Presiding Judge: Dr. Servatius, do you have any questions to
Dr. Servatius: I have no questions.
Presiding Judge: Thank you, Mr. Ross, you have completed
Attorney General: Does the Court wish me to conclude the
Litzmannstadt episode – it is very short – or does the Court
wish to hear the application of Dr. Servatius?
Presiding Judge: We shall proceed as we decided previously.
Or perhaps you will still need Mr. Riftin [the Polish
interpreter] in order to translate the evidence of the next
witness? If that is the case, perhaps we could continue now.
Attorney General: I shall still need Mr. Riftin, not for the
next witness, but somewhat later – and not in connection
with the Litzmannstadt episode.
Presiding Judge: We shall then proceed with the four
applications of Dr. Servatius. [To Attorney General.] Have
you received a copy of these?
Attorney General: Yes, your Honour.
Presiding Judge: I presume that you, Dr. Servatius, will now
recapitulate the content of these applications?
Dr. Servatius: Yes, certainly. I don’t suppose that it is
necessary here to read out the applications; I shall simply
state who are the witnesses whose evidence I wish to
request. The first application relates to Professor Dr. Six,
who was at one time head of Section II in the Head Office of
Reich Security. It is intended that he will give evidence
regarding his knowledge of the status and the powers of the
The second application concerns Advocate Max Marten, who at
the time was adviser to the military administration in
Salonika-Aegaeas. The witness is to testify to the fact that
he came to the Accused in connection with a vital decision
and that the Accused informed him that he could not take a
decision in the matter, and that he would have to contact
his superior authority.
The third witness is Hermann Krumey, who temporarily
deputized for the Accused. He is to give evidence of the
fact that the Accused had no connection with the murder of
100 children in Lidice, and that he did not have the
authority to decide in that matter. He is also to testify
that in Hungary the Accused did not act arbitrarily on his
own decision and that he did not exceed the scope of his
authority. The witness is in prison at Frankfurt-on-Main.
The fourth application relates to Eberhard von Thadden. This
witness was the head of a department in the Foreign Office
with the same rank as the Accused. He is to testify that the
Accused did not possess wide powers in connection with the
Jews…no…the application is worded in another way. The
application is, not to admit documents and to extent they
already have been admitted, not to accept them and to delete
them, if the witness will not be available. The witness is
to give evidence that the operations against the Jews by
Hitler, Himmler and Heydrich were undertaken in cooperation
with the chief operational authorities of the Army, and that
the Accused did not act here under powers of his own.
These are the applications at the present time. Another four
to five applications will be submitted. My application
concerning the interrogation of witnesses in Austria
presents a special difficulty, since I understand that,
according to the Austrian law the parties are not allowed to
be present at the interrogation.
Presiding Judge: Do you have the address of one of the
witnesses, von Thadden?
Dr. Servatius: Yes, certainly. Although I do not have the
address with me, it is available in my office in Cologne and
I shall inform the Court at an early date.
Attorney General: I agree that each one of the persons
mentioned in Defence Counsel’s applications has information
about the Accused and will be able to testify on matters
connected with the charges against him. To my regret I have
to inform the Court that in our opinion these four are
criminals in terms of the Nazi and Nazi Collaborators
(Punishment) Act. Prof. Dr. Six participated in the early
operations of the Accused. He was his superior, that is
true. But apart from that, he was also the commander of an
Einsatzkommando in Soviet Russia and he was involved in the
activities of the Einsatzgruppe there. Hence, if he should
come to Israel, he will have to be brought to trial. I have
no objection – I support this application, that if the
Defence needs this witness, he be examined at his place of
Presiding Judge: Presumably you will not give him an entry
visa, after what he did?
Attorney General: If he applies – we shall give him an entry
visa, we shall arrest him and bring him to trial [laughter
Presiding Judge: I request silence – we are not discussing
laughing matters here.
Attorney General: However, as I assume that none of the
witnesses will want to run this risk, I do not regard this
as a practical possibility for a solution of the problem
before us. From the practical point of view I say that I
support the defence application.
Presiding Judge: You do understand that we have to be
Attorney General: But Defence Counsel requests this
examination either here or abroad.
Presiding Judge: For this reason I enquired what your views
Attorney General: If the witness wishes to come here – let
him come, but I do not regard this as practical for I state
in advance that if he should come, he will be arrested and
brought to trial, and I do not suppose that he will want to
Presiding Judge: What he will want to do, that we can at
best be told by Defence Counsel and possibly he, too, will
not be able to do so.
Attorney General: At this moment I am not dealing with the
formulation of the questions. Neither do I want to argue
about this. I assume that each witness will be required to
testify only about matters known to him. Question No. 6, for
example, to be submitted to Dr. Six “Did the Accused ever
act against your instructions?” is very broad and I suppose
that it must be restricted to the extent that the matter
relates to Dr. Six, or to something similar to that. But I
am not dealing now with the content of the questions, but
with the issues in general.
Dr. Marten was the military governor of Salonika and in our
opinion he is a war criminal. Without his help Wisliceny,
the Accused’s assistant, would not have been able to
accomplish the deportation and the extermination of the Jews
of Salonika. We have in our possession the evidence of Dr.
Marten at his own trial in Greece, on a charge of being a
war criminal. We know what Marten said about Eichmann. I
presume that he will be able to give relevant evidence.
Presiding Judge: What was the outcome of the trial of Dr.
Attorney General: He was sentenced to a short term of
imprisonment. He is a lawyer today and has actually entered
political life in Germany.
Presiding Judge: Was he sentenced in Greece?
Attorney General: He was sentenced in Greece; the sentence
was for a long period of imprisonment – I do not remember at
the moment whether it was for 10 or 25 years. He did not
serve the full time. He was released early, after a short
time, and returned to Germany, and I hear that he is now
active in public life.
Hermann Krumey is in prison, according to my information. We
certainly will not be able to bring about his release from
prison. In our opinion he is a serious war criminal. We have
many records of his activity and of his past. What I have
said about the two first ones applies to him as well.
About von Thadden I have already spoken. I assume that he,
too, will be able to talk about the activities of the
Accused and will be able to give relevant evidence. In
practice I propose that all four should be heard before a
German Court, in accordance with the decision of this Court
and in accordance with the procedures for mutual legal aid.
If Defence Counsel prefers that they should be examined by a
Notary – as he states – or that they should submit
affidavits – I agree to this method as well. I leave the
choice to the Defence as to which method is more convenient
for leading the evidence of these witnesses, provided that
in each instance we shall be able to put some questions to
the witnesses at the time they make their statement. We
prefer that they give their evidence in a German Court.
Presiding Judge: What do you say about the difficulty
arising, according to the contention of Dr. Servatius, from
the fact that in a German Court there is no examination of
witnesses, as is customary with us?
Attorney General: Dr. Servatius raises two problems and this
is one of them. The second one is that the men are likely
to incriminate themselves and it is their right to remain
silent. In regard to the second argument – they have the
same right in an Israel Court. There is no difference in the
legal position between Israel and Germany in that respect.
Presiding Judge: That is true.
Attorney General: With regard to the examination of
witnesses, it is indeed true that the system in practice
here in Israel is to be preferred from the Defence Counsel’s
point of view for the clarification of the truth, to the
system in force over there. But, after all, Defence Counsel
from the outset, wanted the trial to be held not here, but
in Germany, and if so, he would have been subject to that
system for the interrogation of witnesses, and not only of
witnesses for the defence. Here at least, he is given the
possiblity of cross-examining our witnesses. Secondly, we
have to be the cross-examiners and not Defence Counsel. If
there is someone who finds himself in a difficulty as a
result of this procedure – it is we and not Defence Counsel.
I am ready to reconcile myself to this difficulty and to
accept this burden. But I am hopeful that even within the
framework of the Continental form of examination – if this
is agreed upon by the parties – permission will be granted
by the Judge, with mutual consent, to pose a number of
questions by means of cross-examination in the same way, as
is customary here.
Presiding Judge: Perhaps, indeed, a mixed procedure: first
of all a questionnaire will be submitted to the witnesses,
with the representatives of the parties having the right to
ask additional questions, in order to cover the two
Attorney General: I am definitely in agreement with this – I
have no objection at all.
Presiding Judge: Now, Mr. Hausner, there is a further
request, to strike out two documents that have already been
submitted and admitted – the two affidavits of von Thadden
in Nuremberg. What is your attitude in regard to this?
Attorney General: If the Court requires an answer – we do
not have a procedure of striking out in regard to
affidavits. The Court may or may not attach weight to these
affidavits. The Court has already warned itself in its
decision concerning the importance that it will attach to
these declarations. If in the light of everything that will
be said, it should become clear that there would be a
positive need for the examination of von Thadden and that he
has not been examined, the Court will decide whether to take
these affidavits into account or not, or to what extent to
take account of them. We do not have a procedure of striking
out, and I ask that this application should be disregarded.
I, for myself, do not object to von Thadden being examined.
I agree that he should be one of those to be examined. I
agree that the Defence should be given the right of cross-
examination, since it was I who submitted the affidavit.
Presiding Judge: Dr. Servatius, I have one question at this
stage. What about those two – Huppenkothen and Hoettl? Are
the two of them Austrians living in Austria and is it for
this reason you made no request in relation to them?
Dr. Servatius: Hoettl is in Austria. Huppenkothen – I do
not know exactly whether he is in Austria or in West
Presiding Judge: In connection with these two, perhaps you
will submit an application at a later stage?
Dr. Servatius: Yes, certainly, I have already decided to
submit these applications. May I add something? The main
application is that the witnesses be heard here before this
Court, and I request the Court to take a decision of this
main application. The Attorney General’s reservation in
regard to this are of a political character. The question
is, thereafter, whether an entry visa will be granted, and
if it is granted – it will be up to the witnesses themselves
to decide whether they want to come.
Presiding Judge: I would like to remind you that we said in
a previous decision, that if the Attorney General should
want to give instructions for the arrest of these witnesses
when they come here – the Court will not prevent him from
doing so. Is that clear to you, Sir?
Dr. Servatius: Yes.
Presiding Judge: If that is the case, does this repeated
request to ascertain whether they will receive entry visas –
does it have any relevance in practice? Is it possible to
imagine that a witness will want to come when he knows in
advance that he will be arrested the moment he sets foot on
the soil of Israel?
Dr. Servatius: I presume that the authorities will still
consider this question, for in my opinion the Attorney
General should not decide on his own whether they should be
given entry visas and whether an order of arrest should be
issued against them. The appearance of these witnesses here,
in my opinion, would make a much better impression.
Presiding Judge: I would like to explain something which
should surely be known to you, namely that the Attorney
General is the legal adviser to the Government. If he makes
such a statement, I presume he speaks in the name of the
Government, on behalf of each Government ministry. Is that
not so, Mr. Hausner?
Attorney General: Certainly, Your Honour.
Presiding Judge: The situation in this matter is now clear,
so it seems to me.
Dr. Servatius: I was not aware of the exact standing of the
Attorney General. But if this is a decision of the
Government, then it is clear to me that the Court here can
not take a decision.
Presiding Judge: In order that it may be completely clear –
the Attorney General is not only in charge of matters of
prosecution, but he is also – as his name indicates – the
legal adviser to the Government. If that is so, it only
remains to clarify the exact method of taking evidence
abroad: whether by means of questionnaire or by oral
examination, or by both methods together. What would you
prefer? I turn to you, Dr. Servatius, now. We have heard
from the Attorney General that on this matter he places the
choice in your hands.
Dr. Servatius: I myself cannot submit an application to the
German court for legal aid. This has to be done by an
Authority. I request that the Court should do so.
Presiding Judge: I was not referring to this, but whether
the application should be for the witnesses to be
interrogated by means of a questionnaire or by means of oral
examination. In this matter you, Sir, have the choice and we
here are ready to accept your preference in this matter. At
the same time the Attorney General has said that he prefers
an oral examination of the witnesses.
Dr. Servatius: I associate myself with this request of the
Attorney General. I believe it is important that the
witnesses should be examined orally.
Judge Halevi: I would merely like to add something to Dr.
Servatius. The Court has not refused to hear these four
witnesses in Jerusalem. However, the conclusion is that the
matter is not practical, since it is assumed that the
witnesses do not want to run the risk of a criminal trial in
Israel. But if one of them should want to take the risk, of
course the Court will hear his evidence here, and the legal
fate of the witness apart from his evidence will be in
accordance with the law. I believe that this is the exact
summing-up of the position, although we thought that the
issue was not a practical one.
Dr. Servatius: I also cannot imagine that a witness will
want to appear here, if he knows that he will be arrested.
Judge Raveh: I should like to ask Dr. Servatius a
technical point: I understand that the subject to be passed
on to the courts in Germany consists of those points in
which each case appears in the first portion of the
applications, under the heading “Hauptantrag” (main
application). And in such a case I presume that the
questionnaire will be superfluous. Or do you prefer that, as
subjects for the interrogation, the Court should forward
both the subjects appearing in the first portion as well as
Dr. Servatius: The examining Judge: should have both in his
possession, so that he should not be unduly restricted and
only permit the main question.
Judge Raveh: In order to leave no doubt, if we take, for
example, the application concerning Prof. Six. Do you
request that we forward that which is mentioned in part I,
numbers 1, 2, 3, 4 and also all the eight questions
appearing in the questionnaire – as an example?
Dr. Servatius: Yes, surely.
Presiding Judge: We shall give our decision on these four
applications tomorrow morning at 9 o’clock.
Attorney General: I shall now submit a number of documents
relating to the Warthegau and to Litzmannstadt. To complete
the matter of the 20,000 Jews and the 5,000 gypsies, I wish
to ask the Court to admit our document No. 1545, which I
Presiding Judge: This document will be exhibit T/243.