Archive/File: people/e/eichmann.adolf/transcripts/Appeal/Appeal-Session-04-07 Last-Modified: 1999/06/15 Attorney General: We have seen the value of such testimony. We saw this in the case of Brack. We hear that Wetzel was not prepared to give us any idea of what he was going to testify, and if there is any point in making an application for further evidence, then the Court must at least be told - more or less - what it will be. Thirdly, it is my argument that Wetzel's evidence will add nothing and detract nothing. The principles which apply to the hearing of new evidence at the appellate stage have been laid down in several Israeli judgments. Section 71 of the Criminal Procedure (Trial upon Information Ordinance) gives the Appellate Court extremely wide powers. How these powers are to be used by the Court were laid down, inter alia, in Criminal Appeal 3/48, Pesakim 2, page 216, where it was held that two conditions must be satisfied. (1) That the Defence was unable to bring that evidence despite every effort and endeavour; (2) That the importance of the evidence is such that, had it been submitted, it was definitely liable to have affected the view of the Court below. Just a few days ago this Court decided, in Criminal Appeal 7/62, "that it is a well-known rule that this Court, sitting as a Court of Appeal, does not hear additional witnesses, nor does it hear witnesses who testified in the Court of First Instance, except in the most exceptional circumstances and when allowed under the law." Justice Agranat: What is the reference? Attorney General: This has not yet been published, but I have the judgment if the Court wishes to read it. During the Mandate it was held under Criminal Appeal 73/39, 1939, Palestine Law Reports, 1940, page 8: "The authority to hear additional evidence will be used only in the most exceptional cases, and will never be used when the evidence was known and could have been submitted to the court." In this respect our courts have followed English case law. There, too, under the Criminal Appeal Act there is extensive authority to hear additional evidence on an appellate level, and in R. v. Parks, (1961) All England L.R., Vol. 3, page 633, we find the conditions for the court hearing additional evidence at the appeal stage: "(i) the evidence sought to be called must be evidence which was not available at the trial; (ii) the evidence must be relevant to the issues; (iii) it must be credible evidence in the sense of being well capable of belief, and (iv) the court will, after considering that evidence, go on to consider whether there might have been a reasonable doubt in the minds of the jury as to the guilt of the appellant if that evidence had been given together with the other evidence at the trial." In other words, we must be told what the evidence will be in order for the Court to be able to rule whether, if this evidence had been submitted to the Court of First Instance, the court below would have changed its opinion in terms of its findings. Here we are not even told what Wetzel is going to testify. President: It was said that the letters were not sent off. Attorney General: We would like, at least, to receive an affidavit. We hear that there was a telephone conversation between Counsel for the Defence and Wetzel, and that Wetzel says that he does not want to testify now, because proceedings are pending against him. What value can be attached to his evidence, to what extent would his evidence make a difference, we cannot know. He is evading giving testimony, he says himself that he does not wish to testify. Moreover, whatever Wetzel says today, what value can his testimony have in the face of the official documents which have been found? Furthermore, the Court itself says that Eichmann's denial of this passage has no effect whatsoever. They say in Paragraph 167: "We do not attach any value to this denial and so do not accept it. The denial is based essentially on the fact that, in the handwritten memorandum, the Accused's name does not appear. This was noticed by the Accused only after he had been examined by the police. The documents were written in an official office of the German Reich, their formal authenticity is not in doubt; they are closely connected; they record the words and actions of persons acting with official authority, and they were composed soon after the events occurred. If we add to this that the Accused readily admitted the accuracy of their contents, not only spontaneously when the documents were first shown to him, but also a second time on another day, after he had had time to think, and volunteered to repeat his confirmation of their accuracy, without having been questioned again on this subject; and again on a third occasion, when shown the same documents he expressed no reservations. This is more than sufficient to convince us that these documents are not only authentic from a formal point of view, but also accurate in content, and there is no basis for the much later denial made by the Accused." Consequently, even if Wetzel appears, regardless of what he says about these documents, in view of the Accused's own reaction to this document which he himself endorsed, this finding must be upheld. Justice Silberg: The typescript is incomplete, there are blank spaces. There is also a blank line before the word "Sturmbannfuehrer." What might have been there? Attorney General: There are two blank spaces. If Your Honour compares the typescript with the manuscript... Justice Silberg: In the manuscript there are two blank spaces, before the letters S.T.B.F. and after "Sachbearbeiter," what could be in between these two words? Attorney General: I do not know, nor do I consider this to be of significance, with all due respect. Justice Silberg: Dr. Servatius argued: "oder" (or). Attorney General: I prefer to concentrate on the typed documents in which his name appears with spaced letters and emphasis. Justice Witkon Above the letters which might read Sturmbannfuehrer, there are two or three other handwritten words. Cannot that be deciphered? Justice Sussman: Justice Witkon is asking about the words below Brack. The question is not whether the letters were sent, or which letter was sent, but rather the question is whether the conversation referred to in the letters actually took place. That is the question. Justice Witkon There is a similarity in these two letters, all sorts of mistakes, as it were, in the manuscript and afterwards they reoccur in the typescript, with the correction. For example: "Zwischenfrage" (interjected questions) and "Judenfrage" (Jewish question). All of these have been reproduced. Attorney General: The splitting of numbers into two also appears in both documents. But I believe that what Justice Sussman just said is really the nub of the issue. The question is not whether the letter was written or sent, but whether such a conversation actually took place. And whether clarification took place during which it became clear to Wetzel that Eichmann assented to the use of gas. I would even go so far as to say that it is of no interest to know whether Wetzel found out directly from Eichmann or via Brack, that is not important, either. Even if Wetzel were to come along now and say: This information stems from Brack, that Eichmann agreed to the extermination, even that would make no difference. And if all we had was that, perhaps we would be well advised to reflect, but after all, we know from other sources that he had a hand in this matter. President: We are speaking now about motor vehicles and not about Zyklon. Attorney General: For example, the process of extermination using exhaust gas. In the Gerstein documents... President: In Gerstein's story about exhaust gas there is no reference to Eichmann's name, nor to that of Guenther. Attorney General: With all due respect, there certainly are such references. President: Is Guenther mentioned in connection with Zyklon? Attorney General: He writes how Guenther sent him to check on the efficiency of extermination using diesel engines, whether this could be replaced with cyanide. T/1313. President: What is T/1313(c)? Attorney General: That is part of the Gerstein documents. In the last paragraph of that document Gerstein says: "The officer of the SS Guenther ordered me, to make all arrangements to replace the Diesel-motor as the method of extermination by the use of cyanide." President: Does he refer to exhaust gas? Attorney General: The reference is to diesel, and that was exhaust gases. Guenther says that the possibility of replacing this with cyanide should be investigated. President: From which page in document T/1313(c) were you quoting? Attorney General: Page 4, the last paragraph of the document. I now quote from T/1313(a), page 12, line 5 from the top: "I have never known what class of people Guenther was still to kill, on orders of his chief, Eichmann." Justice Silberg: Mr. Hausner, can you indicate documents on which the District Court did not base itself in making this finding? In Paragraphs 166 and 167 the Court makes no reference whatsoever to Gerstein. Attorney General: The District Court refers to Gerstein in another connection - in connection with the extermination by gassing and the Accused's part generally. The Court says that it places credence in the Gerstein documents; if the Court places general credence in the Gerstein documents, I do not see why I am not entitled to refer to a particular passage in those documents in which the Court believes. Justice Silberg: These points are made there in a different context. The Court says: "We derive the main evidence implicating the Accused with regard to the introduction of the method of killing by gas vans from documents connected with the name of Dr. Wetzel." Attorney General: The business of killing by gas, whether using gas vans, exhaust gas, or cyanide gas - is a single chapter. There is no need to draw a distinction between the primary proof of the chapter of the gas vans and subsequent proof of extermination using gas and other means. There is a single complex which is called, as Eichmann puts it, "Gasgeschichte" - the gas business. There are several parts to the evidence: Wetzel's letter, the Gerstein documents, and Hoess's evidence. I believe that I am entitled to base myself on the entire complex. Eichmann admitted that he came into contact with Wetzel (Session 98, Vol. IV, p. 1707). When he was asked why he admitted in his Police interrogation that the Wetzel documents were authentic, he gave an interesting answer (Session 98, Vol. IV, p. 1708): Why should I deny something which I was ordered to do...but if I am given the entire set of documents, I do not see why I should not examine these documents and then the result can be either in my favour or damaging to me." I would summarize this chapter as follows: First of all, it should have been demonstrated to the Court that Wetzel could not have been called during the proceedings in the Court of First Instance. We know nothing about this. Many witnesses were called, and probably if Counsel for the Defence had asked for Wetzel to be called - there would have been no reason to refuse his application. The fact that the Wetzel document is one of the Prosecution's items of evidence was known to the Defence for a considerable time prior to the opening of the proceedings. The Accused was questioned about that several times by the Police. In procedural terms, just this fact is sufficient as grounds for rejecting the application. But the testimony will also not add anything as to the substantance of the matter. President: In procedural terms there are many defects. I remember that years ago, when appearing in a criminal case during the Mandate, there was an attempt by the Defence to bring a witness. First of all we submitted an affidavit by those whom we wanted to testify, so that the Court could appreciate the importance of the matter. Because there is another rule, that the Court of Appeal will not be inclined to allow testimony on speculative grounds. I believe that there is a ruling on this dating back to the period of the Mandate. Attorney General: I have brought with me the Mandatory ruling. I thought it best to base myself on the latest rulings. In any case, from our case law and English case law it is clear that the Court must be shown what the witness is going to say. This is done by application to the Court. President: The reason why I am saying this is to draw Dr. Servatius' attention to it, so that he can go into the matter and will be able to say something in his reply. Attorney General: I would request that this application not be granted at this stage, particularly since it will change nothing in respect of the Accused's responsibility for and knowledge of extermination by gas. This comes from his own lips and is corroborated by documentation. As for the Sievers affair and the Strasbourg skeleton collection, Counsel for the Defence also ignores the evidence. Had Eichmann informed Sievers, as is argued here, that he had no power to deal with the skull and skeleton collection, then without a doubt the whole business which began in 1942 would have come to an end. Exhibit T/1366, which is Sievers' letter to Eichmann dated 21 June 1943 after a break in any handling of the matter, utterly disproves this argument. Because something like six months after he began to handle things, Sievers approaches Eichmann again, basing himself on a letter from Eichmann's Section dated 25 September 1942 and on talks about the matter that had been held in the interim, and now asks that the supply of skeletons be made. And here we have definitive proof that Eichmann did not deny his authority in this matter. Because had that been the case, there would have been no point in sending T/1366. And these documents are not just "schwer belastend" (highly incriminating), as Counsel for the Defence put it, they also prove definitively that Eichmann provided - he provided not skeletons, as asked by Sievers, but live people in order for Sievers to turn them into skeletons for the Nazi research. Justice Silberg: Mr. Hausner, you also need T/1365 dated 6 November 1942, which supports Sievers' testimony in the Doctors' Trial, that he visited Eichmann and talked to him. Attorney General: Yes, Your Honour, but here the Accused says, "At that time I said that this matter was none of my business and I did nothing." But then we have the letter from a period some six months later which shows that that could not be so, because Sievers bases himself on additional letters and conversations with him. President: We know all this about Sievers' letter, and we know about the Appellant's reaction, to ask for a letter from someone senior to him. All of this is in the Judgment. And in the Judgment it says that Eichmann gave instructions to Auschwitz to provide what was asked for. But where is the proof? Attorney General: Your Honour, the corpses were found in Strasbourg. The liberating French Army found the dismembered bodies. President: But how do we know that they were put to death in accordance on the Appellant's instructions? Attorney General: The Appellant was not found guilty of killing these 100 people, but this simply sheds more light on the atrocities. We know that he was contacted when they needed Jewish skeletons, we know that he was also the address for the Inspectorate of Concentration Camps where Jewish bodies were concerned, because the transports of Jews were under his exclusive authority, he is their lord of life and death. And even Gluecks is not able to issue orders on these matters. And we have the proof that this matter remained under the control of his Section and not that of the Economic-Administrative Office. Justice Silberg: Did Kramer, at the Doctors' Trial, give evidence about this (T/1371)?
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