The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of Adolf Eichmann
Sessions 19
(Part 5 of 5)

Holocaust, Adolf Eichmann, Eichmann trial, holocaust, Jewish holocaust
Q. Did they say that they didn't know how anyone could have thought of establishing such a place there?

A. Where, please?

Q. In Nisko. That they had no knowledge of a so-called new homeland for the Jews to be established there, that it was contrary to proper administration in every sense.

A. I can only describe my personal impression. We got the impression that in Cracow - that in Cracow they knew nothing at all about a camp having been established in Nisko, that they had learned about the establishment of the camp - of the existence of the camp when Professor Eisler received his visa to Sweden in February 1940 and was released from the camp by order from Berlin. I cannot state this as a fact, but this was the impression we had.

Q. I have no further questions to the witness.

Judge Halevi: Were there only men in Nisko?

Witness Burger: There were only men in Nisko.

Q. The families remained in Moravska Ostrava?

A. The families stayed in Moravska Ostrava. But originally the women, too, were supposed to follow a fortnight later.

Q. To Theresienstadt, with the families?

A. With the families.

Q. And to Auschwitz too?

A. To Auschwitz, it was the same with my wife. She was the only one of the family who remained. All the others had been sent with the transports from Theresienstadt.

Q. I don't understand. Your wife, was she the only one to survive or was she the only woman, the only one of the family who survived?

A. The only one of the family who survived.

Q. Did your wife survive Auschwitz?

A. From Auschwitz my wife was deported to Mauthausen and remained alive.

Judge Raveh: When you left the camp, was it entirely empty or did people remain there?

Witness Burger: None of our people remained there. The entire camp was cleared.

Q. No other people remained there?

A. No other people remained in the camp. None of ours. Whether anybody entered the camp afterwards, that I don't know.

Q. At the time this operation was being carried out in Moravska Ostrava on the 17th of October, how many Jews lived in Moravska Ostrava?

A. About 7,000 to 8,000 people.

Presiding Judge: In connection with the deportation to Nisko you mentioned Eichmann several times.

Witness Burger: Yes.

Presiding Judge: Did you see the Accused?

Witness Burger: Yes.

Presiding Judge: Do you recognize him as the same man, can you identify him?

Witness Burger: He was younger and did not wear glasses.

Presiding Judge: Was he the same man?

Witness Burger: Yes, this is the same man.

Presiding Judge: Thank you, you have finished your testimony.

Attorney General: By leave of the Court, pursuant to my statement of yesterday that the proposal submitted by Counsel for the Defence to send an Israeli judge abroad for the purpose of hearing evidence - that this is connected with considerations of policy and security, I am authorized to inform the Court that in our opinion the existing conventions for granting and receiving legal aid in criminal cases are in accordance with law and practice and there is no need for special arrangements in that respect. The Government does not see that it is necessary or possible to ask foreign states for permission to be granted to an Israel judge to enter their territory and hear evidence given under oath by witnesses in matters bearing on this case.

Presiding Judge: You maintain that regulations now in force based on law and practice are adequate for this purpose.

Attorney General: I state again that my proposal submitted by the defence to invite a witness to give evidence in Jerusalem will be considered on its merits, depending of the circumstances. I also wish to stress again that whenever Counsel for the Defence submits a request for a witness whose testimony is relevant to matters in issue here and who does not wish or cannot come to Israel, I shall consent to such witness giving testimony by sworn affidavit or before a judge, in his country of residence. For this purpose the Government will apply existing arrangements with foreign countries.

As for sworn declarations which we requested to submit, I ask leave to add a few words. In view of the decision of the Court to act in the light of the practice obtaining at the Nuremberg Trials.

Presiding Judge: What are you referring to?

Attorney General: I refer to the decision of the Court declaring its readiness to deviate from the rules of evidence in whenever the evidence requested is relative and has probative force. Following this decisive principle, I request the Court to act in line with the procedures of the Nuremberg Military Tribunal and also to the American Military Courts. In Vol. 15 of the Green Series, p. 746 the Court will see that affidavits were submitted and that moreover this practice considerably shortened the proceedings. It was there said that if affidavits had been inadmissible, the Tribunals would have been denied the statements under oath of many important witnesses to the facts.

Presiding Judge: This is a summary of the editor, is it not?

Attorney General: Yes, it is a summary by the editor. [Continues reading]

"...if all available witnesses had been required to testify before a Tribunal rather than to give their evidence through affidavits, the trials would have lasted much longer than they did in fact, and fewer trials would have been held."
Presiding Judge: This is obvious, Mr. Hausner, that it is faster to read out a declaration than to hear evidence.

Attorney General: But I show that this was done, and extensively, not only in a single instance, but to a large extent. May I request the Court to study the passage on page 747 dealing with the subject - a decision by the President of the International Military Tribunal, who ruled that sworn affidavits are admissible initially, and that only at a later stage the matter can be reconsidered should the Court find that the presence of the witness in Court is of extreme importance. On page 841 the Court will find the various discussions regarding sworn affidavits, as well as the decision of Judge Young which I have already mentioned, to accept sworn affidavits, irrespective of the presence or absence of the person testifying. On page 754 ff. the discussion on affidavits of Pfaffenberger, Hoettl and others will be found. The Court will find vigorous objection by counsel for the defence...

Presiding Judge: This has already been mentioned before.

Attorney General: I only wish to draw the attention of the Court to the fact that it was there decided that the defence had to submit a special application stating reasons for its request to summon the witness for cross-examination. On page 765, the Presiding Judge says:

"The Tribunal makes the same ruling in this case as in the case of Pfaffenberger, namely, that the affidavit is admitted in evidence, but that it is open to defendants' counsel to make a motion in writing for the attendance of the witness for cross-examination, and to state in that motion the reasons for it."
The same is stated on page 764 regarding Pfaffenberger, i.e. cross-examination does not exist as a right, but only by leave, when reasons justifying that course are given.

To sum up, I request that the affidavits be admitted as evidence. Should the Court conclude at any stage that it cannot rely on the affidavits, the matter can be reconsidered. It is also possible, as stated by the President of the International Military Tribunal in the same passage on page 747...

Presiding Judge: I beg your pardon, Mr. Hausner. What you have just said is not the practice here. If testimony or evidence has once been accepted, then it is accepted. Are you relying on anything relating to this matter which happened at Nuremberg?

Attorney General: Of course. I cite again the passage quoting the President of the International Military Tribunal, on page 747:

"If, at a later stage, the Tribunal thinks the presence of the witness is of extreme importance, the matter can be reconsidered."
Presiding Judge: No, Sir, you said just now more than that: that if the Court should find at a later stage that these affidavits cannot be used, it will then remove them form the Court records.

Attorney General: No, their admissibility or reliance on them without producing declarants for viva voce examination can always be a subject for reconsideration. In other words, they are admissible when we request their admission. Their weight, their importance, the value which the Court will attach to them, is a matter for reconsideration at any stage. Furthermore, if the Court should think, after receiving further evidence on the issue, that after all the affidavits cannot be relied upon without administering interrogatories or viva voce examination of the declarants, then the Court can also disregard the affidavits completely, or at most attach little weight to them.

At the end of the same passage the President of the International Military Court said:

"I add this: If the defence wish to put interrogatories to the witness, they will be at liberty to do so."

Judge Halevi: That can be done here, interrogatories.

Attorney General: Of course. I suggest to the Defence, if they insist on drawing up an interrogatory, we shall transmit it abroad and the person in question will appear and reply to the interrogators.

Judge Raveh: Through legal aid?

Attorney General: Through legal aid which the Government in question undertakes to extend.

Therefore I repeat my application to admit the affidavits

Judge Raveh: Have you ascertained that also as regards Austria the same procedure is available?

Attorney General: As I have already stated, Your Honour, we have no experience with criminal matters, but from all the information at our disposal, there will be no difficulty in obtaining legal aid from the Austrian Government in the same manner as it is given by us.

Presiding Judge: Dr. Servatius, do you wish to add anything?

Dr. Servatius: The Nuremberg arrangements were merely measures of expediency in order to avoid protracted proceedings. Most of the witnesses were imprisoned in four different zones; in arranging for their appearance much time would have been lost. This becomes obvious from the fact questionnaires were drawn up and presented to the witnesses who were in prison. It seemed to be an adequate arrangement, provided there were no special grounds to the contrary. In my opinion here there is no such case of emergency and I am convinced that the Court wishes to examine requests with great care and is prepared to do so.

I think that judging from what was initially stated by the Attorney General, the matter will not arise in fact, since he has declared his readiness to consider any request when submitted. I do not want a decision in theory, but a decision in every instance. I would request a clarification of one word which he used. He said: "If a witness does not want to appear or is unable to do so". What does his "being able" mean - that he is not permitted to appear and therefore unable to come, or that he is sick or cannot come. On that I would like to have an explanation.

Presiding Judge: [to the Attorney General] Are you ready to add anything on this question?

Attorney General: Certainly. I shall put it this way: If the witness can by his evidence assist the Court in its final judgment, that it to say if his evidence is relevant, and because for any reason - whether he will not obtain a visa for entering Israel, or because he apprehends that if he should come he will be put on trial, the witness is unable to come or does not wish to come, or even if his inability is due to frailty or old age or he is unable to travel for any reason, then we shall be ready to put in motion arrangements which I mentioned, provided that the evidence has relevancy.

Dr. Servatius: I have been given to understand that in the first place it depends on the desire of the witnesses if they are unable to come, whether they are ill, or they are not granted a visa.

Presiding Judge: For whatever reason, be it depending on them or on others, so I understand the Attorney General.

Attorney General: To that I would say that when the Court has considered the request and deems it to be essential, I think that upon recommendation by the Court a visa would indeed be granted. This would clear up the matter.

Presiding Judge: I understand that the arguments on this issue have now been concluded. As I have already announced, we shall give our decision on the matter tomorrow morning.

State Attorney Bar-Or: If possible I would like to draw the attention of the Court, after the evidence we have just heard, to a certain passage in the evidence of Wisliceny, which has been admitted in the meantime and marked T/85. This is the report of Wisliceny written in cell 106, in Bratislava. On page 3 of the transcript of T/85 as submitted there are the following sentences: "Eichmann who had shortly before entered on his duties in Berlin, conceived the plan to deport the Jews from the territory of the Reich, from the Protectorate and Austria also to Poland, on the assumption that the Polish territories would sooner or later assume the status of independant statehood. To this end he hastily organised a transit camp in Nisko near the river San and began deporting Jews there from Vienna, Brno and Moravska Ostrava."

Presiding Judge: If I am not mistaken, the Accused himself mentioned the Nisko camp in his statement.

State Attorney Bar-Or: Yes, that is so.

Presiding Judge: Are we again to hear the testimony of a witness?

State Attorney Bar-Or: Before concluding this subject, I have to submit a number of documents bearing on the Protectorate of Bohemia-Moravia and one more witness on the matters of Nisko and Lublin. I suppose that tomorrow, within an hour and a half, all this can be concluded.

Presiding Judge: And afterwards?

State Attorney Bar-Or: After that the Attorney General will take up a further subject.

Presiding Judge: We shall close now. Court will adjourn until 9 o'clock tomorrow morning.

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