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
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
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
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
Presiding Judge: This is a summary of the editor, is it not?
Attorney General: Yes, it is a summary by the editor.
“…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
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
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
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
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
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
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.