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Last-Modified: 1999/05/28

Session No. 39

29 Iyar 5721 (15 May 1961)

Presiding Judge: I declare the thirty-ninth Session of the
trial open.  Mr. Hausner, at one of the previous sessions, I
think it was on Thursday, when Mr. Bach appeared, a question
arose of additional affidavits of persons not in this
country, the submission of which you perhaps might want to
request. Mr. Bach then stated that at the beginning of the
week he would inform us whether there were still such
affidavits so that, if necessary, we could make the required
decisions in this connection.

Attorney General: We intend to submit the full list of these
affidavits immediately after the morning break.

And now, with your permission, owing to the presence in
Israel of one of the witnesses whom we shall not be able to
keep here, but whose evidence possibly should have been
produced at the beginning or at the end, we would ask for an
interval in the current presentation concerning Germany, and
to call Mr. Michael Musmanno, who is present in the Court

Dr. Servatius  Before this witness is heard by the Court, I
would request to consider the question whether his evidence
is relevant to the trial so as to justify its being heard.

This witness was a judge in three of the subsequent trials
of war criminals at Nuremberg. I believe that - for this
reason alone - he should not appear as a witness here in
order to give evidence as to what he decided at the time. It
is for this Court to find the facts and to set them out.

Presiding Judge: Mr. Justice Musmanno, this is an objection
to your giving evidence at all before this Court. Please
stand down during the hearing of the objection.

Dr. Servatius  Your Honour, I believe that, as far as I
know, in this country, too, in the State of Israel, there
exists a judicial precedent, stating that the evidence of a
judge should not be heard as a witness on what he has
decided in previous proceedings, so as not to subject him to
the risk of cross-examination. In my opinion this does not
apply only to Israel.

Presiding Judge: What is this precedent? [To the
Prosecution]  Perhaps one of you would meanwhile explain to
Judge Musmanno what is being discussed here.

Dr. Servatius  I was told that the reference is to Criminal
Case 513/60 before the District Court of Tel Aviv, before
His Honour Judge Kennet. It was published in Pesakim  Vol.
25, dated 15 January 1961, on page 224.

Attorney General: I think that was the case of Attorney
General versus Yehezkel Sahar.

Dr. Servatius  In my view this applies not only to judges in
Israel and not only to this country, but it applies to the
standing of judges in general, for it is not desirable to
subject a judge to cross-examination on issues which he has
decided, while such cross-examination must not be denied the
defence in any trial. I only have a summary of these
judgments, but I have, in my possession here, the two
brochures of the report and can submit them to the Court.

[Dr. Servatius submits the brochures to the Court].

According to information I have received from the office of
the Attorney General, the witness is to be heard roughly on
the following points: That Judge Musmanno, while a naval
officer, conducted an investigation into the circumstances
of the death of Adolf Hitler. I maintain that this is a
matter which has no relevance to the proceedings presently
before this Court.

In the course of this assignment he examined prisoners of
war and other displaced persons in captivity, and he also
interrogated persons close to Hitler and members of his
entourage. Several of them, in their statements, mentioned,
and spoke about, Adolf Eichmann, and related to his work and
his activities. I believe, Your Honours, that what is likely
to be heard from this witness is nothing more that hearsay
evidence, and surely this is evidence which is not usually
admissible in Court.

A third point: It is said that the witness was present at
the trial of the war Criminals Raeder and Doenitz in his
capacity as an observer at the International Military
Tribunal. In these trials also, I do not see any relevance
to the present case.

It is also said that he had discussions and dealings with
members of the Navy and with many other accused at that
trial, including - inter alia - Goering, Kaltenbrunner,
Fritzche, Ribbentrop, von Neurath and others. This, too,
would only be hearsay evidence and, in regard to these men,
we have valid and better evidence than this hearsay

It is further said that this witness heard from members of
Hitler's entourage and from the accused persons at Nuremberg
that Hitler had, through Himmler, charged Eichmann with the
task of carrying out the extermination of the Jews. I
believe that this is a question which must be determined by
this Court, and not by the witness.

On point six it is said that the witness has knowledge of
Eichmann's control over concentration camps and of the
Einsatzgruppen. Now this witness was not in Germany at this
time and he also had no direct role in these matters as a
Jew, since he is not a Jew. This witness acquired knowledge,
or believes that he acquired knowledge, subsequently, and he
has a viewpoint which he wishes to express before this
Court, and, in my opinion, the expression of this viewpoint,
this judgment of his, should not be admissible in this

On point seven it is said that the witness will be able to
testify about Eichmann's visits to the concentration camps

and the operation groups during their action in the field.
This evidence, too, cannot be more than hearsay evidence,
and there are, before this Court, documents to that effect
which are better evidence than hearsay evidence and, this
evidence  would also mean a duplication of testimony.

On point eight it is said that the witness will be able to
testify about reports which Eichmann received concerning
murder by shooting and the confiscation of property. These
matters have also already been presented in documents, and
accordingly here, too, this would mean duplication in the
presentation of evidence.

With regard to point ten, the reference is to
Standartenfuehrer Blobel, who has already been mentioned
several times, and this witness is to testify that
Standartenfuehrer Blobel submitted reports to Eichmann's
office concerning executions and concerning the obliteration
of traces, facts which were described by Ohlendorf, one of
the accused in Case No. 9 at Nuremberg. This, too, would be
nothing more than mere hearsay evidence.  Apart from this,
it should be pointed out that Ohlendorf's evidence was
included in an affidavit in the Green Series, in Volume 4,
on page 212, like the affidavit of Blobel, in connection
with point 3, in the trial regarding the Einsatzgruppen.

On point 11 it is expected that the witness will present his
version and his opinion on the question of superior orders.
This is, undoubtedly, a purely legal question which this
Court is required to determine and it is not called upon to
hear what others think, what was decided in similar
instances, what this learned judge himself decided.

Presiding Judge: He also said, apparently, that those who
received the order could have refrained from carrying it
out; or did this come beforehand?

Dr. Servatius  He is also to testify that persons who
received superior orders were able to avoid carrying out the
orders and that is what some did. I can produce observations
to the contrary from the report of the trial before the
International Military Tribunal at Nuremberg.

Judge Halevi:  I understand him to say "from the judgment of
the International Military Tribunal."

Presiding Judge: Dr. Servatius, did you say "from the
judgment of the International Military Tribunal"?

Dr. Servatius  Yes - from the judgment of the International
Military Tribunal. On point 12 -

Presiding Judge: I have only reached No. 10. Are you dealing
with each point in succession or are you omitting one or two

Dr. Servatius  I am proceeding from point to point, but it
is possible that I combined points 7, 8 and 9 into one. On
point 12 - the question of the extermination or the
execution of children has also been dealt with already by
the Prosecution and has been dealt with here by the
production of material to substantiate it. The Court must
decide the issue and the Court does not depend on the
statement of a witness.

With regard to the last point, with me point No. 13,  it is
said that in connection with the events, we have to hear the
opinions and the judgment of Judge Musmanno in the case in
which he gave the judgment, in the case of the
Einsatzgruppen, and also his concurrences in the judgments
at Nuremberg in the cases of Pohl, Milch and in the case of
the concentration camps. These judgments can be produced
from the written record. There is no need to bring the
witness, who cannot add to, or subtract from, the written

I, therefore, request the Court to decide that the evidence
of this witness is irrelevant to the proceedings.

Presiding Judge: Mr. Hausner, do you have a copy of the
statement which you handed to Dr. Servatius? This will make
things easier for us.

Attorney General: To my regret, no. At an earlier stage I
obtained it from Judge Musmanno when he was abroad, and I do
not have a copy of it. I can say, briefly, that Judge
Musmanno will not be required to testify on many of the
items mentioned in that statement.

Presiding Judge: Will you please tell us on what matters you
wish to hear the evidence of the witness?
Attorney General: Certainly.

Dr. Servatius  May I submit the copy to the Court?

Presiding Judge: Yes. [Dr. Servatius submits the copy of the
statement to the Court.]

Attorney General: Judge Musmanno will not testify here about
matters which he already determined and wrote into his
judgment, since, as Defence Counsel has already said, these
matters appear on the record and there is no need to hear
oral evidence concerning them. But this is the only aspect
where I agree with the learned Defence Counsel. From here
on, I have to disagree with him.

The Court will recall that the persons who were the
superiors of the Accused, both his immediate superiors and
those who were indirectly above him, are no longer alive. I
can produce here neither Hitler, nor Goering, nor Himmler,
nor Kaltenbrunner, nor Heydrich. I am unable to produce here
other persons who were involved in these operations, such as
Frank or Schellenberg, because they are no longer alive.
Hence it is most important that the Court receive a picture
from a man who gathered information in an official capacity
concerning matters relating, inter alia, to the Accused. In
the course of his investigation on behalf of his superiors
in the American army, Judge Musmanno collected many items of
information, while conducting his enquiry.

Presiding Judge: On whose behalf was the enquiry conducted?

Attorney General: The United States Navy.

Presiding Judge: Who arranged for this in the Navy?

Attorney General: I do not know. The United States Navy
Command sent Judge Musmanno, who was then an American naval
commander, to conduct this enquiry. And in the course of
this investigation Judge Musmanno also conducted many
interrogations regarding the extermination of the Jews. He
questioned Goering, Ribbentrop, Kaltenbrunner, Frank,
Schellenberg and General Koller, commander of the Luftwaffe.
I think it is my duty to produce to this Court what Judge
Musmanno gathered regarding the Accused in the course of his

Presiding Judge: This is evidently No. 2 in the list, is
that correct? This is what you are speaking about. Please
take the list. What about item 1 - that the witness
investigated the death of Hitler?

Attorney General: That is merely a preamble. The
investigation about Hitler will not arise here at all. It
does not interest us. But in the course of conducting this
official enquiry, he made an additional enquiry. Moreover,
he himself, after delivering his judgment, investigated
several questions connected with Nazi Germany and spoke to
people for example, his conversation with Schellenberg who
was the head of Bureau 7 of the Reichssicherheitshauptamt.
These were not within the framework of the investigation -
they were part of another investigation which the witness
conducted, about which he also wrote and published.

Presiding Judge: Which investigation? Perhaps you would
describe it?

Attorney General: This was an investigation which related
generally to the operations of the Einsatzgruppen   - 3after
he had given his judgment.

Presiding Judge: On whose behalf?

Attorney General: This was a private investigation.

Presiding Judge: What happened to Schellenberg?

Attorney General: He died a year or two ago. He was one of
the accused in the case of the "Wilhelmstrasse Case." He
received a light punishment and subsequently died.

This is an important set of facts which I propose to bring
before the Court.

I doubt whether this will be hearsay evidence at all -
according to the authorities which I shall forthwith submit
to the Court - but if this is hearsay evidence, I would
request that it be admitted under section 15 of the Nazis
and Nazi Collaborators (Punishment) Law 5710-1950.

Judge Raveh  What about General Koller whom you mentioned
today - is he alive?

Attorney General: No, he is not alive. All of them are no
longer alive.

Presiding Judge: Was this also within the framework of that
first investigation?

Attorney General: All this was in the framework of that
first investigation. Koller was with Hitler in the first
days of the famous bunker of the Reich Chancellery. The
information the witness heard from Koller concerning the
execution of pilots who were taken prisoner, and what he
heard in this connection about the Accused as well, is
exceedingly important.

Presiding Judge: Koller died later?

Attorney General: Yes, he died also.

udge Halevi  Was the Accused's superior, Mueller, in this
bunker as well...?

Attorney General: No Your Honour, I do not know about that.

Judge Halevi:  I believe that he conducted an investigation.
He was called into this bunker in order to investigate the
question of the pilots you mentioned.

Attorney General: Not in the concluding days, as far as I
remember. But in this matter Judge Musmanno will certainly
be able to help us. He also wrote a book entitled Ten Days
to Die about the last days of the Reich Chancellery.

Presiding Judge: You say that Koller told the witness about
the role of the Accused in the execution of the Allied

Attorney General: Those who had been taken prisoner.

The second set of questions which I intend, with your
permission, to put to Judge Musmanno does, in fact, touch
upon the case tried before him and the testimonies heard,
but only on those portions which we have not found in the
published record of proceedings of the Green Series. The
Court will please remember that those are only very brief
summaries and extracts.

Trial 9 was the trial of the Einsatzgruppen, for example,
that lasted four months. If my memory does not fail me, it
occupies about one-third of a volume, but there were many
thousands of pages of transcripts; tens of thousands of
pages, and yet we do not have it all. There were many
testimonies submitted there which Judge Musmanno remembers.
We should like to submit, through him, a summary of them, or
their main points, and this is quite permissible, as I shall
immediately show from the authorities.

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