The Nizkor Project: Remembering the Holocaust (Shoah)

Shofar FTP Archive File: people/e/eichmann.adolf/transcripts/Sessions/Session-114-02

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Last-Modified: 1999/06/14

Dr. Servatius:  I think the judgment has been referred to by
the Prosecution: Case 11, the judgment in the matter of
Schwerin von Krosigk.

As to the charges in detail, the following are my comments:
It is not true that the Accused registered all of the Jewish
property in Austria and took control thereof.  The
registration was carried out by the so-called Commissioner
for Frozen Assets.  Persons engaged in the transfer of
Jewish property to Aryan ownership, as well as trustees,
rushed in to obtain the commercial and professional assets.
For them, the meaning of the persecution of the Jews was to
enrich themselves and to get a profitable position.

The Accused was entrusted only with administering the assets
of the religious community.  In so doing, he released
considerable sums for the purpose of emigration.  This is
confirmed by Dr. Loewenherz' Report.  The Accused enabled
the Jewish organizations to renew their activities, and
released the necessary means precisely for that purpose.  In
particular, the Accused succeeded, in the face of strongest
opposition by other agencies, in obtaining the release by
the Reichsbank of foreign currency transferred from abroad
to Jews for the purpose of emigration, to be used for that
purpose.  Had the Accused not acted at that time in the
interest of the Jews, this foreign currency would have been
converted automatically into amounts of paper Marks, which
were valueless for the purpose of emigration.

It is, therefore, due to the Accused's efforts that at that
time two thirds of the Jews of Austrian were able to leave
the country.  They could do so as they wished; their
situation had become desperate, a fact for which the Accused
was not responsible.  The Accused was not involved in the
destruction of property, the so-called Kristallnacht. He
learned of the events only after they had already begun.  He
tried to prevent damage, and placed guards in front of the
Jewish community building.  He took members of the religious
community under his protection until the storm had passed.
The activity of the Accused at the Central Office for
Emigration in Bohemia and Moravia shows similar features.
The same applies mutatis mutandi to Germany. The Accused was
not entrusted with the assessment and collection of the
"Jewish levy."  As to details, I refer in this respect, too,
to the closing brief.

A further sub-division of the Count in question is the
establishment of Special Account "W."  This was an account
into which Jews were forced to pay amounts of money, as a
voluntary contribution, prior to their deportation.  The
characteristic feature of this contribution, was that the
Jews did not thereby incur any additional loss.  The assets
out of which the contributions were transferred had been
frozen.  Accoring to the law, they were forfeited by the
very act of crossing the frontier of the Reich, even if that
occurred involuntarily, or they were declared by the
Regierungspraesident* {* Head of a subdivision of a
province} to be forfeited as being property of enemies of
the state.  The effect of the transfer to Special Account
"W," was that the amounts transferred were placed at the
disposal of the agencies charged with the deportation and
housing.  This was a device calculated to circumvent the
opposition of other agencies of the finance administration
against the allocation of appropriate means for the upkeep
of the Jews.  Difficulties were avoided, which otherwise
would have arisen when the necessary means for the upkeep of
the Jews had to be approved.  These were difficulties which
might have produced disastrous results for the Jews
concerned.  The voluntary contributions paid into Special
Account "W" were therefore actually in the interest of the
persons affected.  Indeed, these were the strange ways of
bureaucracy in the administrative labyrinth of the Third

Furthermore, the Accused is charged with having been
involved in the Reinhardt Operation.  The object of this
operation was to seize the personal chattels of Jews who had
been deported and exterminated.  However, the Prosecution
has not adduced any evidence that the Accused was involved
in the planning and carrying out of this operation.
Moreover, it has been established that this operation was
exclusively within the province of the Commander of the
Security Police and the SD in Lublin; he, on his part,
received orders directly from Himmler.

Furthermore, no evidence has been adduced to prove the
accusation that, during the whole period of the War, the
Accused forwarded to Germany, for commercial use, gold teeth
and hair taken from the corpses of persons who had been

The Accused did not have any dealings either with the
Reichsbank or with the industrial undertakings engaged in
their commercial use.  As to details, I refer to the closing
brief.  Furthermore, it has not been established that,
during the War, the Accused forwarded to Germany other
personal belongings of the Jewish victims.  It has been
established that the administration of the concentration
camps was under the exclusive control of the Economic-
Administrative Head Office.  It has not been proved that the
Accused was involved in any way in the planning and carrying
out of the aforesaid operation.  The Reinhardt Operation
came to the Accused's knowledge only at a later date.
However, this cannot be considered as an approval of these

Finally, the Accused is charged with having given
instructions in respect of the seizure of property to local
commanders of the Security Police and the SD.  The
Prosecution claims that the Accused gave instructions in the
Axis countries in respect of the seizure of property,
through the intermediary of the diplomatic missions.
However, the forwarding of instructions and orders to the
aforesaid commanders, as well as to the Police Attaches and
Advisers on Jewish Affairs in the Foreign Office and the
diplomatic missions, did not involve any personal judgment
or participation of the Accused.  The distribution of the
Jewish assets was carried out between the states concerned.
They agreed upon the application of the so-called
territorial solution.  A head of a Section is not competent
for the settlement of such a diplomatic arrangement.

Counts 1 to 6: There remains the core of the indictment -
extermination in the extermination camps, shooting by
special Operations Units, deportations, and so on.

In Counts 5 and 6, these offences are classified as crimes
against humanity.  The Sixth Count concerns, in particular,
persecution of Jews on national, racial, religious or
political grounds.  Section 1 of the Nazis and Nazi
Collaborators (Punishment) Law defines the crime of
persecution according to the definition in the London
Charter.  However, it would be erroneous to assume that the
London Charter had given world-wide effect to its
classification of these persecutions as crimes against
humanity.  On the contrary, the London Charter went out of
its way to exclude such an extensive interpretation.
According to the Charter, the facts constituting the offence
are punishable as crimes against peace and war crimes by the
vanquished.  In this connection, an explanatory resolution
was adopted on 5 October 1956, by the four principal powers,
by which the wording was clarified.  This was done by the
amendment of a punctuation mark, namely the replacement of a
semicolon by a comma.  I shall attach a copy of this
resolution to the closing brief.

The Nazis and Nazi Collaborators (Punishment) Law is
likewise restricted, so as to apply to events in the
defeated countries only.  The offence established by Section
1 enumerates the aforesaid grounds of persecution.

What were the actual grounds for the persecution of the
Jews?  A member of the legal profession is unable to answer
this question.  The witness for the Prosecution, the eminent
historian, Professor Baron, likewise was not able to give a
satisfactory reply.  Innumerable letters from all over the
world addressed to the Defence disclose a bewildering
picture of the views held by men.  They reveal a picture of
a sick world.  We need experts, philosophers, theologists
and historians - they ought to carry out research on this

Presiding Judge: Dr. Servatius, I do not know whether this
is relevant, but our section uses the term "crime against
mankind" (enoshut).  You used the expression "humanity"
(Menschlichkeit).  The translation of the term enoshut is
"mankind" (Menschheit).

Dr. Servatius:  Your Honour, the Presiding Judge, we face
here a linguistic problem: In translating the term
"humanity" no distinction is made between "mankind"
(Menschheit) and "humanity" (Menschlichkeit).  The German
language makes a distinction: The first term, Menschheit has
the connotation of space; the other term refers to a feature
of character, Menschlichkeit, an act is "inhuman"
(unmenschlich).  The translation, in this connection, ought
to be, therefore, "humanity" (Menschlichkeit).

Presiding Judge: Your explanations are correct as far as the
English word "humanity" is concerned.  It has two meanings.
But this does not apply to the word used by our legislator,
enoshut.  Enoshut corresponds to Menschheit (mankind) in
German, and we are bound, of course, to follow the language
used by our legislator.

Dr. Servatius:  I had assumed that the term used by the
London Charter had been adopted.  The official (German)
translation of the Charter uses the word Menschlichkeit
(humanity).  However, I think that, after all, the meaning
is the same.

Presiding Judge: Yes, I pointed this out at the beginning.
I had to make this observation in case it should be

Dr. Servatius:  Yes, Your Honour.

The Fifth Count charges the Accused with murder,
enslavement, extermination and other offences, all of them
being classified as crimes against humanity.

Crimes against humanity!  Everybody will agree to that.  But
a member of the legal profession will hesitate.  What
happened is not to be weighed up by the heart of man, but is
the outcome of calculations made by the brain of
politicians.  Heads of state have vindicated the right to
commit these acts, and have actually committed them - and
they are about to do it again.

Presiding Judge: Dr. Servatius - if I understood correctly
what you said in the last sentence - I hope that you are
being too pessimistic.

Dr. Servatius:  I hope that is right.

Counts 1 to 4: At the same time, the Accused is charged with
the aforesaid offences as being crimes committed against the
Jewish People.  In this respect, too, we face problems.  The
meaning of "the Jewish People" is legally not clearly
defined.  Constitutional law and International Law recognize
only the term of a state and the people of a state.  Every
state is at liberty to extend, by way of national
legislation, the meaning of the term "people" as it deems
fit.  It is its natural right to protect those who belong to
its people.  However, if the state extends the scope of
application of its laws beyond its boundaries, it is bound
by the restrictions established by International Law.  As at
the time of the commission of the offence no people of a
Jewish State existed, an offence against such a people could
not have been committed.  The situation cannot be changed
either by way of a legal fiction.

Moreover, even the content of the law is extraordinary.
According to the Convention on Genocide it appears that it
can be considered as a crime against a people.  The legal
definition of "crime against the Jewish People" does not
clearly show what are the facts constituting the offence.
The definition is framed too widely.  It remains unclear
what is the meaning of "extermination," and of a "part of
the Jewish People."  Social and economic boycott and causing
hatred of Jews have their counterpart - which is not
punishable by law - in various kinds of political
propaganda.  Moreover, Germany's economic and social boycott
was included in certain plans of annihilation when these
plans were made, without having been considered a crime to
be punished by death.  Furthermore, it is hard to understand
why, according to the Attorney General's statement, the
destruction and desecration of religious and cultural assets
and values ought to be considered as having been carried out
with the intention to exterminate the Jewish People.

The punishments provided for in the Nazis and Nazi
Collaborators (Punishment) Law exceed, in this respect, the
limits of what is customary under International Law.  This
ought not to be disregarded.

The following comments are made in regard to each of Counts
1 to 4 in the indictment.

The Fourth Count: Prevention of births and sterilization.
The Accused had only indirect contact with the charge of
sterilization.  His subordinate in charge of this matter,
Guenther, received two letters from Himmler's personal staff
in June 1942.  According to one of these letters, the  Dr.
Matthaus biochemical establishment in Dresden, had carried
out these experiments in sterilization.  The second letter
informed Guenther that Professor Klauberg had carried out
experiments in the sterilization of detainees.  The Accused
declares in this regard that he had no knowledge of these
events.  This is corroborated by the following facts: One is
struck by the fact that, contrary to usual practice, both
letters were addressed directly to the subordinate dealing
with the matter, i.e., Guenther.  The Accused's explanation
is that Guenther had probably received special instructions.
In view of the circumstances, this explanation appears to be
credible.  In this respect, I have to remark that the same
subordinate is mentioned also in connection with other
affairs within the medical sphere, namely killing by
gassing, procuring of skeletons.  It is conceivable and
possible that the subordinate Guenther maintained contacts,
beyond his official functions, with Himmler's personal
staff, and had engaged there in activities connected with
the medical sphere.  The measures of sterilization could be
performed only by members of the medical profession.  The
medical practitioners involved in that respect were directly
at Himmler's disposal.  Within the framework of the society
Ahnenerbe (Ancestral Heritage), he had established a special
institute for research which was engaged in experiments.

However, the Accused also had to deal with the legal aspects
of sterilization.  Following the Wannsee Conference, and in
conformity with the resolutions adopted there, laws on
sterilization were drafted.  It concerned persons of mixed
parentage.  In this respect, the driving force was, inter
alia, the Reich Ministry of the Interior.   It proposed
compulsory sterilization.  It appears from the record of the
two further meetings called for the purpose of
implementation, that the Accused could merely take
cognizance of the result of the second meeting, by virtue of
his presence there.  The independent advancement of the
project for sterilization, without the Accused being
involved or associated with it, is adequately proved by the
fact that in Holland the sterilization of persons of mixed
parentage was started independently.

Judge Halevi:  Dr. Servatius, I assume you were mistaken in
choosing your expressions when you said that gassing was
within the medical sphere.

Dr. Servatius:  It belongs to the medical sphere, inasmuch
as it is prepared by members of the medical profession; for
after all, its object is killing, and killing is within the
medical sphere.

It is alleged that the Accused ordered the carrying out of
abortions.  The commander of Theresienstadt, Rahm, declares
that he learned about it from the Council of Elders.
However, this is contradicted by the testimony of the
[first] commander of the camp, Seidl.  But above all, the
allegation that it was ordered by the Accused is
contradicted by the fact that Theresienstadt was under the
control of the Commander of the Security Police and the SD
in Prague.  Orders were given by him, and not by the
Accused.  According to the testimony of the witness Peretz,
the it was the local police who gave the order to perform
abortions in the Kovno Ghetto.  There is no evidence of the
Accused having given such an order.  The Accused is,
therefore, not directly responsible under the Fourth Count.

The Third Count - Crimes against the Jewish People by
inflicting physical and mental suffering, such as
enslavement, starvation, expulsion, removal to ghettos and
transit camps.  As to the charges in detail, I wish to make
the following comments:

Item 3: The persons to be deported were not selected by the
Accused, but this was provided by Article 5 of Regulation
No. 1 issued under the Reich Citizenship Law.  The Accused
had no influence on the enactment of that law.

The orders to carry out the deportations themselves were
given by agencies of the highest rank, in execution of the
policy concerning the Jews which was directed by the Reich.
They were in conformity with the outcome of the Wannsee
Conference, and with the powers Goering conferred upon

Sub-paragraph d 2: The accusation made therein, namely of
participation in the events of the Kristallnacht, has
already been commented upon, when replying to the accusation
of seizure of property.  The Accused did not take part in
these events.

Sub-paragraph d 3: The organization of a social and economic
boycott by marking with the Jewish Star, which is being
imputed to the Accused, was actually the result of
legislative measures.  The police who had been charged with
their implementation, could neither add thereto nor derogate
therefrom.  The situation is explained by the letter of the
Reich Ministry of the Interior which has been produced, and
by various letters emanating from Heydrich.  The marking of
Jews abroad was provided for by higher-ranking agencies, and
carried out in agreement with the diplomatic and military

Finally, the Accused did not act in the domain of
propaganda.  Antisemitic propaganda abroad was within the
province of the Foreign Ministry.  This appears clearly from
the meeting of the Foreign Ministry's Advisers on Jewish
Affairs at Krumhuebel on 4 March 1944.

Sub-paragraph d 4: We are dealing here with the extension of
the application of the Nuremberg Laws to foreign Jews.  This
can hardly be imputed to the Accused.  The relevant
provisions for foreigners within the territory of the Reich
were the Implementing Regulations.  The Accused had nothing
to do with the enactment of that decree.  The application of
these statutes abroad was such a drastic measure that it
could be taken only by higher-ranking authorities.  Such
instructions given by Kaltenbrunner are before the Court.
In this particular instance, the administrative-technical
involvement of the Accused in the preparation of the drafts,
on orders he had received, cannot constitute a basis for the
Accused's responsibility.  The Accused's responsibility
would also be in contradiction to the administrative
structure in the territories in question; even if the Head
Office for Reich Security could actually give directions
through the intermediary of the Accused, their execution was
subject to the approval of the political authorities in
these territories.

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