
that happened years ago, nor does it bar the way to giving
his evidence before the Court, if indeed you so desire.

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