Archive/File: people/e/eichmann.adolf/transcripts/Appeal/Appeal-Pleading-02-06
Last-Modified: 1999/06/15

76. On Paragraph 160 - Skeletons

What the Court has found as the Accused's responsibility
must be reviewed. The following points are striking:

1. The Accused had no powers of control over camp inmates.
Gluecks was responsible for the camps.

2. In contrast, Brack, from the Fuehrer's Chancellery, was
obviously in touch with Guenther and was probably of the
opinion that as his Specialist Officer the Accused was
competent and therefore referred to the latter.

The Accused's name does not appear in Sievers' meticulously
kept diary, but mention is made of Guenther, who always
dealt with medical matters.

77. On Paragraphs 162/163 - The Accused's status in the RSHA

1. The fact that the perpetrators were not the Accused's
subordinates has already been commented on.

2. Blume's statement was made in 1945. He himself was
involved in the matter and spoke of Heydrich as Commander
(Befehlshaber). There is no indication of what served as
clarification of the order.

There may have been a general indication of possible
measures, but a clear order on extermination does not need
to have been given.

If one follows the Accused's Statement, the clarifications
given in the discussion could only have been of a general
nature.

3. The Judgment gives the impression that the Accused
personally gave the order to prevent emigration. In fact he
simply passed on the instruction he had received.

78. On Paragraph 164 - Transport to Lodz, October 1941

The Accused concedes that the complaint against sending the
transport to the overcrowded Lodz Ghetto was justified, but
not that the fault lay with him. The Accused says that the
destination was Lodz or Minsk and that therefore he had the
choice; he preferred Lodz because he knew that the
Operations Units were active in Minsk.

It is not proved that at this time the Accused knew that the
Jews sent with the transports to Lodz would also be
exterminated.

At that time the Madagascar Plan had not yet been abandoned.
It was also not yet known that Hitler would proceed
seriously with his threats of extermination.

79. On Paragraph 165

Transportation to the extermination camps did not always and
for all deportees mean extermination. In these camps there
were major manufacturing plants, where at least 100,000 Jews
were employed as forced labourers.

The conclusion cannot be drawn from transports to these
camps that the Accused knew of the later killings in 1941.

If the Accused says that he did not deny his knowledge of
the extermination, this was limited to the operations he had
seen and on which he had reported.

80. On Paragraph 166 - Killing by gas

1. From the Accused's statement about his protest against
the shootings it cannot be concluded that on the strength of
this, the Accused then considered the possibility of killing
by gas.

His protest was directed against killing generally.

2. A conclusion can only be drawn from the Accused's
Statement about the time of the events in Minsk:

The debris of the tanks from the battles at Minsk and
Bialystok lay scattered and untouched until 1942, as
elsewhere on the Eastern Front, since all resources and
forces were needed for the Army's continued advance. Such
debris could give the observer driving past the impression
that they were still relatively fresh.

In contrast, however, the Accused's comment about his
clothing must be taken notice of; that he wore a long padded
leather coat. However, in September he would not yet be
wearing such a garment.

81. On Paragraph 165 - Killing by gas vans

1. Attention is hereby called to the following important
difference in the draft (which in this connection is
decisive) of the letter by Wetzel, Ministry for the Eastern
Occupied Territories:

In the handwritten draft of the letter it says that the
discussion took place with Brack, the Specialist Officer for
Jewish Questions. In the subsequent typed draft it says,
with Brack and the official for Jewish Questions. This
changes the meaning.

An application will be made to examine Wetzel.

2. The Accused's position in his police interrogation is his
assumption on first sight of the documents. The Accused
initially assumes that things probably were this way, and
that he could not raise any objections to the documents.
Nevertheless the Accused immediately points out after this
that his signature is missing, thereby indicating his
doubts.

An application will be made to have the tape recording of
the police interrogation played for verification.

3. It is striking that the name of the Accused is nowhere
mentioned in the available files about the gas van matter;
such a reference would have been expected if he was
substantially involved.

82. On Paragraph 168 - Zyklon B gassings

1. The statement by Hoess, who is considered untrustworthy,
cannot be used as evidence against the Accused.

However, Hoess also admits that it was his deputy who first
came across Zyklon B as a gas for killing; thus the use of
this means of killing did not originate through the
Accused's efforts.

2. The fact that Guenther from the Accused's Department
dealt with gas matters does not exclude the Accused's
description that Guenther did this on the basis of a special
order from Mueller, about which the Accused had not been
informed.

The very fact that in his police interrogation the Accused
mentioned the difference of opinion concerning the gas
matter shows his candour and openness.

Had he had any feelings of guilt, the Accused would probably
have kept this conversation with Guenther completely secret.

83. On Paragraph 170 - The Accused's position

1. The Accused did not become a Head of Department until
towards the end of the War; until then he was simply the
Head of a Section.

2. The Accused followed his instructions to the letter and
in matters which were not routine he obtained instructions
from his superior, Mueller.

The lawyers who were employed in the Accused's Section, Suhr
and Hunsche, had practically a free hand in their area of
expertise, as the Accused had no legal knowledge. The
lawyers worked directly with the lawyers of other
departments.

3. If Guenther had dealings behind the Accused's back, this
very fact shows clearly that he had no freedom to act but
had to take this freedom secretly.

84. On Paragraph 171

The Accused's powers cannot in any convincing fashion be
deduced from the 1927 "Joint Administrative Rules for
Ministries." It is obvious that a dictatorial approach
governed proceedings in the RSHA, and democratic practices
did not hold sway.

Nor did the Accused during his period in office ever have
the opportunity to read these general rules of procedure; he
is relying on the practice as "he himself experienced it."

In a dictatorial system close dependence reigns. Orders are
issued from on high, and below obedience is shown. The Court
is making a basic error in assuming that the Accused was
free to use his discretion.

85. On Paragraph 172 - Signatures and references

The Court acknowledges that letters written in the first
person refer to the individual who heads the authority which
appears on the letterhead.

86. On Paragraph 173 - Limits of discretion

The Court's observations on the Accused's discretion as
Specialist Officer are not convincing; they are theoretical,
but ignore practice.

87. On Paragraphs 174/175 - Failure to use discretion

1. There are subordinates who submit their own drafts to
their superiors for approval.

But there are also superiors who prohibit the receipt of
such unsolicited proposals from subordinates.

In practice, there is no generally valid scheme; the
conventions in the Foreign Ministry cannot be transferred to
the Accused's Section. The Accused had no training, whether
academic or bureaucratic, and he had to take things as he
found them.

2. If Mueller once did not agree to the instructions
presented to him, as the Accused says, this is no proof that
as a subordinate he had drawn up these drafts according to
his own discrettion. According to the Accused's testimony it
should rather be assumed that he had previously received
instructions and then the implementation in a draft was
subjected to petty criticism by Mueller.

3. If Witness Six says that the Accused had greater
authority than other Heads of Sections and to some extent
"already stood alongside" Mueller, this is because there was
no Group Chief between the Chief of Department and the
Accused's Section as there was in other Departments.

It was precisely because of his direct subordination to the
Chief of Department that the Accused's position was more
awkward than that of the other Hheads of Section.

4. Wisliceny describes the Accused's behaviour in a
contemptuous fashion:

According to him the Accused is a bureaucrat who shuns all
responsibility and seeks to cover all eventualities by
obtaining the approval of his superiors.

However, this unfavourable description shows precisely what
the true situation was, to the Accused's advantage.

5. The special position referred to by the witness
Huppenkothen is also a result of the absence of the Group
Chief.

6. The description given by SS Judge Morgen after 1945 is
based on the account of one Dr. Bachmann. This hearsay
report cannot be verified. It cannot be used as evidence
against the Accused.

Nor is this description tenable in terms of its content,
because only Himmler or Kaltenbrunner could have a special
assignment, not even Mueller - let alone the Accused.

88. On Paragraph 176 - Accused's statements about his
position

1. The clash reported by the Accused in the so-called Sassen
Documents between himself and SS Standartenfuehrer Wolff is
no confirmation of any decisive position held by the
Accused.

Wolff was not an official superior of the Accused. The
Accused had to refer him and his unreasonable request to his
superior, Mueller. But this was precisely the approach which
Wolff did not want, and he spoke rudely to the Accused. As
his inferior, the Accused protected himself in his own way.

2. The Accused's opposition to emigration to Palestine was
directed less against such departures and more against the
alleged but highly unlikely order by the Fuehrer. At that
time, the practice had developed of referring in all
connections to a so-called order by the Fuehrer. In this
case what was involved was an internal bureaucratic
struggle, which the Accused fought as a subordinate for his
superiors.

89. On Paragraph 177

1. No basis is provided for the Court's interpretation of
the significance of the efforts to be covered.
2. The Accused did not on his own initiative submit to his
superior "draft orders" which arose from his own endeavours,
but in new matters he would first submit the questions with
a request for instructions. This attitude of the Accused
corresponds to the facts.

90. On Paragraph 178  Prevention of emigration - Prof.
Meyers, Holland

The exit permit which had already been issued, on payment of
foreign exchange, could not be put into effect because of
the negative attitude on the part of the Swiss authorities
concerned.

Only Himmler could take a decision on a further application
for emigration. In dealing with such an application the
Accused  individually was certainly of importance as the
intermediary Specialist Officer, and it is correct that it
was difficult to gain access to the offices in the RSHA
because of the standard security arrangements. But this
gives no indication as to the authority of the Specialist
Officer.

The decision which in the case in question was then taken by
the Accused's deputy is the rejection of the emigration that
had been requested.

The concession, of which a prospect was held out, to select
Terezin as the destination on deportation is an
insignificant relaxation in this borderline case, where
authorization to emigrate had already been granted.

91. On Paragraph 179 - Scope of duties

The Accused's duties were passing on the orders to round up
the Jews to the implementing authorities and to ensure the
availability of transport. Himmler's general orders were
decisive. The Accused's duties must be contrasted with those
of the other members of the offices: creating the legal
foundations which had to be followed by the police, issuing
the basic orders and instructions, confiscation of property,
and reception and treatment in the camps.

92. On Paragraph 180

In the characterization of the Accused as one of those who
pulled the strings, insufficient account has been taken of
the Defence documents. Taken together, these provide a more
favourable picture of the Accused.

1. The Accused's failure to be promoted is a vital
indication of the actual importance of his role.

The Accused's comments which are quoted in the Judgment, to
the effect that as Section Head he could not have risen to a
higher rank, were not properly interpreted in the Judgment.

This restriction was linked to the position as Section Head.
It would, however, have been easy to make the Accused a
Department Head, which would have opened up possibilities of
promotion. But even when the Accused finally became a
Department Head, he was not promoted.

2. The assumption in the Judgment that the Accused was not
promoted so that his important personage and his significant
activities would not to attract outside attention is not
supported by any facts. Some compensation at least for the
drawbacks in terms of promotion would have to be proved
here, such as an appropriate increase in pay or other
benefits. But the Accused together with his family remained
in modest circumstances and his activities brought him no
economic advantages.

Also under Hitler it was not customary to act in this
fashion, and where special missions were carried out, they
led to promotion and recompense.

93. On Paragraph 185 - The Accused's intentions to carry out
exterminations

If the Accused is said to have made threats about
concentration camps, this must be contrasted with the fact
that in practice he caused the emigration of the Jews of
Vienna who were in concentration camps. A total of 150,000
Jews were able to emigrate and were not imprisoned.

94. On Paragraph 195 - Letter of 28 August 1941

This letter, which concerns the halting of the emigration,
does not originate with the Accused. The letter is mentioned
several times in the Judgment.

95. On Paragraphs 223/224 - Remaining in office

The Court failed to appreciate that the Accused's statements
to which reference was made refer to two different periods.

The first request for a transfer concerned the transfer from
Vienna to Linz, the Accused's home town. This request was
made when no exterminations had as yet occurred. Had the
request been approved, the Accused would have left the
Jewish Affairs Section. Witness Six rejected this request
and prevented the Accused from leaving.

The Accused made his subsequent application to be relieved
from the Department as a matter of urgency when, under
orders, he had seen the atrocities in the East.

96. On Paragraph 236 - Measures against Jewish airmen

The statement by Justice Musmanno is a hearsay report, which
is not supported by other evidence.

The information is said to have come from General Koller. At
the time he himself was imprisoned in Nuremberg, where
Witness Musmanno questioned him.

In doing this General Koller was trying to prove that he had
acted in favour of the Allies. At the same time, he took
care to spare Kaltenbrunner, who was detained in the same
prison. He would appear to have followed watchword that one
could shift all responsibility to Eichmann, who was supposed
to be dead.

(-)Dr. Servatius
Advocate

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