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Last-Modified: 1999/05/28

Session No. 40

29 Iyar, 5721 (15 May 1961)

Presiding Judge: I declare the fortieth Session of the trial

Perhaps we may, after all, reverse the order of things? I
notice that Judge Musmanno is present. Perhaps it would be
more convenient to complete his evidence first, before we go
on to the second matter?

Attorney General: As the Court pleases.

Presiding Judge: Have you meanwhile settled the matter?

Attorney General: Yes, Your Honour. The position is as
follows: Two of the items which I mentioned before noon are
contained in the documents, and I would ask the Court to
admit them. The others are contained in the evidence and we
shall endeavour to secure them before the end of the trial,
and to submit a copy of the transcript relating to those
witnesses, in conformity with the decision of the Court.

Presiding Judge: Does that mean that the question has been
settled for the time being?

Attorney General:  I shall not question the Judge thereon,
as the Court has directed.

Judge Halevi:  Which two items were found in the exhibits?

Attorney General: The two items were found in documents in
our possession.

Judge Halevi:  Which have not yet been submitted?

Attorney General: In documents which have not been yet
submitted, but which I intend to submit. But before I do so,
perhaps I may be permitted to ask Judge Musmanno two further

Presiding Judge: Go ahead.

[Witness Musmanno: takes the witness stand.]

Presiding Judge: Judge Musmanno, you are continuing to
testify under oath.

Attorney General: Judge Musmanno, you mentioned in your
evidence this morning, the name General Koller. May I just
clarify this? General Koller, I believe, was the Chief of
Staff of the Luftwaffe.

Witness Musmanno:  That is correct, Mr. Attorney General.

Q. And he was never put on trial after the defeat of Germany
in the Second World War?

A. He was not accused of crimes.

Q. With regard to two of the people who were tried by you in
the Einsatzgruppen Case, I have here the document book
compiled on behalf of the defendant, Heinz Jost. I have here
an affidavit submitted by Dr. Werner Best, who was the
representative of the German Reich in Denmark at one time,
and he testified that Jost did not want to go on with the
slaughter of the Einsatzgruppen. Perhaps I had better submit
the whole book of documents. [He hands the witness the book
of documents]. Do you remember whether this document was
submitted to you in the course of the trial?

A. Yes, I do remember very definitely that documentation
being presented to me on behalf of the defendant Heinz Jost.

Q. Do you remember that this was the document - that this
was an affidavit by Best?

A. May I ask you if it was with regard to his being
withdrawn from the Einsatzgruppen because he could not carry
on these inhuman measures?

Q. Yes that's it.

A. I remember that very well.

Presiding Judge: Is Dr. Best still alive?

Attorney General: We have no information on this. We know
that he was brought to trial, but what happened to him after
his release - this we do not know. He was not executed.

Presiding Judge: In what case was he brought to trial?

Attorney General: He was brought to trial in Denmark, not in

Presiding Judge: Dr. Servatius, what information do you have
about Dr. Best?

Dr. Servatius  I know only from the press that he is in
Germany, and I have been told that because of the trial he
went abroad for a short while.

Presiding Judge: Dr. Servatius, do you have anything to
observe in connection with the submission of this affidavit
of Dr. Best?

Dr. Servatius:  Yes, I should like to reserve for myself the
right to examine this witness in Germany. I shall have to
locate him and to ascertain whether he has returned home.

Attorney General: I understood, Your Honour, that all the
material on the Einsatzgruppen has been admitted into the
record, with the consent of Defence Counsel.

Presiding Judge: That which is in the Green Series.

Attorney General: Only that?

Presiding Judge: So I understood. This was agreed upon.

Attorney General: I understood that it related to all the
material that is included.

Presiding Judge: Perhaps it is necessary to examine the
record. What I do remember is that we were speaking of the
fourth volume of the Green Series. This may possibly be by
chance, but it seems to me that this is a fact. At any rate,
Dr. Servatius has asked to reserve his right to take the
evidence of Dr. Best.

Attorney General: That right will be reserved to him.

Presiding Judge: Decision No. 31

We admit the affidavit of Dr. Best while preserving the
right of Defence Counsel to apply to examine the witness,
Dr. Best, on his part. [To Attorney General] Out of all this
collection are you only asking for this? [Points to a
particular document].

Attorney General: I do not want to separate the document
from the whole collection - it is preferable to submit it in
its entirety.

Presiding Judge: This document is marked T/687.

Attorney General: And now, Judge Musmanno, I have another
book of documents, No. 1, which was submitted on behalf of
another accused who appeared before you - the accused Franz
Alfred Six. Do you remember it?

Witness Musmanno:  I remember that accused very well.

Dr. Servatius  Your Honour, the Presiding Judge, this is a
witness who has already been summoned to give evidence
before this Court. I believe that it would not be proper to
listen to his affidavit here, but it would be possible to
show him his affidavit for his comments when he appears as a

Attorney General: I was about to submit here not the
affidavit of Dr. Six but an affidavit which Dr. Six used for
his defence in his own trial. This is the affidavit of Karl
Burmeister, a SS Sturmbannfuehrer, who was under arrest when
he made his statement.

Presiding Judge: Is Karl Burmeister still alive?

Attorney General: I have no information on that. He also
does not appear on our list of war criminals, so that we do
not know what happened to him.

Presiding Judge: Dr. Servatius, do you know whether he is

Dr. Servatius  I do not know this man. In his case, too, I
reserve my right to hear him under examination.

Presiding Judge: The same Decision will apply to him as in
the case of Dr. Best.

Attorney General: Judge Musmanno, perhaps you recall an
affidavit in the Book of Documents No. 1, which was
submitted for the defence of Franz Alfred Six, who was
charged before you, an affidavit of Karl Burmeister, which
describes what happened to Six when he did not want to be in
the Einsatzgruppen?

Witness Musmanno:  Yes, I remember.

Q. Would you please tell the Court briefly what is contained
in this affidavit?

A. [The document is shown to the witness]. I'm sorry. I
think it is in German. I do not read German that well. I

Q. But do you remember the general tenor of the affidavit?

A. I remember very well what the episode was and what the
documentation said...

Q. What did it say?

A. Well, it said that Dr. Six didn't feel that he was
capable of carrying on as a leader of the Einsatzgruppen. He
was the head of Vorkommando Moskau (Advanced Groups Moscow).

Q. Vorkommando Moskau?

A. Yes. And he endeavoured to be relieved. And because of
his constant complaining that he couldn't go on with this,
he was relieved and brought back to head Amt VII in the RSHA
and thus he was still in the SD - and he still didn't like
that and made further complaints and, finally, he was
allowed to withdraw from that and he returned to his
professorship at the University of Berlin.

Presiding Judge: This document is marked T/688.

Attorney General: This would be a good opportunity, now that
the evidence has been concluded, to submit a document which,
while it has no connection with the witness, nevertheless is
connected to the problem we have touched upon.

Presiding Judge: But first of all let us hear the cross-
examination of the witness by Dr. Servatius.

Please, Dr. Servatius, do you have any questions to the

Dr. Servatius  Sir, you declared that you spoke to various
people about the problem of responsibility for the
persecution of the Jews.

Witness Musmanno:  I did not quite catch that. It was more
like a statement than a question.

Presiding Judge: Well, this was not a question - it was the
introduction to a question  in the form of a statement.

Dr. Servatius  What did the Reichsmarschall of the Greater
German Reich declare on this subject - did he say after all
that Eichmann was the man who committed these acts?

Witness Musmanno:  Hermann Goering did say that Eichmann was

Q. All right. Did he declare that he himself bore no

A. He said that he did not know that the programme of
persecution of the Jews and the annihilation of the Jews had
reached the terrible proportions which were referred to in
the press, and then he said that the persons directly
responsible for the extermination of the Jews to the extent
that was reported were Hitler, Bormann, Goebbels, Himmler,
Heydrich and Eichmann.

Q. So that he wanted to evade responsibility only so far as
the extent of the results was concerned?

A. I don't know what was in his mind. I have given you what
he said to me. If I gather from your questions, Dr.
Servatius, that this reply was intended to exculpate
Goering...I would like your question to be a little more

Q. Did the Reichsmarschall try to shake off any
responsibility for these matters and place it on a small
section head?

A. He did not refer to Eichmann as a small official. On the
contrary, he made it very clear that Eichmann was
all_powerful on the question of the extermination of the
Jews. He went into that at great length, that Eichmann had
practically unlimited power to declare who was to be killed
among the Jews, chronologically, and by segment of
population, what countries geographically and throughout.

Presiding Judge: Yes. Now as to the other part of the
question, did Goering in this way try to evade or to deny
his personal responsibility?

Witness Musmanno:  If I take from this question that Goering
was endeavouring to clear himself of responsibility for
criminality by accusing another of that crime, it is very
obvious that he did not succeed because he accused Eichmann
and he was sentenced to hang, and escaped the noose only by
taking poison.

Dr. Servatius  Did he tell you that on 31 July 1941 he
ordered Himmler and Heydrich to bring about a Final Solution
of the Jewish Question within the German sphere of influence
in Europe as it says here in the Nuremberg Judgment?

Witness Musmanno:  I don't remember whether he told me that,
but of course it is true. But the instrumentality through
which this programme was to be carried out was Adolf
Eichmann. He was the man who was to determine in what order,
in what countries the Jews were to die.

Q. You spoke subsequently to the former Minister of the
German Reich, Ribbentrop?

A. I did.

Q. If I understand you correctly in your testimony this
morning, it was Eichmann who pressed Ribbentrop to carry out
his task and that Eichmann was the one responsible?

A. He did more than that. He said to me that Eichmann
influenced Hitler. Of course, I'll be frank and say that I
did no accept that, because I could not conceive of anyone
influencing Hitler any more than one could influence a
belching volcano. Ribbentrop was a cringing sycophant of
Hitler and attempted to defend him, indicating and spreading
vociferously that Hitler was not in the wrong. And he
regretted so much that Hitler had made the mistake of
putting so much power into the hands of Adolf Eichmann.

Q. Did you actually believe Ribbentop? Did you believe that
what Ribbentrop said was true?

A. I disbelieved him when he said that Eichmann influenced
Hitler. That to me seemed nonsense. But I did believe him,
and there was no doubt whatsoever in my mind, that Hitler
had the utmost faith in Adolf Eichmann and put into his
hands through Himmler this programme of the extermination of
the Jewish People to which Hitler had referred in his speech
in the Reichstag in 1939.

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