Archive/File: people/e/eichmann.adolf/transcripts/Sessions/Session-114-04 Last-Modified: 1999/06/14 [Dr. Servatius, Continued] It was the Accused's function to report to his superiors on the progress of the matter. It then became his task to take over at the German border the trains which had been loaded by the Hungarians, and to re-direct them to Auschwitz, or other places of destination, according to the instructions given to him. The Accused's position in Hungary is well explained by the fact that he applied to his superiors to disband his unit, after Horthy had forbidden to proceed with further deportations from Hungary. The Accused did not lodge any protest or take any measures against this change of mood. This was to be expected quite definitely, according to the description of his character by certain interested persons. Instead of doing so, he accepted the command of a unit at the front line and brought back from the front line a field hospital and a group of ethnic Germans. The pressure upon the Hungarian Government to renew the measures against the Jews was exercised by Veesenmayer, with the consent of the Foreign Ministry. His assistants were Winkelmann and Geschke. As the result of political pressure, Szalasi took over the government administration, and the deportations were to recommence. Winkelmann recalled Eichmann urgently, in order to organize the transportation of fifty thousand Jews as a labour force to Germany. The outcome of this pressure was the notorious foot march. It was carried out by the Hungarians. No manpower for escorts was at the Accused's disposal. It emerges convincingly from the hierarchic relationship that, on the German side, the responsibility was that of Veesenmayer, Winkelmann and Geschke alone. The foot march was not a secret manoeuvre of the Accused, but a measure agreed upon by the members of the political leadership. In this connection, the report drawn up on 22 November 1944, at the time when the events occurred, by Secretary of Legation Wallenberg, is illuminating. This record contains a report of the events made by Dr. Breszlauer. This report does not make any mention of responsibility on the part of the Accused, who is alleged to have been so prominent. The Accused was pushed into the limelight only after the War by those really responsible, in order to exonerate themselves. In this connection, the eager support of the witness Becher is typical. Now, what has been proved as regards the facts? I do not need to repeat all the details, the facts have been thoroughly expounded at a great number of sessions. The Accused himself has had the opportunity, during his examination, to reply in extenso to each and every Count. In the written closing brief of the Defence, a comparative table of the evidence in favour of the Accused and the evidence for the Prosecution, in respect of every issue, has been drawn up; may it please the Court to consider carefully the pros and cons, and to make its findings. Let me make the following general observations: The best evidence of the facts are the documents produced by the police and the Prosecution. Without these documents, the Accused would have been defenceless. However, these documents are only fragments of the total material which escaped destruction at the end of the War. They consist of decisions, instructions and other isolated written instruments. These written instruments generally have no connection with one another. The corresponding files are missing; we do not know the events preceding a decision which would make it possible to examine whether it was justified. In this connection, the case of the Dutch professor Meyers is a good example. In this case - as well as in similar cases - the Accused is charged with having refused summarily, and on his own initiative, to grant an exit permit for departing abroad, notwithstanding an offer to pay an amount of 150,000 Swiss francs. The sworn declaration of Professor Meyer's female lawyer and her book, Der Kampf um ein Menschenleben show a different picture. The departure was not prevented by the Accused's conduct. An exit permit was granted; but the Swiss bank, without expressing any reasons, refused to transfer the amount of foreign currency which had been placed at its disposal. All the efforts of the professor's Swiss colleagues were of no avail. The homeland of the Geneva Convention turned its head away without a word. The Accused's allegation - which always met with doubts - that the decision in important matters had not been his own, but that of his superiors - has been confirmed in this case. Himmler himself had in this case retained the power to decide. Moreover, it transpired that Professor Meyers was spared the fate of deportation to the East through the intervention of the Accused's Section, and returned home unharmed from Theresienstadt after the War. That was a small concession which, moreover, was authorized by the directions given in respect of the person concerned, who was anyhow entitled to leave the country. That was in conformity with the relief which Probst (Dean) Grueber wanted to obtain for his people. However, the Prosecution considers the Accused's conduct in this instance as evidence for his omnipotence. The grant of a concession in this case is construed to the detriment of the Accused. What is the weight which should be attributed to the testimonies? It is possible that the picture of events in the memory of a witness who had been persecuted has become blurred. The testimony of the witness is likely to be a mixture of personal experience, and of what the witness has read or heard from others. The lapse of time will have done its work. The danger that this will happen, exists in particular where the story of the experiences is frequently repeated. Human weakness will complete and embroider the events, and later on one cannot rectify what one has told. A picture of the events is crystallized - a phenomenon we know to have been experienced by war veterans in respect of their war experiences. Similar testimonies of persecuted persons given in German courts have sometimes proved to be wrong. In protection of these witnesses, the courts have rejected the charge of false testimony made against them. They have excused the proved untruth of a testimony as having been the result of circumstances, and as being understandable. This ought to be done here, too. In this connection, it has to be borne in mind that the Jewish functionaries who have testified as witnesses had to be careful not to raise even the shadow of suspicion that they had obeyed the Accused, or even collaborated with him. It would only be understandable if they tried today to dissociate themselves as far as possible from the Accused by exaggerating trivialities. A great number of witnesses has described their own fate, and that of the members of their family, as well as the road of their fellow sufferers. I have not cross-examined these witnesses. I might have shown that their testimonies contained contradictions and statements of facts which cannot have occurred. But all in all, the facts as described were unimpeachable, and I had too much respect and reverence for their suffering to attack these witnesses by petty questioning. As to the German witnesses for the Prosecution - their testimonies were unearthed from the rubble heap of the Third Reich, and they are not exactly spotless. All these witnesses, when giving evidence, had their own worries. They were under arrest. They were not interested in telling the truth, but in saving what could be saved. The truth is not important - don't let yourself be caught out! That was the watchword. These were political trials in which the accomplices bore in mind that they were partners in the conspiracy. Probably everybody in Nuremberg was aware of that. The witness Grell and the witness von Thadden have now confirmed what were the circumstances at that time. However, we have the testimonies of Hoess and Wisliceny. The characteristic features of Hoess' statement are that he has completely surrendered. When writing, he uses the same kind of language as his accusers, calling the detainees in the labour camps slave workers - and, to be sure, previously he would strictly have refused to do so. He does not swim against the tide, and it seems that, in his testimony, he conforms to what is now expected from him. He cannot deny his complicity, but he comes from the Nuremberg gaol, and he knows what he has to do. What can he deny, as far as he himself is concerned? However, it is convenient to shift, at least to some extent, the burden of his own moral responsibility. The Accused is alleged to have informed Hoess of the first directives concerning the methods of extermination. However, the witness was already on the job and did not need any such directives from the Accused. The persons who had placed at his disposal the gas squad for the killing of the mentally ill were Brack and Buehler. Hoess' statement on the Accused's participation is not corroborated by any documentary evidence. This is a striking fact, for traces of everything else have been found there. The witness Wisliceny: It is obvious that this witness, in readily giving such a great number of testimonies and statements, was motivated only by the desire to be released. On various occasions, he offered to seek out the Accused and his family. He, too, comes from the Nuremberg gaol. The protection of the members of his family against the revenge of his comrades is offered to him in consideration for not conducting himself in conformity with the general line of conduct adopted by the detainees. Wisliceny succeeds in being transferred in Nuremberg from the gaol of the main culprits to the division of the witnesses. This is the reward; it is the first step to liberty. According to the record which has been produced, he is "happy as a lark" at this favour granted to him. Now, what about the evidence for the Defence? The Accused has not been able to produce, on his part, documentary evidence for his defence. The archives of the world, and the resources of a government were not at his disposal. Experts who could have been helpful turned a deaf ear to the requests of the Defence. They were intimidated by the daily fanfares of the press and the trumpeting of publications. They shut their ears. This noisy campaign of the press against the Accused amounted to contempt of court of an enormous extent. The Defence was hardly able to fend it off. And what about the witnesses for the Defence? They heard the threatening words of the Prosecutor; they feared that, in any case, they could not expect any cheerful experience, even if they were permitted to appear in court in Israel. They preferred to keep away. The examination of the witnesses on commission was not a complete substitute for the examination by the Court itself. The judge charged with the examination on commission was unable to master the material of this gigantic trial. Nevertheless, he had to conduct the proceedings. The examination of the witness Hoettl is characteristic in that respect. His examination lasted three days; it took place in the absence of the Defence and of the Prosecution. Thereafter, the judge writes that he had tried to assist in the elucidation of the murders. But this, precisely, was not his task, it is the task of the Court. The judge charged with the examination on commission had to record the testimony of the witness and nothing else. Therefore, the examining Judge: did not keep the necessary distance and appears to be biased. The testimonies of these witnesses stand by themselves and are not corroborated. However, to the extent that the testimony can be based on documents, it stands to reason that the witnesses gave their testimony after they had been confronted with the contents of these documents. It may be assumed that they have brought their testimony in line with the contents of the documents. Dr. Kasztner's Report cannot be considered as corroboration of Hoess', Wisliceny's and Brand's testimony. It is a fact that this report is only an image of these testimonies and was drawn up only later on, after consultation with other persons involved. The weight of this report would have been different if it had consisted of notes from a diary made at the time of the actual occurrence of these events. It would then also have become evident that Hoettl used the statement made by the Accused, in the presence of comrades, at the time of the collapse of the German Reich, as an alibi for himself. The witness Hoettl proudly admits having been a political turncoat. All over the world, statements by such a person generally enjoy little credit. Then books are written in justification, but that, too, is of no avail. The Court should reject Hoettl's testimony. It would have given considerable relief to the Accused if the other witnesses had been examined by the Court itself. Confronted with the Accused, they would have had to retract various statements. Thus Veesenmayer probably would have remembered that he had begun to execute the measures against the Jews according to plan. He would have had to admit that, on 18 March 1944, he travelled from Salzburg to Budapest together with Kaltenbrunner and Hoettl, and knew of the instructions concerning the Jews. He had not been put on the train just in order to be handed over to the Accused in Hungary. The same applies to the cross-examination of the German witnesses for the Prosecution. I refer to the examination of the witness Becher. A few days before his examination, the examining Judge: handed him the list of questions to be put to him in cross-examination on behalf of the Defence, in order to enable him to prepare his testimony. What a strange case! By reason of this procedural defect, the Court should disregard the testimony of the witness Becher. The lack of credibility of this witness emerges also from the fact that, already on a previous date, he had tried to bring his testimony in line with that of others. I refer to the detailed conversation between the witness Becher and Dr. Kasztner, which was even permitted to take place in the gaol. In addition thereto, it has to be mentioned that the witness Becher had contacts with the witness Brand and the engineer Biss even after the beginning of this trial. The witness is discredited in particular by his having denied under oath that he acted as interpreter at the interrogations in prisoner camps - which, however, has precisely been established by his own prior testimony. The Accused's own testimony as a witness: The Prosecution claims that this testimony is a pack of lies. Only where the Accused was shown documents and was driven into a corner did he admit certain facts. I do not think that this is quite correct. From the first day of his interrogation by the police, the Accused readily volunteered any information he was able to give. Who can remember, after sixteen years and more, every single event which has occurred in the course of his professional activities? One needs documentary support for that purpose. This argument was parried by the allegation that the Accused otherwise remembered a lot of minor details, and that he only did not want to remember events having occurred in the course of his professional activity. These allegations are not justified. We, all of us, do remember various small details of life which occurred long ago, but not all the events of professional activity. Only the documents produced and perusal of Reitlinger's, Poliakov's and Kempner's books reminded the Accused again of various subjects, of the facts he had forgotten a long time ago. The Accused has tried to elucidate connections between various events and has examined the existing alternatives. Where his reasonings could not be supported or appeared to be devoid of logic, he himself rejected them. However, such a co-operation cannot operate now to the detriment of the Accused. It is not correct that the Accused was evasive in his replies. At the beginning of the Accused's interrogation by the police, he volunteered information precisely - and in all details - of the facts which were likely to incriminate him most of all as a human being. He reported on his travels to the places of extermination, where he had come into contact with the horror. Nobody else would have been able to prove these occurrences. This frankness should entitle the Accused to be believed also in respect of less important matters. You cannot look at the Accused's life as through a legalistic keyhole. Furthermore, the Accused has not tried to find ways open to him, in order to extricate himself. It would have been easy for him to rely on the testimony of the witness Dr. Merten, according to which he assisted the latter in the rescue of twenty thousand Jews from Salonika. Likewise, the Accused did not choose the easy way to adopt the explanation suggested to him by the witness Rademacher, in respect of the marginal note, "Eichmann proposes shooting." He preferred a hardly understandable explanation for this event. However, later on, his statement found support by the reasons given in the Nuremberg judgment against Veesenmayer (Case No. 11). They show that Rademacher himself travelled to Serbia in order to organize the shootings. The view held by the Prosecution that this witness, who held the office of a counsellor of legation in the Foreign Ministry, acted upon the Accused's direction, can hardly be upheld. Finally, it cannot be disregarded that the Accused's replies to all questions in the protracted and vigorous cross- examination by the Attorney General were firm and calm. Nobody is able to do so, if he has to defend a mesh of lies. But what of the Sassen memoirs? True, they seem to be devastating for the Accused, but their contents do not tally with the facts. They are the outcome of provocation, made under the influence of alcohol, and embroidered to suit the reader's taste. The tendency of this publicist was not to tell the truth, but to be interesting. It is surprising that the Prosecution did not call Sassen to testify in Court, as best evidence to disprove the Accused's allegations; obviously, the idea was to avoid the cross- examination of this witness by Counsel for the Defence. Thus, the Prosecution preferred not to discharge the burden of proof for the crux of its allegations. However, mere suspicion is not sufficient evidence in a court of law. In this trial, the Accused has not been placed in the centre of events. Is he the principal offender, an accomplice, or involved in a conspiracy? In this connection, two legal systems have to be compared. The German system: A principal offender is only a person who intends to commit the act as his own. An accessory is a person who intends to assist somebody else in the commission of the offence by that other person. Israeli law follows the system prevailing in Anglo-American jurisdictions. Intention, as a distinguishing element, is disregarded. The objective test of participation in the commission of the offence is decisive. In both systems, there is a wealth of judicial precedents, but the result arrived at is generally the same. Under German law, the result can be that the accused is found guilty of having been a mere accomplice; but in that case he is liable to the same punishment as the principal offender. Under Israeli law, the accused can be found guilty as a principal offender; but in determining the measure of punishment, the smaller degree of his participation as an accessory in the commission of the offence by another may be taken into account. In order to find a person guilty as a co-principal, it is sufficient to show, according to Section 23(1)(b) of the Criminal Code Ordinance, that the accused intended, by his act, to enable or otherwise aid the perpetrator to commit the offence.
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