The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of Adolf Eichmann
Session 57
(Part 6 of 6)

Q. Did Mr. Shertok depend solely on you for information, or do you believe that he also had contacts with the Jewish Agency and other authorities with whom you spoke? He was indeed completely isolated if he had to rely solely on your assertions.

A. Mr. Shertok was the leader of the Jewish Agency's Political Department; you must ask Mr. Shertok from whom he got additional information.

Q. Thank you. I have no further questions.

Presiding Judge: Mr. Hausner, please.

Attorney General: I have only two questions. Mr. Brand, when was it that you met Becher in Bremen and Paris?

Witness Brand: That was in 1954 or 1955. I do not remember the precise date; I would have to look it up in my old diaries. Yes, now I know it exactly; I can specify the date: I met Becher on the same day on which the judgment in the Gruenewald trial, the judgment of the lower court, was given. Specifically, that was the day on which I received, via airmail, the newspaper containing this news.

Q. Now another question. When you met with Mr. Shertok in Aleppo, do you recall that he posed three questions to you, namely: What, in your opinion, would happen if you returned with a positive response, what would happen if you returned with a negative response, and what would happen if you failed to return. Is this correct?

A. That is correct.

Q. What was your answer to the question: "What would happen if you returned with a positive response?"

A. I believe my reply to him was that, if I returned with a positive response, then a number of Jews would be released immediately. Perhaps - I don't know the minutes - because of the anxiety I felt in the presence of the Englishmen, I could have said from ten to twenty thousand Jews. I do not know what number I specified; in any case, it was not an overly large number, in order to avoid difficulties. Perhaps it was precisely at this point that I said it.

Q. Thank you.

Presiding Judge: At this stage, we would like some time to study the documents which were presented today. Afterwards, we shall see if the judges have questions to the witness. We request that the witness reappear tomorrow morning at 9:00 a.m., and then it will be clear whether there will be further examination of the witness.

Attorney General: I have a request at this stage, if we are continuing. Since the Court has ruled that noon today is the deadline or time limit for submitting material which may entail applications for hearing witnesses, I should like to keep within that time limit and inform the Court that we have before us another expert opinion by Dr. Franz Guenther- Serafim of Goettingen University. It was presented to the court in Ulm on 1 July 1958. I have a certified copy of that opinion. It is also mentioned on page six of the Ulm judgment; I have presented a certified copy of it to the Court.

Presiding Judge: Was it presented as a legal authority?

Attorney General: Yes, in the preliminary argument. On page five infra, six supra, of the judgment, the Court will find that this opinion is part of the material upon which the court in Ulm relied. This matter is significant, since Dr. Hans Guenther-Serafim, a lecturer in history at Goettingen University, was asked the following question by the court in Ulm, which also tried persons for offences involving executions in wartime: "Were rank-and-file SS men, or their leaders, who were active in purge or extermination operations, able to refuse to carry out such orders without suffering bodily harm or endangering their own lives?"

Presiding Judge: In what field is this professor an expert?

Attorney General: He is a professor of history who specializes in the Nazi period. He collected material, precedents, which he lists, and on which the court subsequently relied.

Presiding Judge: What kind of precedents?

Attorney General: Precedents of cases in which, to his knowledge, persons refused to execute orders of this kind or requested to be released from duties which entailed bloodshed, and what happened to them.

Judge Raveh: Does this mean that he conducted investigations and took evidence?

Attorney General: He collected historical material, and he recorded the details of each case.

Judge Raveh: Does this mean that he interrogated witnesses?

Attorney General: No, he examined documents and people. But, in the main, he was engaged in historical research based on documents and on material which was before various courts, including international tribunals. He collected all the available material. To the best of our knowledge, this is perhaps the most exhaustive expert opinion, anyhow within our knowledge, on this subject. The German court also required expert opinion in regard to this question, since it was difficult for it to refer to the evidence which is spread over a wide field.

Presiding Judge: But there they are much freer in regard to the acceptance of expert opinions than in our Courts.

Attorney General: I assume so, Sir. In any event, I request that this expert opinion be accepted as an exhibit. Should Defence Counsel request that Dr. Hans Guenther-Serafim be summoned here as a witness - and I stress his first name here, since there is also another Serafim who is mentioned in several of our documents - I should have very different things to say about him than about this man. We have ascertained whether it is possible to bring him here. The response we have received is that Dr. Serafim is presently recuperating from an illness and will not be able to come here before approximately the middle of next month.

Judge Halevi: The month of June?

Attorney General: June - if by then he will be allowed to do so. If it will then still be practicable, I shall bring Dr. Serafim here at the first opportunity. If Defence Counsel agrees, we can comply with Dr. Serafim's own request that he be questioned at his present place of residence in Austria; he is convalescing in the Tyrol. In any event, should Defence Counsel so desire, he shall certainly be accorded an opportunity to question Dr. Serafim. But I request that the document be admitted at this stage.

Presiding Judge: Again, as to the content of his expert opinion: He is not going to testify, as far as I can see, about anything which he himself heard from other SS personnel, only about his documentary research. Why not present to us the documents which he researched?

Attorney General: Not all of those are in our hands, Sir. He has collected them.

Presiding Judge: Really, we are straying far indeed from the source itself, from the best evidence, which we, after all, always strive to secure.

Judge Raveh: You said he also took evidence.

Attorney General: He spoke with people.

Judge Raveh: Does he remember the names of the persons with whom he spoke?

Attorney General: I believe so.

Judge Raveh: Are they living or deceased? Where can they be found?

Attorney General: I must say that, at this stage, I wished to ask the Court to accept this expert opinion; if Defence Counsel has any reservations or doubts about this, let us hear him.

Presiding Judge: I suggest that our rules of evidence not be forgotten completely. Not completely.

Attorney General: Your Honour, I shall do my utmost to follow the guidance of the Court. But I trust that the Court will also take into consideration the situation of the Prosecution as well.

Presiding Judge: Quite right.

Attorney General: We are not exactly in the same country in which primary evidence and the whole material can be found. However, if we have a concentration of material in a form which was suitable for a German court, I would request that an Israeli court accept it as well.

Judge Halevi: Does this perhaps have some affinity with the question of how to prove a usage, something which was a usage at a given time under that regime?

Attorney General: Correct. And if a specialist investigated this matter, it seems to me that it is possible for expert testimony to be received.

Presiding Judge: All right, let us hear Dr. Servatius, please, in regard to this question.

Dr. Servatius: Your Honour, the judges have already given expression to the objections to the acceptance of the document, and I concur with this view. However, there is an additional consideration concerning the qualifications of this specialist. He is described merely as a lecturer; he is, therefore, not a professor or any type of competent member of a university. Moreover, this document deals exclusively with shooting squads, whereas here our concern is with another matter. The Accused is not being accused of participation in shooting squads, but rather of being part of a bureaucratic apparatus, where the issue is entirely different, within which he was enmeshed with superior authorities who influenced him. This is very different from service in shooting squads who only have a junior officer above them.

Presiding Judge: I wish, first of all, to inquire of Dr. Servatius: What, briefly, in view of what you have just said, is your position in this matter?

Dr. Servatius: I object to acceptance of the document.

Presiding Judge: Thank you.

Attorney General: Perhaps, before the Court makes a ruling without studying the document in its entirety, may I request that the Court consent to look only at the preface, to help clarify the nature of the problem?

Presiding Judge: I do not think there would be anything prejudicial, if you presented us with the document as a whole for us to examine. We shall know how to disregard its contents, should we decide not to accept it; it will make matters easier for us.

Attorney General: Certainly; here is the document, with the decision of the Court pending as to its admission.

Presiding Judge: It will not be marked as evidence for the time being.

Attorney General: I understand that Serafim is a serious researcher. Obviously, there can be differences of opinion in regard to this, but I understand that he has received awards for studies which he has carried out.

Presiding Judge: That will certainly not influence the decision of the Court.

Attorney General: If, however, a German court turns to him as an expert, perhaps, all things being considered, this gives him recognition as an expert in a matter concerning which he is requested to give an opinion.

Presiding Judge: We shall study this matter and will give a ruling; you may take the photostat, since we have three copies here.

Attorney General: I now ask my colleague, Mr. Bach, to submit a number of documents.

State Attorney Bach: Your Honours, to begin with, may I draw the attention of the Court to several excerpts from documents which have already been submitted, and which have a bearing on testimony which has been heard to-day. First of all, I wish to draw the Court's attention to what is said in the statement of the Accused, Document T/37, on page 1090. He was there interrogated concerning the proposal in the same deal that was proposed by him to the witness Joel Brand, and he was asked who initiated this proposal. And then he recounts the occasion when he and Becher were summoned to the Reichsfuehrer, and he states: "I myself naturally could not accept a responsibility of this kind on my own. I, therefore, had my instructions, and only Himmler could give such instructions to me. Today I no longer remember who actually was the first to think of it, whether it was I, Becher, or Himmler himself, or whether it crystallized somehow by itself."

In the second excerpt, Your Honours, I should like to quote from the interrogation of Kurt Becher; this is Exhibit T/689. First of all, on 7 July 1947, on page seven of this interrogation, Becher recounts how he suggested this deal to Himmler, and he said that he got to know that the Jews could deliver goods and money in exchange for the liberation of Jews from Hungary, and that Himmler asked him: "What will you be able to get from these people?" and that he said that he thought he could get a significant quantity of goods. Then he said that Himmler told him: "Take what you can get; I am not thinking at all of doing anything against it; in German: "...etwas dagegen zu tun' then disappear." ("Nehmen Sie was Sie kriegen koennen. Ich denke gar nicht daran was dagegen zu tun, and dann verschwinden Sie."

Judge Halevi: Does dagegen mean "in return for"?

State Attorney Bach: That is not altogether clear; there are two possibilities. Either he was saying: "Take what you can get; I will not oppose you - and after that, disappear!" Or it could mean: "I'm not thinking of giving anything in return."

Judge Halevi: Was this meant to be ambiguous? Himmler certainly would not speak in an equivocal manner with one of his subordinates. Apparently there was only one intention: Not "I shall not oppose," but rather, he must have been giving an assurance, namely: "I am not going to give anything in exchange."

State Attorney Bach: If it is at all possible to understand this in two ways, the next excerpt explains the matter in a form which is completely clear. This is the supplementary interrogation of Becher, dated 2 March 1948. And here, on page two, he again recounts the deal in question and says: "Himmler told me: 'Take everything you can get from the Jews; promise them whatever you want. As for what we shall carry out, that's an entirely different matter'." Afterwards, Your Honours, in the same interrogation, Becher describes his meeting with Schellenberg, a confidant of Himmler's. He says that later on, in January 1945, they spoke about this deal. The passage appears on the fourth page of this interrogation dated 2 March 1948. Here Schellenberg said to him: "Your truck deal is nonsense; I will make a political deal." This was in the beginning of January or February 1945.

Presiding Judge: Was Schellenberg from Counter-Intelligence, Office Six?

State Attorney Bach: Yes, but he was also very close to Himmler in the final period. This is also evident from the testimony; he says that this was at the beginning of 1945. Becher told him: "Brigadefuehrer, I don't understand this." I was afraid that this deal could fall through, and I asked him: "What political deal, Brigadefuehrer?" He replied: "I want to improve or prepare the ground abroad for the Reichsfuehrer; in a fortnight reports and articles about the Reichsfuehrer will be published in the eight largest American newspapers, which will enable him to appear on the international arena at one stroke." Becher added: "I told him: `Brigadefuehrer, I don't believe it'." The same subject reappears in the next interrogation, dated 22 June 1948, on the last page. Here he recounts another conversation with Schellenberg. Again the latter said: "In the next fortnight, there will be positive articles about the Reichsfuehrer, because of my efforts." He wanted to create a different atmosphere for Himmler in the international arena; this was a very serious matter.

As for the intentions of Himmler, and also of Becher, there is additional confirmation later on in Kasztner's account, and also in the meetings of Becher and MacCallan in Switzerland. But at this point, I wish merely to refer to these two excerpts and another from Wisliceny's account, in which he comments about Kasztner's account. In the reprint, this is Exhibit T/1116. He states the following in reference to Brand: "I requested Brand to get some kind of result from Istanbul, even if he had to submit a forged document or had to give a promise which it was impossible to fulfil." And he added: "I knew about Eichmann's intention to sabotage by means of a fait accompli, i.e., deportations, the negotiations ordered by Himmler." This appears on page nine of our reprint in German, or on page five of the original; and he said: "How important this game was for gaining time can be seen in the light of the struggle over the deportations from Budapest." I shall be returning to this when we will deal with the struggle for the Jews of Budapest.

Presiding Judge: We shall now adjourn; the next Session will begin at 3:30 this afternoon.

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