Dr. Servatius: I am not aware exactly how long it was
after that. After all, the preparations in this matter
must have taken a certain time. Anyhow, there is no doubt
that these were the persons whom Veesenmayer and
Winkelmann.had requested.
However, the Accused’s lack of responsibility is clearly
brought out by the report of the Secretary at the Swiss
legation, Dr. Breslauer, made at the time of the events,
and not afterwards. Dr. Breslauer certainly would not have
missed the opportunity to mention this notorious main
culprit. The indignation expressed in respect of this
march after the War by the persons involved, Winkelmann
and others, is probably connected with their desire to
exonerate themselves.
The testimony of the witness, General Juettner,
manifestly shows that Winkelmann dodged his
responsibility. He pretended that he did not have
anything to do with Eichmann, although he was his
[Eichmann’s] superior.
Justice Agranat: Was Winkelmann or Mueller the Accused’s
superior?
Dr. Servatius: In Hungary, he was subordinate to Geschke
and Winkelmann. Like any other person posted abroad, he
remained subordinate to the heads of his office in Berlin,
to which he actually belonged. This may perhaps be better
explained by the relationship existing in the military
hierarchy, which is more familiar to us. A paymaster
receives his orders for payment from the Quartermaster’s
office; but, on the other hand, he is subordinate to the
commander of the regiment or the battalion, and if he
wants to carry out something, he has to be ordered to do
so. The same applies here, so that the commanding officer
was the Higher SS and Police Leader, Winkelmann.
Justice Silberg: Are you relying on the testimony of
General Juettner?
Dr. Servatius: Juettner stated that he had asked
Winkelmann and learned from him that the Accused was the
person responsible. However, when Winkelmann was examined
he stated that he could not remember having claimed that
the Accused was responsible, nor having mentioned his name
at all.
Justice Silberg: But Juettner stated: “I asked who is
Eichmann. Winkelmann explained to me that he is a Section
Head in the RSHA and not subordinate to him, Winkelmann.”
Dr. Servatius: However, it has been proved beyond any
doubt that he was subordinate to Winkelmann. That was,
precisely, a false statement made by him to exonerate
himself.
Justice Agranat: I would like to clarify the question of
authority. The Higher SS and Police Leaders were
subordinate directly to Himmler, as far as I understand.
Did they belong to the RSHA?
Dr. Servatius: In my opinion, they did not.
Justice Agranat: Therefore, the officers of the RSHA, as
well as the Higher SS and Police Leaders and the Accused,
were subordinate to Heydrich, to the Head of the RSHA, or
to Kaltenbrunner. But were the officers of the RSHA
subordinate to the Higher SS and Police Leaders, or were
there two parallel entities which kept a watch on each
other? In other words, was the Accused actually
subordinate to Winkelmann, or was he subordinate to the
Head of the RSHA? Winkelmann was in Hungary as Himmler’s
representative.
Dr. Servatius: He was, at the same time, also attached to
the Embassy. A document has been produced, containing
instructions for the exercise of his functions, according
to which he was in charge of Jewish affairs at the
Embassy. Winkelmann denies this. He says that he had no
knowledge of such instructions. In Hungary, where the
Accused had been posted, the Accused was subordinate to
him. Of course, as before, instructions were sent from the
RSHA to the Section Heads and Advisers abroad.
At all events, whether Winkelmann was the superior or not,
he was a Higher SS and Police Leader. He was empowered to
intervene and was bound to do so. He was entitled to give
orders to every one of his subordinates, but nothing
actually happened. It is my impression that it is not the
Accused who wants to exonerate himself, but it isthe
generals who want to do so. The Accused was believed to
be dead. Nobody thought of his possible reappearance. It
was easy to make him the scapegoat.
I now wish to refer to the Brand Operation and the “ten
per cent clause.”
President Just a moment, Dr. Servatius. A document has
been produced, T/1216. The Appellant writes to his office,
telling them that he is concerned because the German
Embassy in Hungary might intervene against emigration,
contrary to the consent which had been given. What is your
explanation of this exhibit? Why would the Accused wish
to inform his office of his concern that the German
Embassy in Hungary might adopt a stand against permitting
emigration? I think, this matter is referred to in
paragraph 155 of the Judgment.
Dr. Servatius: This may, perhaps, be explained by the fact
that the heads of the offices involved had some
differences of opinion, namely the RSHA headed by
Kaltenbrunner, and, on the other hand, the Embassy. There
are various letters bearing evidence of these differences
of opinion. Possibly, the Accused had taken his stand in
these differences and reported thereon.
Justice Silberg: You are mistaken. Exhibit T/1216 is
addressed to Guenther, and the Accused informs Guenther
that steps have already been taken to ensure that the
Embassy should not do anything to delay the emigration. He
does not write to Winkelmann, he does not write to the
Foreign Ministry. He writes to his subordinate, Guenther,
to inform him that he has taken steps to ensure that the
Embassy, too, will not interfere. Therefore, it seems that
the explanation is not quite logical, unless you are able
to explain it.
Dr. Servatius: I don’t think I have been explicit enough.
The letter was sent to Berlin where Guenther was acting as
the Accused’s deputy, and there Mueller and Kaltenbrunner
were one party to the dispute, and the Embassy was the
other. Now, they corresponded with each other on the
subject of that situation and on the measures which the
Embassy would take.
President: What is not clear, Dr. Servatius, is that if
the duties of the Appellant were restricted to matters of
transportation, and that was also the function of the
Section, why should he have been concerned that the German
Embassy in Hungary had adopted a stand against emigration?
Was it his business?
Dr. Servatius: That is correct, Mr. President, but where
masters quarrel, the servants will also take part. It
looks as if in this case that is what happened.
President: I asked this question because the Appellant’s
activities outside matters of transportation are shown in
various documents signed by him, and not only in Hungary.
This happened in connection with Bulgaria, and in
connection with Norway, where he complains of the
interference of the Swedish Government; not only in
Hungary.
Dr. Servatius: But in my opinion, these were always cases
in which the interference eventually had an influence on
the transportation. After all, trains had to be provided,
timetables drawn up, and if difficulties arose in the
transportation, he had to find the reasons.
President: Does this apply also to his intervention, to
his letter to the Foreign Ministry in connection with
Romania, in which he transmits secret information on the
proposed emigration of one thousand children to Palestine,
and urges that appropriate steps be taken to prevent it?
Does this explanation apply also in this case? There are
two letters, therefore, in which he transmits to the
Foreign Ministry secret information on the organization of
Jewish emigration from Romania, and he urges that it be
prevented by all appropriate means. Is this also because
of difficulties of transportation?
Dr. Servatius: No. But the general instructions, which
have been submitted, and which were drawn up by the
highest political leadership – that is by Himmler, and
this was also the opinion held by the Reich – state that
emigration abroad is prohibited and must be prevented.
President: But what has that got to do with him?
Dr. Servatius: He had no authority in these matters and
did not need to involve himself in them.
Finally, I shall refer to the Brand Operation and the “ten
per cent clause.” The District Court found that it was
only after he had perused Joel Brand’s book that the
Accused adopted Brand’s description of the advance
delivery of one hundred thousand Jews, and that he used it
for his own benefit. In my view, this is illogical. It
would have been meaningful only if the Accused had made
use of this in order to show that it had been his
intention to save these Jews for humanitarian reasons. But
the Accused did not rely on this motive. Therefore, there
is no basis for the Court’s assumption. The Accused was
induced by his correct instinctive aversion to Becher who
knew how to exploit the situation arising from the
imminent collapse, by saving Jews and making financial
transactions. On the other hand, it is difficult to
understand how, according to the Court’s assumption, the
witness Brand and his wife arrived at this extraordinary
clause. Brand told me, a short time ago, that this could
not have been a mistake, and that all persons
named in his book could affirm that he stressed again and
again the importance of this clause. He told me that the
persons named in the book could confirm that. But he also
told me that he had submitted reports and that one of
these reports is in the file of the Kasztner trial. In the
meantime, I have filed an application to append this
report from the file of the Kasztner trial to the record
of this trial here. Should it appear from that report that
the clause did exist, I shall be able to waive my further
application to examine the witnesses. If, on the other
hand, the report will not enable us to arrive at a clear-
cut conclusion, my application to examine these witnesses
will stand accordingly, and I repeat my application.
The entire matter could be discarded, for it caused
neither advantage nor damage and is irrelevant to the
Accused’s criminal responsibility. However, the Accused
is saddled with that dirty business for which the words
“blood for goods” have been coined. With respect to the
witness Becher, the commercial motivation is disregarded,
and in exhibit N/84, which has already been mentioned,
Wagner, a Foreign Ministry official, was able to propose
the emigration of Jews against considerable recompense,
without causing too much fuss.
The propaganda has persecuted the Accused outside the
framework of this trial and wrongly stigmatized him.
Allegations made in this way have to be disregarded.
Moreover, it is alleged that the Accused was glad that the
operation failed. This is Hansi Brand’s impression.
However, this impression is countered by the fact that the
Accused could not have rejoiced, for the reason that
through that failure he had been beaten by his rival,
Becher.
A further utterance, allegedly made by the Accused, is
relevant: “The mills of Auschwitz shall continue to
grind.” The Accused has denied, and for good reasons,
having made this statement, for he had no authority in the
camps. The Accused claims to have said, on the contrary:
“The deportations will continue; I cannot change anything
in that respect. Therefore, decisions have to be made in a
hurry.” If the witness Mrs. Brand was mistaken in the
matter of the ten per cent clause, she may have been
mistaken in the second matter as well. Seventeen years
have passed since the event. I have now come to the end
of this part of the appeal. I have confined myself to
arguing the most important
issues and refer, as to details and further arguments, to
the written grounds of appeal filed in this Court.
The summary of the material submitted in the trial by the
Judgment of the Court of First Instance, has clearly
emphasized the central issues. This has also enabled the
Defence to become aware of uncertainties and to try to
explain them. The Supreme Court now has additional and
better ways to find out what actually happened and to
review the Judgment.
The last ground of appeal concerns the measure of
punishment.
The District Court has imposed the death penalty. It has
not exercised the power – which it affirmed – to impose a
lesser penalty. The Defence requests that consideration be
given as to whether the punishment is not excessive. The
Court will have to consider again the argument that the Accused acted
upon orders from his superiors, as an agent of the state.
In this respect, I refer to the basic conception of the
Hague Rules on Warfare on Land.
The basic premise of these rules is that the state alone
can be held responsible for the acts of its agents and
recipients of commands. Up to 1914, this was the view held
unanimously by all states. Since one group of states has
become predominant, doubts as to the soundness of this
opinion to the detriment of the vanquished have been
raised. Today, no certainty exists as to how a citizen has
to act. Should he obey or resist? In this respect the
Convention on Genocide, which came into force on 12
January 1951, is enlightening. No mention is made in this
Convention about the existence of an excuse based on
superior orders, notwithstanding detailed prior
discussions by the participating States.
A motion submitted at that time by the Soviet Union
proposed to exclude superior orders as a ground of
exemption from punishment. However, this motion was
rejected by a majority of votes. The twenty-eight states
voting against the proposed provision included the United
States, Belgium, Sweden and Denmark. The Court ought to
take into account the basic view of the majority, namely
that this justification should still be considered as
valid.
Municipal law does not recognize superior orders as a
justification, if the act committed is manifestly
punishable. The determination of the line to be drawn,
beyond which a political act is to be considered as
manifestly punishable, will depend upon the different
interpretations given by the involved parties, according
to their respective points of view.
In this respect, the special question of the criminal
nature of the act carried out in compliance with an order
has to be considered, if this act in itself is not
punishable by law. As provided for by the general rules of
criminal law, the act will be criminal only by reason of
its connection with the acts of other persons. However, as
distinguished from other acts classified as criminal under
the rules of criminal law, in the particular circumstances
under review, preparatory acts, participation in the
offence and assistance, within the framework of the chain
of command, may appear as having been interrupted or even
totally separated by the command organization. This
question may become particularly important, where refusal
to obey an order is involved. The duty to obey, as imposed
by municipal law, will hardly leave the subordinate any
right to choose. In that case the responsibility for the
offence will be borne exclusively by the last link in the
chain. The Accused was not the last link.
The basic distinctions I have shown in this respect should
bear weight if the questions of resistance and its
consequences are considered. The life of the Accused, in
particular, would have been in immediate danger, had he
refused to obey. In his capacity as a person entrusted
with secrets, the Accused had sworn a special oath.
Disobedience was punishable by the death penalty. As to
fighting units, Hitler had issued an order on 24 February
1942, according to which a person refusing to obey an
order was to be shot immediately. This order applied, all
the more, to members of the SS. And it was applied. In
view of these circumstances, and the necessity to respect
orders issued, I applied to
examine as an expert, Mr. Serafim, lecturer at Goettingen
University. This lecturer has testified in many trials,
and according to reports in newspapers, he gave
information about executions by shooting which actually
took place. In view of this situation, there was no
further resistance, and it could hardly be expected from
the Accused.
Last-Modified: 1999/06/15
