Archive/File: people/e/eichmann.adolf/transcripts/Appeal/Appeal-Session-06-03 Last-Modified: 1999/06/15 Justice Silberg: That is not correct. The second document came from Veesenmayer. You are referring to T/1244. This is Veesenmayer's report on Grell's action. He writes: "Legation Counsellor Grell reports that it is true that the Commander of the SD (Special Commando for actions against the Jews) SS Obersturmbannfuehrer Eichmann and his deputy..." This would mean that Grell or Veesenmayer knew who was meant by the Swedish Legation when they wrote "by a Mr. Eichmann." At the end of the letter, it says: "A final description of the facts can be given, however, only after questioning Obersturmbannfuehrer Eichmann who, at present, is en route. As soon as that will be possible, a further report will be made." Dr. Servatius: No doubt the Embassy people were of the opinion that this can refer to him only, and without asking him, at that stage a statement is made to the effect that there had been justified complaints. That is to say, the Embassy was aware of these complaints. But the Embassy holds the same view, and it is quite possible that Eichmann was not the person in question, but that it originated directly from the Embassy, from Winkelmann and, through him, from Geschke. For it is certainly strange that Eichmann, who is mentioned at this stage, would have come and uttered such threats in his capacity as a messenger. It does not fit the general situation at all. In my opinion, this may even be construed as an exoneration of the Accused. For if he had been famous and notorious as alleged, they would not have written simply: "Mr. Eichmann left a message." President: Dr. Servatius, the interpreter did not understand the last sentence, would you please repeat it. Dr. Servatius: I cannot do so with certainty. I can only say that it can only exonerate Eichmann if the Swedish office did not know this notorious and dangerous person at all, but considered him as a sort of messenger. If he were as dangerous as all that, they certainly would have been aware of it. Some additional remarks concerning the concentration camps: The Accused had directed deportations to both the concentration camps and extermination camps. These were the places of destination which had been indicated to him. The fact that he was notified of the arrival of the transport cannot lead to the conclusion that the killings in the camps were carried out only upon the Accused's order. Reports of this nature were notification of implementation usually made regarding every transport. The argument put forward by the Attorney General, that the Accused had thereby fixed the date of death, is incorrect. He set the transports in motion as soon as the Reich Railways Administration made the trains available. I refer again to the testimony of SS Judge Morgen that the Accused did not have anything to do with the extermination itself. I shall now deal with the applications for taking evidence. First of all, the witness Wetzel. Regarding the production of gassing machinery, I would point out, at the outset, that all technical matters came within the province of section IID of the RSHA. This becomes apparent from the practice followed in the use of gas vans. A document, T/309, has been submitted, which is a report made by a certain Dr. Becher, addressed to Rauff and dated 16 May 1942, Section IID3. The document concerns the use of gas vans. In other documents, too, it is only this Section which is referred to in connection with the use of gas vans. As to the Wetzel documents themselves, in my opinion it seems that the name of the Accused has been inserted by mistake. I have applied to hear Wetzel as a witness. The conditions for such an examination exist. The witness could not be called in the Lower Court, as his whereabouts were then not known. No objection to the examination of the witness can be made on the grounds that the credibility of the witness has to be established first. The issue of credibility cannot be examined in advance, it has to be examined during the course of the hearing. The Court will have to decide on it. Justice Agranat The credibility of the witness is not in question, but rather the content of the testimony. Dr. Servatius: The Attorney General argued, in the beginning, that credibility is relevant, that there is no need to summon a witness who is not credible. Of course, it is also important that the testimony be relevant. If the witness Wetzel were to testify that he had never spoken to Eichmann, this would be most relevant, because it contradicts the report which has been produced. President: I am afraid that you, Sir, have not understood the remark of my learned colleague. I shall give an example: Let us assume that a trial is taking place of a person accused of theft, and that the accused has admitted that he has carried out the theft. On appeal, counsel for the defence wishes to call a witness who will testify that he had not stolen. In that case the Court is entitled to reject the application on the ground that, as to the contents of the testimony, this is not a matter which may be given credence, because the accused himself has admitted the fact that he had committed the theft. Thus what purpose would be served by a witness testifying that the Accused had not stolen? In this context, it is a question of the credibility of the content, not of the witness. Dr. Servatius: Mr. President, that is true. It is the rule in all countries that, where a confession has been made, no witnesses who would testify to something else need be heard. But the Accused denies having made such a confession, for this confession can be found only in the Sassen Document, and I have already voiced my criticism regarding this. @4Justice Silberg: Counsel for the Defence, you are mistaken. Dr. Servatius: The Accused has also made a statement to the Police - but this was one of his attempts at reconstruction. The documents were shown to him - not in their order as they are arranged here - but only fragmentarily, in particular the second exhibit according to the order, and the Accused declared "if that is written here, then I ought to have received the order to do it, but I don't remember." When only later, a month or two later, he had seen the entire set of documents, he said "that cannot have happened." Therefore, his correction is quite understandable, and you cannot consider this to be an existing confession on the part of the Accused. President: He had also said that Wetzel talked to him about this matter. Dr. Servatius: I have talked to him on the telephone. However, I could not question him, as is customary in the practice of Anglo-American law which applies here too. Under German law this is strictly prohibited and constitutes one of the most serious professional offences. Justice Silberg: Dr. Servatius, this matter has come to the knowledge of the Court through the Green Series, from the Nuremberg files. Isn't that correct? Dr. Servatius: Yes, from Brack's interrogation. Justice Silber In the Nuremberg file, Brack, an officer in the chancellery of the Fuehrer, was the Accused, and nobody else except Brack's associates. Who could have been interested, in these proceedings against Brack, to bring up the name of Eichmann? Dr. Servatius: But the most essential fact is revealed here: Brack says that Eichmann never came to see him. Justice Silberg: Brack says that during his absence from Berlin someone had written this letter behind his back. But you, Sir, know that we are dealing here with a document which had been submitted in the Nuremberg Trials, in the proceedings against Brack. The name Obersturmbannfuehrer Eichmann was not there, and someone has inserted it. I ask you: Who could have profited from the insertion of Eichmann's name? Why would someone do this? Dr. Servatius: Your Honour, but in Nuremberg a kind of myth was created. This myth centred around the name of Eichmann. It should not be forgotten that the Accused were together more or less in the same building, they met and discussed everything, so that they passed it on to each other. And when the question arose: But who did it, after all, the name Eichmann came up. We have heard it from Goering, and from Ribbentrop. All of them declared unanimously: Hitler charged Eichmann with the Final Solution. However, that cannot be correct. I now revert to the application to take evidence, namely to consider once again Joel Brand's report and to examine the witnesses, Mr. and Mrs. Brand, as well as additional witnesses. It has struck me that the Attorney General failed to rely upon a document from the Kasztner trial, although I presume that this document was available. I think that I may conclude therefrom that the report included the so-called "ten per cent clause," and it was this that was put forward by the Defence. The production of these means of evidence is relevant,in order to elucidate what were the Accused's inner feelings. President: I find it somewhat difficult to understand. On the one hand, you claim that everything done by the Appellant was on superior orders and that nothing was done without such an order. He was only an implementing clerk. On the other hand, you want to give him the credit of the "ten per cent" matter. Even if that were correct, and Joel Brand was not mistaken, then that would be in keeping with an order he had received, according to the argument of the Defence. Dr. Servatius: Mr. President, the implementation of this arrangement was ordered from above. However, the Accused claims that at first he recommended to his superiors that the ten per cent clause be included. For that purpose he travelled to Berlin several times and, as he has stated, had recommended this clause in order to make the agreement attractive and acceptable. It emerges from the fact of this offer that the Accused was not a fanatic persecutor of the Jews who acted mercilessly. The fact of the offer to permit the departure of one hundred thousand Jews contradicts this finding in the Judgment. In my opinion, the District Court, too, was aware of this contradiction; the Court thought that it could only be explained by a mistake on the part of the witnesses. I believe that the utmost significance of this document makes its admission inevitable. If the report does not include the ten per cent clause, the witnesses indicated by the Defence ought to be examined. President: All these witnesses could have been examined in the Lower Court. Perhaps the omission to do so is a consequence of the lack of familiarity with the local rules of procedure. But it happens very rarely that a court of appeal will examine witnesses, especially if the witnesses were in the Lower Court. Dr. Servatius: Mr. President, no doubt this is an unusual occurrence; but both witnesses actually testified that this clause was agreed upon. Therefore, no reason existed to call additional witnesses. However, it is surprising that the Court declared that the witnesses were mistaken. Justice Agranat What is the importance of this testimony? Is it not possible to challenge the finding of the Court that the Appellant did not initiate the proposal? Dr. Servatius: The testimony is important because it will emphasize the inner attitude of the Accused. The Accused is blamed for fanatically having done everything possible to persecute Jews. But here it would appear that he was prepared to permit the departure of one hundred thousand Jews. I now come to the application to admit the Accused's notes as evidence. These are notes which were made by the Accused after the Judgment of the Lower Court, and which are to be found in his cell. President: You cannot argue this point, because we have already told the Attorney General that he does not need to answer your application. We have already decided to reject this application without calling upon the Attorney General to reply. Are you referring to notes made by the Accused after the Judgment? Dr. Servatius: Yes, Your Honour. I was not aware that the application had already been rejected. I will not repeat it. President: It is the practice of the Court: If the respondent is not called upon to reply, that means that the appellant's argument is rejected. Dr. Servatius: At the conclusion of his address, the Attorney General emphasized in particular that the Accused does not show any sign of repentance, and that the Accused declared that repentance would not serve any purpose. This statement has to be compared with the Accused's words quoted by the Attorney General at the outset of his address - the Accused's Statement made at the outset of his interrogation in Israel. At that time, he declared that he understood that the death penalty would be inflicted on him, and that it would be improper for him to ask for mercy. This shows that the Accused does not callously pass over the exterminations. The Accused acknowledges that atonement could be required, and he is prepared to atone. But this atonement should not be meaningless. He desires to hang himself in public as a warning to the youth against anti-Semitism. This will explain the meaning of his statement that repentance is a matter for a child, and therefore it is meaningless. Repentance presupposes the existence of guilt. The Accused has always denied the existence of guilt as legally defined. However, he has admitted distinctly to feeling guilty from a moral point of view. This is the feeling of responsibility even for the acts of others in which we are involved as members of a community. In my opinion, the Accused's attitude is, from a human point of view, of higher value than hypocritical feigning of repentance. It is a desperate stand taken when confronted with the problem of being held guilty which has not been solved. This trial takes place against the background of history. Its meaning is a closed book to us. It is possible that the intention was evil, but the evil eventually turns to good. The Accused, as an individual, was thrust into the political events. His own volition was not relevant. The Accused could have chosen an alternative. But not only did he lack free reflection, he was also blinded by propaganda and outward success. Only oath and obedience existed for the Accused. This is the end of my address, and I pray this Honourable Court to refer also to the submissions made in the Lower Court, in order to decide on the facts and the legal aspects. I apply for a ruling on the applications to take evidence, and I repeat the applications made previously. [Recess] President: It has been decided to reject the Appellant's request to submit further evidence, including documents, at the stage of the appeal. The appeal is adjourned for consideration. Notice of the date of Judgment will be given to the parties. [The session concluded at 11.35]
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