Attorney General: We have seen the value of such testimony.
We saw this in the case of Brack.
We hear that Wetzel was not prepared to give us any idea of
what he was going to testify, and if there is any point in
making an application for further evidence, then the Court
must at least be told – more or less – what it will be.
Thirdly, it is my argument that Wetzel’s evidence will add
nothing and detract nothing. The principles which apply to
the hearing of new evidence at the appellate stage have been
laid down in several Israeli judgments. Section 71 of the
Criminal Procedure (Trial upon Information Ordinance) gives
the Appellate Court extremely wide powers. How these powers
are to be used by the Court were laid down, inter alia, in
Criminal Appeal 3/48, Pesakim 2, page 216, where it was held
that two conditions must be satisfied. (1) That the Defence
was unable to bring that evidence despite every effort and
endeavour; (2) That the importance of the evidence is such
that, had it been submitted, it was definitely liable to
have affected the view of the Court below.
Just a few days ago this Court decided, in Criminal Appeal
7/62, “that it is a well-known rule that this Court, sitting
as a Court of Appeal, does not hear additional witnesses,
nor does it hear witnesses who testified in the Court of
First Instance, except in the most exceptional circumstances
and when allowed under the law.”
Justice Agranat: What is the reference?
Attorney General: This has not yet been published, but I
have the judgment if the Court wishes to read it.
During the Mandate it was held under Criminal Appeal 73/39,
1939, Palestine Law Reports, 1940, page 8:
“The authority to hear additional evidence will be used only
in the most exceptional cases, and will never be used when
the evidence was known and could have been submitted to the
In this respect our courts have followed English case
law. There, too, under the Criminal Appeal Act there is
extensive authority to hear additional evidence on an
appellate level, and in R. v. Parks, (1961) All England
L.R., Vol. 3, page 633, we find the conditions for the
court hearing additional evidence at the appeal stage:
“(i) the evidence sought to be called must be evidence
which was not available at the trial; (ii) the evidence
must be relevant to the issues; (iii) it must be
credible evidence in the sense of being well capable of
belief, and (iv) the court will, after considering that
evidence, go on to consider whether there might have
been a reasonable doubt in the minds of the jury as to
the guilt of the appellant if that evidence had been
given together with the other evidence at the trial.”
In other words, we must be told what the evidence will be in
order for the Court to be able to rule whether, if this
evidence had been submitted to the Court of First Instance,
the court below would have changed its opinion in terms of
its findings. Here we are not even told what Wetzel is going
President: It was said that the letters were not sent off.
Attorney General: We would like, at least, to receive an
affidavit. We hear that there was a telephone conversation
between Counsel for the Defence and Wetzel, and that Wetzel
says that he does not want to testify now, because
proceedings are pending against him. What value can be
attached to his evidence, to what extent would his evidence
make a difference, we cannot know. He is evading giving
testimony, he says himself that he does not wish to testify.
Moreover, whatever Wetzel says today, what value can his
testimony have in the face of the official documents which
have been found? Furthermore, the Court itself says that
Eichmann’s denial of this passage has no effect whatsoever.
They say in Paragraph 167:
“We do not attach any value to this denial and so do
not accept it. The denial is based essentially on the
fact that, in the handwritten memorandum, the Accused’s
name does not appear. This was noticed by the Accused
only after he had been examined by the police. The
documents were written in an official office of the
German Reich, their formal authenticity is not in
doubt; they are closely connected; they record the
words and actions of persons acting with official
authority, and they were composed soon after the events
occurred. If we add to this that the Accused readily
admitted the accuracy of their contents, not only
spontaneously when the documents were first shown to
him, but also a second time on another day, after he
had had time to think, and volunteered to repeat his
confirmation of their accuracy, without having been
questioned again on this subject; and again on a third
occasion, when shown the same documents he expressed no
reservations. This is more than sufficient to convince
us that these documents are not only authentic from a
formal point of view, but also accurate in content, and
there is no basis for the much later denial made by the
Consequently, even if Wetzel appears, regardless of what he
says about these documents, in view of the Accused’s own
reaction to this document which he himself endorsed, this
finding must be upheld.
Justice Silberg: The typescript is incomplete, there are
blank spaces. There is also a blank line before the word
“Sturmbannfuehrer.” What might have been there?
Attorney General: There are two blank spaces. If Your
Honour compares the typescript with the manuscript…
Justice Silberg: In the manuscript there are two blank
spaces, before the letters S.T.B.F. and after
“Sachbearbeiter,” what could be in between these two words?
Attorney General: I do not know, nor do I consider this to
be of significance, with all due respect.
Justice Silberg: Dr. Servatius argued: “oder” (or).
Attorney General: I prefer to concentrate on the typed
documents in which his name appears with spaced letters and
Justice Witkon Above the letters which might read
Sturmbannfuehrer, there are two or three other handwritten
words. Cannot that be deciphered?
Justice Sussman: Justice Witkon is asking about the words
below Brack. The question is not whether the letters were
sent, or which letter was sent, but rather the question is
whether the conversation referred to in the letters actually
took place. That is the question.
Justice Witkon There is a similarity in these two letters,
all sorts of mistakes, as it were, in the manuscript and
afterwards they reoccur in the typescript, with the
correction. For example: “Zwischenfrage” (interjected
questions) and “Judenfrage” (Jewish question). All of these
have been reproduced.
Attorney General: The splitting of numbers into two also
appears in both documents. But I believe that what Justice
Sussman just said is really the nub of the issue. The
question is not whether the letter was written or sent, but
whether such a conversation actually took place. And whether
clarification took place during which it became clear to
Wetzel that Eichmann assented to the use of gas. I would
even go so far as to say that it is of no interest to know
whether Wetzel found out directly from Eichmann or via
Brack, that is not important, either. Even if Wetzel were to
come along now and say: This information stems from Brack,
that Eichmann agreed to the extermination, even that would
make no difference. And if all we had was that, perhaps we
would be well advised to reflect, but after all, we know
from other sources that he had a hand in this matter.
President: We are speaking now about motor vehicles and not
Attorney General: For example, the process of extermination
using exhaust gas. In the Gerstein documents…
President: In Gerstein’s story about exhaust gas there is
no reference to Eichmann’s name, nor to that of Guenther.
Attorney General: With all due respect, there certainly are
President: Is Guenther mentioned in connection with Zyklon?
Attorney General: He writes how Guenther sent him to check
on the efficiency of extermination using diesel engines,
whether this could be replaced with cyanide. T/1313.
President: What is T/1313(c)?
Attorney General: That is part of the Gerstein documents.
In the last paragraph of that document Gerstein says:
“The officer of the SS Guenther ordered me, to make all
arrangements to replace the Diesel-motor as the method
of extermination by the use of cyanide.”
President: Does he refer to exhaust gas?
Attorney General: The reference is to diesel, and that was
exhaust gases. Guenther says that the possibility of
replacing this with cyanide should be investigated.
President: From which page in document T/1313(c) were you
Attorney General: Page 4, the last paragraph of the
I now quote from T/1313(a), page 12, line 5 from the top:
“I have never known what class of people Guenther was still
to kill, on orders of his chief, Eichmann.”
Justice Silberg: Mr. Hausner, can you indicate documents on
which the District Court did not base itself in making this
finding? In Paragraphs 166 and 167 the Court makes no
reference whatsoever to Gerstein.
Attorney General: The District Court refers to Gerstein in
another connection – in connection with the extermination by
gassing and the Accused’s part generally. The Court says
that it places credence in the Gerstein documents; if the
Court places general credence in the Gerstein documents, I
do not see why I am not entitled to refer to a particular
passage in those documents in which the Court believes.
Justice Silberg: These points are made there in a different
context. The Court says:
“We derive the main evidence implicating the Accused
with regard to the introduction of the method of
killing by gas vans from documents connected with the
name of Dr. Wetzel.”
Attorney General: The business of killing by gas, whether
using gas vans, exhaust gas, or cyanide gas – is a single
chapter. There is no need to draw a distinction between the
primary proof of the chapter of the gas vans and subsequent
proof of extermination using gas and other means. There is a
single complex which is called, as Eichmann puts it,
“Gasgeschichte” – the gas business. There are several parts
to the evidence: Wetzel’s letter, the Gerstein documents,
and Hoess’s evidence. I believe that I am entitled to base
myself on the entire complex.
Eichmann admitted that he came into contact with Wetzel
(Session 98, Vol. IV, p. 1707). When he was asked why he
admitted in his Police interrogation that the Wetzel
documents were authentic, he gave an interesting answer
(Session 98, Vol. IV, p. 1708): Why should I deny something
which I was ordered to do…but if I am given the entire set
of documents, I do not see why I should not examine these
documents and then the result can be either in my favour or
damaging to me.”
I would summarize this chapter as follows: First of all, it
should have been demonstrated to the Court that Wetzel could
not have been called during the proceedings in the Court of
First Instance. We know nothing about this. Many witnesses
were called, and probably if Counsel for the Defence had
asked for Wetzel to be called – there would have been no
reason to refuse his application. The fact that the Wetzel
document is one of the Prosecution’s items of evidence was
known to the Defence for a considerable time prior to the
opening of the proceedings. The Accused was questioned about
that several times by the Police. In procedural terms, just
this fact is sufficient as grounds for rejecting the
application. But the testimony will also not add anything as
to the substantance of the matter.
President: In procedural terms there are many defects. I
remember that years ago, when appearing in a criminal case
during the Mandate, there was an attempt by the Defence to
bring a witness. First of all we submitted an affidavit by
those whom we wanted to testify, so that the Court could
appreciate the importance of the matter. Because there is
another rule, that the Court of Appeal will not be inclined
to allow testimony on speculative grounds. I believe that
there is a ruling on this dating back to the period of the
Attorney General: I have brought with me the Mandatory
ruling. I thought it best to base myself on the latest
rulings. In any case, from our case law and English case law
it is clear that the Court must be shown what the witness is
going to say. This is done by application to the Court.
President: The reason why I am saying this is to draw Dr.
Servatius’ attention to it, so that he can go into the
matter and will be able to say something in his reply.
Attorney General: I would request that this application not
be granted at this stage, particularly since it will change
nothing in respect of the Accused’s responsibility for and
knowledge of extermination by gas. This comes from his own
lips and is corroborated by documentation.
As for the Sievers affair and the Strasbourg skeleton
collection, Counsel for the Defence also ignores the
evidence. Had Eichmann informed Sievers, as is argued here,
that he had no power to deal with the skull and skeleton
collection, then without a doubt the whole business which
began in 1942 would have come to an end. Exhibit T/1366,
which is Sievers’ letter to Eichmann dated 21 June 1943
after a break in any handling of the matter, utterly
disproves this argument. Because something like six months
after he began to handle things, Sievers approaches Eichmann
again, basing himself on a letter from Eichmann’s Section
dated 25 September 1942 and on talks about the matter that
had been held in the interim, and now asks that the supply
of skeletons be made.
And here we have definitive proof that Eichmann did not deny
his authority in this matter. Because had that been the
case, there would have been no point in sending T/1366. And
these documents are not just “schwer belastend” (highly
incriminating), as Counsel for the Defence put it, they also
prove definitively that Eichmann provided – he provided not
skeletons, as asked by Sievers, but live people in order for
Sievers to turn them into skeletons for the Nazi research.
Justice Silberg: Mr. Hausner, you also need T/1365 dated 6
November 1942, which supports Sievers’ testimony in the
Doctors’ Trial, that he visited Eichmann and talked to him.
Attorney General: Yes, Your Honour, but here the Accused
says, “At that time I said that this matter was none of my
business and I did nothing.” But then we have the letter
from a period some six months later which shows that that
could not be so, because Sievers bases himself on additional
letters and conversations with him.
President: We know all this about Sievers’ letter, and we
know about the Appellant’s reaction, to ask for a letter
from someone senior to him. All of this is in the Judgment.
And in the Judgment it says that Eichmann gave instructions
to Auschwitz to provide what was asked for. But where is the
Attorney General: Your Honour, the corpses were found in
Strasbourg. The liberating French Army found the dismembered
President: But how do we know that they were put to death
in accordance on the Appellant’s instructions?
Attorney General: The Appellant was not found guilty of
killing these 100 people, but this simply sheds more light
on the atrocities. We know that he was contacted when they
needed Jewish skeletons, we know that he was also the
address for the Inspectorate of Concentration Camps where
Jewish bodies were concerned, because the transports of Jews
were under his exclusive authority, he is their lord of life
and death. And even Gluecks is not able to issue orders on
these matters. And we have the proof that this matter
remained under the control of his Section and not that of
the Economic-Administrative Office.
Justice Silberg: Did Kramer, at the Doctors’ Trial, give
evidence about this (T/1371)?