[Dr. Servatius, Continued]
It was the Accused’s function to report to his superiors on
the progress of the matter. It then became his task to take
over at the German border the trains which had been loaded
by the Hungarians, and to re-direct them to Auschwitz, or
other places of destination, according to the instructions
given to him. The Accused’s position in Hungary is well
explained by the fact that he applied to his superiors to
disband his unit, after Horthy had forbidden to proceed with
further deportations from Hungary.
The Accused did not lodge any protest or take any measures
against this change of mood. This was to be expected quite
definitely, according to the description of his character by
certain interested persons. Instead of doing so, he
accepted the command of a unit at the front line and brought
back from the front line a field hospital and a group of
ethnic Germans. The pressure upon the Hungarian Government
to renew the measures against the Jews was exercised by
Veesenmayer, with the consent of the Foreign Ministry. His
assistants were Winkelmann and Geschke. As the result of
political pressure, Szalasi took over the government
administration, and the deportations were to recommence.
Winkelmann recalled Eichmann urgently, in order to organize
the transportation of fifty thousand Jews as a labour force
to Germany. The outcome of this pressure was the notorious
foot march. It was carried out by the Hungarians. No
manpower for escorts was at the Accused’s disposal. It
emerges convincingly from the hierarchic relationship that,
on the German side, the responsibility was that of
Veesenmayer, Winkelmann and Geschke alone. The foot march
was not a secret manoeuvre of the Accused, but a measure
agreed upon by the members of the political leadership.
In this connection, the report drawn up on 22 November 1944,
at the time when the events occurred, by Secretary of
Legation Wallenberg, is illuminating. This record contains
a report of the events made by Dr. Breszlauer. This report
does not make any mention of responsibility on the part of
the Accused, who is alleged to have been so prominent. The
Accused was pushed into the limelight only after the War by
those really responsible, in order to exonerate themselves.
In this connection, the eager support of the witness Becher
Now, what has been proved as regards the facts? I do not
need to repeat all the details, the facts have been
thoroughly expounded at a great number of sessions. The
Accused himself has had the opportunity, during his
examination, to reply in extenso to each and every Count.
In the written closing brief of the Defence, a comparative
table of the evidence in favour of the Accused and the
evidence for the Prosecution, in respect of every issue, has
been drawn up; may it please the Court to consider carefully
the pros and cons, and to make its findings.
Let me make the following general observations: The best
evidence of the facts are the documents produced by the
police and the Prosecution. Without these documents, the
Accused would have been defenceless. However, these
documents are only fragments of the total material which
escaped destruction at the end of the War. They consist of
decisions, instructions and other isolated written
instruments. These written instruments generally have no
connection with one another. The corresponding files are
missing; we do not know the events preceding a decision
which would make it possible to examine whether it was
justified. In this connection, the case of the Dutch
professor Meyers is a good example. In this case – as well
as in similar cases – the Accused is charged with having
refused summarily, and on his own initiative, to grant an
exit permit for departing abroad, notwithstanding an offer
to pay an amount of 150,000 Swiss francs. The sworn
declaration of Professor Meyer’s female lawyer and her book,
Der Kampf um ein Menschenleben show a different picture.
The departure was not prevented by the Accused’s conduct.
An exit permit was granted; but the Swiss bank, without
expressing any reasons, refused to transfer the amount of
foreign currency which had been placed at its disposal. All
the efforts of the professor’s Swiss colleagues were of no
avail. The homeland of the Geneva Convention turned its
head away without a word.
The Accused’s allegation – which always met with doubts –
that the decision in important matters had not been his own,
but that of his superiors – has been confirmed in this case.
Himmler himself had in this case retained the power to
decide. Moreover, it transpired that Professor Meyers was
spared the fate of deportation to the East through the
intervention of the Accused’s Section, and returned home
unharmed from Theresienstadt after the War. That was a
small concession which, moreover, was authorized by the
directions given in respect of the person concerned, who was
anyhow entitled to leave the country. That was in
conformity with the relief which Probst (Dean) Grueber
wanted to obtain for his people. However, the Prosecution
considers the Accused’s conduct in this instance as evidence
for his omnipotence. The grant of a concession in this case
is construed to the detriment of the Accused.
What is the weight which should be attributed to the
testimonies? It is possible that the picture of events in
the memory of a witness who had been persecuted has become
blurred. The testimony of the witness is likely to be a
mixture of personal experience, and of what the witness has
read or heard from others. The lapse of time will have done
its work. The danger that this will happen, exists in
particular where the story of the experiences is frequently
repeated. Human weakness will complete and embroider the
events, and later on one cannot rectify what one has told.
A picture of the events is crystallized – a phenomenon we
know to have been experienced by war veterans in respect of
their war experiences. Similar testimonies of persecuted
persons given in German courts have sometimes proved to be
wrong. In protection of these witnesses, the courts have
rejected the charge of false testimony made against them.
They have excused the proved untruth of a testimony as
having been the result of circumstances, and as being
understandable. This ought to be done here, too.
In this connection, it has to be borne in mind that the
Jewish functionaries who have testified as witnesses had to
be careful not to raise even the shadow of suspicion that
they had obeyed the Accused, or even collaborated with him.
It would only be understandable if they tried today to
dissociate themselves as far as possible from the Accused by
exaggerating trivialities. A great number of witnesses has
described their own fate, and that of the members of their
family, as well as the road of their fellow sufferers. I
have not cross-examined these witnesses. I might have shown
that their testimonies contained contradictions and
statements of facts which cannot have occurred. But all in
all, the facts as described were unimpeachable, and I had
too much respect and reverence for their suffering to attack
these witnesses by petty questioning.
As to the German witnesses for the Prosecution – their
testimonies were unearthed from the rubble heap of the Third
Reich, and they are not exactly spotless. All these
witnesses, when giving evidence, had their own worries.
They were under arrest. They were not interested in telling
the truth, but in saving what could be saved. The truth is
not important – don’t let yourself be caught out! That was
the watchword. These were political trials in which the
accomplices bore in mind that they were partners in the
conspiracy. Probably everybody in Nuremberg was aware of
that. The witness Grell and the witness von Thadden have
now confirmed what were the circumstances at that time.
However, we have the testimonies of Hoess and Wisliceny.
The characteristic features of Hoess’ statement are that he
has completely surrendered. When writing, he uses the same
kind of language as his accusers, calling the detainees in
the labour camps slave workers – and, to be sure, previously
he would strictly have refused to do so. He does not swim
against the tide, and it seems that, in his testimony, he
conforms to what is now expected from him. He cannot deny
his complicity, but he comes from the Nuremberg gaol, and he
knows what he has to do. What can he deny, as far as he
himself is concerned? However, it is convenient to shift,
at least to some extent, the burden of his own moral
responsibility. The Accused is alleged to have informed
Hoess of the first directives concerning the methods of
extermination. However, the witness was already on the job
and did not need any such directives from the Accused. The
persons who had placed at his disposal the gas squad for the
killing of the mentally ill were Brack and Buehler. Hoess’
statement on the Accused’s participation is not corroborated
by any documentary evidence. This is a striking fact, for
traces of everything else have been found there.
The witness Wisliceny: It is obvious that this witness, in
readily giving such a great number of testimonies and
statements, was motivated only by the desire to be released.
On various occasions, he offered to seek out the Accused and
his family. He, too, comes from the Nuremberg gaol. The
protection of the members of his family against the revenge
of his comrades is offered to him in consideration for not
conducting himself in conformity with the general line of
conduct adopted by the detainees. Wisliceny succeeds in
being transferred in Nuremberg from the gaol of the main
culprits to the division of the witnesses. This is the
reward; it is the first step to liberty. According to the
record which has been produced, he is “happy as a lark” at
this favour granted to him.
Now, what about the evidence for the Defence?
The Accused has not been able to produce, on his part,
documentary evidence for his defence. The archives of the
world, and the resources of a government were not at his
disposal. Experts who could have been helpful turned a deaf
ear to the requests of the Defence. They were intimidated
by the daily fanfares of the press and the trumpeting of
publications. They shut their ears. This noisy campaign of
the press against the Accused amounted to contempt of court
of an enormous extent. The Defence was hardly able to fend
And what about the witnesses for the Defence? They heard
the threatening words of the Prosecutor; they feared that,
in any case, they could not expect any cheerful experience,
even if they were permitted to appear in court in Israel.
They preferred to keep away.
The examination of the witnesses on commission was not a
complete substitute for the examination by the Court itself.
The judge charged with the examination on commission was
unable to master the material of this gigantic trial.
Nevertheless, he had to conduct the proceedings. The
examination of the witness Hoettl is characteristic in that
respect. His examination lasted three days; it took place
in the absence of the Defence and of the Prosecution.
Thereafter, the judge writes that he had tried to assist in
the elucidation of the murders. But this, precisely, was
not his task, it is the task of the Court. The judge
charged with the examination on commission had to record the
testimony of the witness and nothing else. Therefore, the
examining Judge: did not keep the necessary distance and
appears to be biased. The testimonies of these witnesses
stand by themselves and are not corroborated. However, to
the extent that the testimony can be based on documents, it
stands to reason that the witnesses gave their testimony
after they had been confronted with the contents of these
documents. It may be assumed that they have brought their
testimony in line with the contents of the documents.
Dr. Kasztner’s Report cannot be considered as corroboration
of Hoess’, Wisliceny’s and Brand’s testimony. It is a fact
that this report is only an image of these testimonies and
was drawn up only later on, after consultation with other
persons involved. The weight of this report would have been
different if it had consisted of notes from a diary made at
the time of the actual occurrence of these events.
It would then also have become evident that Hoettl used the
statement made by the Accused, in the presence of comrades,
at the time of the collapse of the German Reich, as an alibi
for himself. The witness Hoettl proudly admits having been
a political turncoat. All over the world, statements by
such a person generally enjoy little credit. Then books are
written in justification, but that, too, is of no avail.
The Court should reject Hoettl’s testimony.
It would have given considerable relief to the Accused if
the other witnesses had been examined by the Court itself.
Confronted with the Accused, they would have had to retract
various statements. Thus Veesenmayer probably would have
remembered that he had begun to execute the measures against
the Jews according to plan. He would have had to admit
that, on 18 March 1944, he travelled from Salzburg to
Budapest together with Kaltenbrunner and Hoettl, and knew of
the instructions concerning the Jews. He had not been put
on the train just in order to be handed over to the Accused
The same applies to the cross-examination of the German
witnesses for the Prosecution. I refer to the examination
of the witness Becher. A few days before his examination,
the examining Judge: handed him the list of questions to be
put to him in cross-examination on behalf of the Defence, in
order to enable him to prepare his testimony. What a
strange case! By reason of this procedural defect, the
Court should disregard the testimony of the witness Becher.
The lack of credibility of this witness emerges also from
the fact that, already on a previous date, he had tried to
bring his testimony in line with that of others. I refer to
the detailed conversation between the witness Becher and Dr.
Kasztner, which was even permitted to take place in the
gaol. In addition thereto, it has to be mentioned that the
witness Becher had contacts with the witness Brand and the
engineer Biss even after the beginning of this trial. The
witness is discredited in particular by his having denied
under oath that he acted as interpreter at the
interrogations in prisoner camps – which, however, has
precisely been established by his own prior testimony.
The Accused’s own testimony as a witness: The Prosecution
claims that this testimony is a pack of lies. Only where
the Accused was shown documents and was driven into a corner
did he admit certain facts. I do not think that this is
quite correct. From the first day of his interrogation by
the police, the Accused readily volunteered any information
he was able to give. Who can remember, after sixteen years
and more, every single event which has occurred in the
course of his professional activities? One needs
documentary support for that purpose. This argument was
parried by the allegation that the Accused otherwise
remembered a lot of minor details, and that he only did not
want to remember events having occurred in the course of his
professional activity. These allegations are not justified.
We, all of us, do remember various small details of life
which occurred long ago, but not all the events of
Only the documents produced and perusal of Reitlinger’s,
Poliakov’s and Kempner’s books reminded the Accused again of
various subjects, of the facts he had forgotten a long time
ago. The Accused has tried to elucidate connections between
various events and has examined the existing alternatives.
Where his reasonings could not be supported or appeared to
be devoid of logic, he himself rejected them. However, such
a co-operation cannot operate now to the detriment of the
It is not correct that the Accused was evasive in his
replies. At the beginning of the Accused’s interrogation by
the police, he volunteered information precisely – and in
all details – of the facts which were likely to incriminate
him most of all as a human being. He reported on his
travels to the places of extermination, where he had come
into contact with the horror. Nobody else would have been
able to prove these occurrences. This frankness should
entitle the Accused to be believed also in respect of less
important matters. You cannot look at the Accused’s life as
through a legalistic keyhole.
Furthermore, the Accused has not tried to find ways open to
him, in order to extricate himself. It would have been easy
for him to rely on the testimony of the witness Dr. Merten,
according to which he assisted the latter in the rescue of
twenty thousand Jews from Salonika. Likewise, the Accused
did not choose the easy way to adopt the explanation
suggested to him by the witness Rademacher, in respect of
the marginal note, “Eichmann proposes shooting.” He
preferred a hardly understandable explanation for this
event. However, later on, his statement found support by
the reasons given in the Nuremberg judgment against
Veesenmayer (Case No. 11). They show that Rademacher
himself travelled to Serbia in order to organize the
shootings. The view held by the Prosecution that this
witness, who held the office of a counsellor of legation in
the Foreign Ministry, acted upon the Accused’s direction,
can hardly be upheld.
Finally, it cannot be disregarded that the Accused’s replies
to all questions in the protracted and vigorous cross-
examination by the Attorney General were firm and calm.
Nobody is able to do so, if he has to defend a mesh of lies.
But what of the Sassen memoirs? True, they seem to be
devastating for the Accused, but their contents do not tally
with the facts. They are the outcome of provocation, made
under the influence of alcohol, and embroidered to suit the
reader’s taste. The tendency of this publicist was not to
tell the truth, but to be interesting. It is surprising
that the Prosecution did not call Sassen to testify in
Court, as best evidence to disprove the Accused’s
allegations; obviously, the idea was to avoid the cross-
examination of this witness by Counsel for the Defence.
Thus, the Prosecution preferred not to discharge the burden
of proof for the crux of its allegations. However, mere
suspicion is not sufficient evidence in a court of law. In
this trial, the Accused has not been placed in the centre of
events. Is he the principal offender, an accomplice, or
involved in a conspiracy?
In this connection, two legal systems have to be compared.
The German system: A principal offender is only a person who
intends to commit the act as his own. An accessory is a
person who intends to assist somebody else in the commission
of the offence by that other person.
Israeli law follows the system prevailing in Anglo-American
jurisdictions. Intention, as a distinguishing element, is
disregarded. The objective test of participation in the
commission of the offence is decisive. In both systems,
there is a wealth of judicial precedents, but the result
arrived at is generally the same.
Under German law, the result can be that the accused is
found guilty of having been a mere accomplice; but in that
case he is liable to the same punishment as the principal
Under Israeli law, the accused can be found guilty as a
principal offender; but in determining the measure of
punishment, the smaller degree of his participation as an
accessory in the commission of the offence by another may be
taken into account. In order to find a person guilty as a
co-principal, it is sufficient to show, according to Section
23(1)(b) of the Criminal Code Ordinance, that the accused
intended, by his act, to enable or otherwise aid the
perpetrator to commit the offence.