Archive/File: people/e/eichmann.adolf/transcripts/Sessions/Session-016-04
Last-Modified: 1999/05/30

I ask the Court to permit me to submit this declaration on
pages 817-818. Here the Court will find the decision in the
Pohl case about an affidavit, the affidavit of a man who was
not available. I drew the Court's attention to the same
quotation in my previous depositions on page 841.

Presiding Judge: Was this again Hoess?

Attorney General: Yes, Hoess. On the same page the Presiding
Judge: says:

     "The Tribunal has ruled heretofore that these
     affidavits, under the basic authority, are admissible,
     and that would be true whether, as the Tribunal has
     ruled, whether or not the affidavits are available for
     cross-examination; but in the interest of giving the
     fullest disclosure and giving the defense the advantage
     of that, if they are reasonably available, then the
     Tribunal also rules that they should be produced in
     Court."

Presiding Judge: Where was this, in West Germany?

Attorney General: According to what we know from the press -
yes. In the same volume on page 752 the question arose of
the affidavit of George Messersmith in Mexico City. The
decision was:

     "The Tribunal has considered the objection which has
     been raised. In view of the powers which the Tribunal
     has under Article 19 of the Charter, which provides
     that the Tribunal shall not be bound by technical rules
     of evidence, but shall adopt and apply to the greatest
     possible extent expeditions and no-technical procedure
     and shall admit any evidence which it deems to have
     probative value, the Tribunal holds that affidavits can
     be presented, and that in the present case it is a
     proper course."

Presiding Judge: Was Messersmith the American ambassador to
Mexico?

Attorney General: I think so. Whatever the reason for that
may be, these are documents concerning whose verification
there is no doubt. They are part of the prehistory of which
Mr. Bar-Shalom gave evidence. Their authenticity is not open
to doubt. At any rate I cannot bring Hoettl here. His story
is important, as the Court will notice, for the Accused in
his statement under interrogation tried to give explanations
which differ from what Wisliceny maintains that he heard
from Eichmann regarding the number of Jews that perished in
the great Holocaust. Consequently the evidence of a man who
says that he spoke with the Accused on the same subject, and
relates what the Accused said to him - to Hoettl - on that
occasion, is relevant to the issue.

Presiding Judge: Regarding the number of Jews who perished?

Attorney General: Regarding the number of Jews. This is
important, it is relevant to the matter, and I ask you to
admit it as evidence. There are two documents: One is our
No. 7, and the other is our No. 334.

Judge Raveh:   What is the date of the affidavits?

Attorney General: One is 5 November 1945 - No. 334, the
other is 26 November 1945 - our No. 7.

Judge Halevi:  Were they both shown to the Accused in his
interrogation?

Attorney General: I am not sure of that.

Judge Halevi:  Can you check it?

Attorney General: I am certain that they were not presented
as exhibits. It is possible that they were mentioned, but I
am not sure.

Judge Halevi:  Was he questioned in regard to their
contents?

Attorney General: He was questioned in regard to the number
- without any doubt.

Judge Halevi:  Not in regard to the words of Hoettl?

Attorney General: I do not think so.

Presiding Judge: Did Hoettl give evidence at Nuremberg
before a court?

Attorney General: Not to my knowledge. Only his affidavit
was submitted, but no use was made of the right to call upon
him to give evidence. The right was given but it was not
exercised.

I merely want to conclude my remarks by saying that what was
said by the Main International Tribunal was based upon the
affidavits of Hoettl on this subject. This was the source on
which the Presiding Judge: of the Military Tribunal based
his finding regarding the six million. At any rate it was
one of the sources.

Presiding Judge: It is difficult to be certain on this
subject. There are 24 volumes of evidence.

Attorney General: Permit me to say - one of the sources  -
for they are consistent with what was said by Hoettl, and
they connect this, as Hoettl does, with the name Adolf
Eichmann.

Dr. Servatius:  I object to the submission of the two
affidavits. The witness is alive and can come here. He is
living in Austria, he is an Austrian citizen and he is
therefore not a citizen of the German Federal Republic. He
lives in Bad Aussee in Austria.

Judge Halevi:  Do you mean to say that the Prosecution must
call him as a witness for the Prosecution or do you want to
say that the Defence wishes to call him as a witness for the
Defence?

ADr. Servatius:  It seems that it is the obligation of the
Prosecution to bring the witness so that he can be cross-
examined by me. After he gave evidence at Nuremberg, he was
able to prove that he was a fighter in the resistance
movement; there were also proceedings against him and he was
acquitted. Therefore the witness can appear here. I do not
know if there is an agreement of judicial aid between
Austria and Israel. Generally speaking in agreements of this
kind there are provisions whereby the appearance of
witnesses must be rendered possible. The Attorney General
says that he does not object to this witness coming here,
but he did not say whether he would give him free entry and
protection when entering. I can imagine that the witness
would be worried whether it would be safe for him to appear
here without such an assurance.

Presiding Judge: On a point of information, Mr. Hausner, is
there an agreement of mutual judicial aid with Austria?

Attorney General: Not in the sense in which Dr. Servatius
spoke.

Presiding Judge: But does any agreement exist?

Attorney General: Yes, there are agreements on judicial aid.

Presiding Judge: Is there any Convention that has been
published?

Attorney General: No, Your Honour, not that I know of. But
we have arrangements by which we extend judicial aid to
Austria and receive judicial aid from Austria.

Presiding Judge: On the basis of which law? Is there no law?

Attorney General: Not on the basis of a law.

Presiding Judge: Not especially in relation to Austria?

Attorney General: There are definitely conventions for
judicial aid.

Presiding Judge: Apart from this I think that in the
Mandatory Law of Extradition there was a section, No. 22,
which dealt with this and the Israel Law succeeded it.

Attorney General: If I understand Defence Counsel, he was
referring to some kind of immunity for witnesses. This
certainly does not exist in any agreement.

Presiding Judge: But first of all we would want to know what
does exist in regard to Austria.

Attorney General: I am prepared to investigate this and
advise the Court.

Presiding Judge: Are there arrangements generally for the
taking of evidence locally?

Attorney General: Yes, locally.

Presiding Judge: This was also in the Mandatory Law, Section
22. Dr. Servatius, at the moment I am speaking for myself,
if we should regard it as proper to follow this course,
would you be able to obtain from Mr. Hoettl an additional
affidavit on behalf of the Defence?

Dr. Servatius:  I indeed believe that the witness will be
prepared to make such a declaration. But I presume that its
value as evidence will be much less than his evidence here
before the Court.

Presiding Judge: This is undoubtedly so.

Dr. Servatius:  I have to point out further that as far as I
know there exists an agreement for judicial aid between
Israel and the Federal German Republic, and in it, in
section 34 or 43, there is a provision by which any witness
appearing before a court here must be given free entry and
passage, and immunity for up to eight days after his
examination.

Judge Halevi:  I should like to draw attention to the fact
that according to later judgments, in later trials, after
Nuremberg it seems to me, the rule was laid down that not
every member of a criminal organization shall be accused or
found guilty even if he were accused of being a member of a
criminal organization, except in the case of certain
exceptions - that is to say, important members who were
aware of all the criminal objectives of their organizations
and who, after they had received full information, did not
cease to be members of these criminal organizations. Thus it
is not sufficient to say that this potential witness was a
member of the SS in order that he should be found guilty of
membership of a criminal organization in terms of the
Nuremberg judgment.

Attorney General: This is what was laid down in the
Nuremberg judgment of the International Military Tribunal,
that volunteer membership and remaining voluntarily after
knowing what criminal purposes are served by the
organization - these constitute a crime on the part of any
individual person and in each particular case - this was
what held in the I.M.T. itself. To what extent this will
apply to Dr. Hoettl - I am not prepared to commit myself at
the present time. When Dr. Hoettl makes an application for
an entry visa, the matter will be considered by us and then
we shall decide. We have not gone into the question of Dr.
Hoettl's past adequately enough to enable me to declare here
whether he committed an offence in terms of law or not. When
he puts in his applications, we shall consider it and take a
decision.

Dr. Servatius:  On the question of the significance of
belonging to a criminal organization there was a protracted
argument in the International Military Tribunal. I myself
had the privilege of taking up a position there according to
which this was not a judicial decision but a legislative
act.  The French Judge, Donadiieu de Vabres, and the Court
agreed with this. Therefore, proof of personal guilt is
required, and membership by itself does not suffice.

Presiding Judge: I believe that in our Law this is somewhat
different. We are, possibly, getting a little away from the
subject under discussion at present. I only want to draw
your attention to section 3 of our Law, the Law of 5710-
1950. This perhaps alters the situation.

Dr. Servatius:  May I be allowed to say a few words about
the document itself. Section 19 of the London Charter
provides for a deviation from the principles of the normal
procedure, and it was intended to make the conduct of that
enormous trial possible and to eliminate unimportant items
for the sake of accelerating the process. In Kaltenbrunner's
case there was so much abundant material that it was agreed,
and even the defence agreed, not to raise other matters.

Presiding Judge: We shall defer the handing down of our
decision on this matter until tomorrow morning, at 9
o'clock. We presume that you have concluded your arguments
on this question, Mr. Hausner.

Attorney General: On the two affidavits - yes. But we have
other material.

Presiding Judge: But I would request, Mr. Hausner, that this
afternoon you should submit to us, in the course of the
session, all the material available, all the legislative
material...


Attorney General: Diplomatic as well, since there are
exchanges of letters, since most of it is based upon
exchanges of letters.

Presiding Judge: Diplomatic as well. The material on the
question of arrangements of judical aid between Israel and
Austria, and also between Israel and West Germany.

Attorney General: If the Court will permit me, I owe the
Court a reply in connection with the picture and I am able
to give this reply.

Presiding Judge: After the adjournment. We shall now have a
break for twenty minutes.

Presiding Judge: Mr. Hausner, you wanted to say something
before the adjournment about the picture.

Attorney General: I wanted to say that Bureau 06 did in fact
photograph this picture from a German weekly. It is not
possible to determine with certainty which of the two: Der
Stern or Der Spiegel. The picture appeared in one of these
two weeklies. The original was not retained after the
Accused's interrogation. We are also not able to refute the
Accused's contention that he did not sign below the picture,
but that possibly he signed on the back of the picture with
the same signature that appears here under his likeness: "SS
Obersturmbannfuehrer Adolf Eichmann A.D."

At this stage I also want to bring to the notice of the
Court, if I may, a letter from Professor Salo Baron, who
discovered two inaccuracies in the record. He asked me to
read this letter to the Court, since he has left the
country. He writes to the Court as follows:

     "Re Criminal Case 40/61, Attorney General versus Adolf
     Eichmann. The date is 25 April 1961. I saw today the
     protocol of my evidence at yesterday's sitting of the
     Court and noticed that two errors crept into the
     remarks recorded as coming from me.
     
     (a) The number of charitable loan funds in Poland was
     826 and not as recorded in the protocol..."

Presiding Judge: What is recorded in the protocol?

Attorney General: 286. I think the figures were reversed.

(b) Yugoslavia, and included in it Serbia and Croatia, were
liberated by the army of Tito and not by the army of
Michaelovich or other armies, as it is recorded erroneously
in the protocol.

Presiding Judge: Was "Michaelovich" mentioned in the
protocol?

Attorney General: Yes.

     "...In view of the fact that I am about to leave the
     country tomorrow morning, I shall not, to my regret, be
     able to come to Court personally in order to put the
     matter right and I shall be grateful to the Court if it
     would kindly insert these alterations."

Seeing that there is nothing here which can in any way be to
the disadvantage of the Accused, and the issue arises only
for the sake of putting the record right, I ask the Court to
accept this letter and give instructions for the alterations
as requested.

Presiding Judge: I think there is no need to accept the
letter. Dr. Servatius, you have nothing to remark on this?
Mr. Hausner, you have read the contents of the letter into
the record and the record will be corrected accordingly.

Dr. Servatius:  I agree.

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