17 Adar Bet 5722 (23 March 1962)

President: Dr. Servatius, please proceed.

Dr. Servatius: Mr. President, please allow me to make some short additions and emendations to my address yesterday. As to the relationship of subordination of the Advisers on Jewish Affairs and Section Heads, I submitted that Winkelmann himself had stated that the Section Head had acted upon his instructions. In this respect, I confused the event in question with another event which occurred in Romania, but which is also relevant. This becomes perfectly obvious from the perusal of the Romanian document - Defence exhibit N/6. In this document, Ambassador Killinger reports to the Foreign Ministry by a teleprint message, dated 6 August 1940, concerning the post of the Adviser on Jewish Affairs that, "he is simply subordinate to me as Adviser, without any staff and power of command, and will act according to my instructions."

Furthermore, I wish to explain in more detail the position of the Inspectors (SS and Police Commanders). The Accused considers that I have already answered in the affirmative a question put by the President of the Court as to whether these Inspectors were subordinate to the Accused. I am not aware of having given such a reply. Anyhow, such an assumption would not be correct. The relationship is as follows. The Inspectors were the local representatives of the Chief of the Security Police and the SD, Heydrich, and later on Kaltenbrunner. They were personal representatives, in the same manner as the Higher SS and Police Leaders were the personal representatives of the Reichsführer-SS. Now, the Chief of the Security Police and the SD could transmit orders to the Inspectors, through the intermediary of the seven Departments of the RSHA, also through the Head of Department IV, Müller. Whenever Müller issued an order, he could have transmitted it through the Accused's Section, and this would explain documents which might have been produced bearing the Accused's signature with the addition of the words im Auftrag (by order). Therefore, the Inspectors were not subordinate to the Accused in any way.

Finally, I wish to refer again to the Wetzel documents. I am prepared to admit, for the sake of argument, that these documents are genuine, and would point out that the typewritten drafts bear at the bottom a notation "NDHM" (by way of information, to be submitted to the Minister). Wetzel told me, in reply to a further enquiry on my part, that these drafts were not submitted and that none of them was sent off. Now, it is striking that the contents of these drafts were published. A remark Wetzel made to me - that other persons participated in drawing up this manuscript raises the assumption that the various drafts were also prepared by different persons.

Justice Silberg: I would like to understand, Dr. Servatius, whether the first draft is not a summary on the basis of which the second draft was prepared. There are no substantial differences in their contents. The first draft is a summary and constituted the basis for the preparation of the second draft. Is this correct or not? If you compare both documents, you will see that they are the same, they have the same contents, but in one of them it looks as if it had been taken down in shorthand. Is that correct or not? Dr. Servatius: In general, that is correct. However, there are some deviations.

Justice Silberg: What deviations?

Dr. Servatius: A total of four.

Justice Silberg: Four deviations?

Dr. Servatius: At present, I do not have the documents before me. It strikes you just by looking at them that one of them is substantially longer than the other.

Attorney General: I believe that there is a basic misunderstanding. This exhibit consists of two separate documents. We have one letter addressed by Wetzel to his superior and another letter from the Minister for Eastern Occupied Territories addressed to the Reich Commissioner for the Eastern Territories. These are two different documents attached to each other, typed on different typewriters and of different size. This is not the same document.

Justice Silberg: But the contents are identical?

Attorney General: They do refer to the same subject. On one occasion Wetzel writes about the use of gas, and on another occasion Rosenberg writes to the Reich Commissioner for the Eastern Territories on the same subject.

Justice Sussmann: Are you referring to T/301?

Attorney General: I am referring to T/308. There is also T/308(a).

Justice Silberg: I think you are mistaken. The longer letter is also addressed by the Reichskommissar fuer besetzte Ostgebiete (Reich Commissioner for the Eastern Occupied Territories) Rosenberg to the Reichskommissar fuer das Ausland (Reich Commissioner for Territories outside Germany).

Attorney General: One of the letters bears the date 25 October 1941, while the other letter is not dated at all.

Justice Silberg: The second letter contains the word Reichsminister and is not dated.

Attorney General: It reads "gegen Ihren Vorschlag zur Loesung der Judenfrage habe ich Bedenken" (I have objections to your proposal for the Solution of the Jewish Question). These are different matters.

Justice Silberg: The addressee is the same addressee and the writer is the same writer.

Attorney General: But these are two different letters. One cannot say that these are two drafts of the same letter.

Justice Sussmann: If these are not two drafts of the same letter, but the headings are the same, then there were not two letters written on the same subject to the same person by the same person.

Attorney General: That is possible. But if Your Honour would look at the drafts, you will see that one is typewritten and the other is written by hand. But I shall explain this when I submit Vol. 1 of the Green Series (TWL).

Justice Silberg: The first is a summary, the second is more detailed.

Justice Agranat: I want to understand this. Are you arguing that what was stated in the Judgment is not correct?

Attorney General: No. I agree with the finding of the Judgment. But we have here a draft, and it is written by hand, and there is also a typewritten draft, and that is the sum total of the drafts.

Justice Agranat: I understand that there was a minute of a conversation. This was written by hand. It contains the contents of the conversation, and thus it was found by the Judgment. The minute states who was present, one of the three is not mentioned specifically.

Attorney General: Which paragraph of the Judgment is Your Honour referring to?

Justice Silberg: 167.

Justice Agranat: Then there are two typewritten drafts in which it is stated who was the third person, namely the Accused. One of the drafts is a summary, and the second one is more detailed. In addition we have the letter dated 25 October 1941.

Attorney General: That is exactly what I am saying.

Justice Sussmann: All this constitutes one letter, two versions of one letter.

Justice Silberg: Mr. Attorney General, will you please note that the first, short, draft is actually a copy of the typed version.

Attorney General: That is correct.

Justice Silberg: And afterwards, on the basis of this draft the expanded, longer, draft was drawn up. The writer is the same person and they are addressed to the same person. The writer is the Minister for the Eastern Occupied Territories, the person dealing with the matter, Dr. Wetzel, and the addressee of the letter is the Reich Commissioner for the Eastern Territories, and they deal with the same matter.

Attorney General: These documents were submitted in the Doctors' trial, and the Court can learn from Vol. 1 what happened to them.

President: You can go into the details in your reply.

You may continue, Dr. Servatius.

Dr. Servatius: In view of this uncertainty, it is my opinion that the examination of the witness Wetzel cannot be dispensed with. His testimony is indispensable. This is a key document for all matters concerning gas.

I would like to continue from where I left off yesterday. I was talking about Hungary and the operations carried out there. In this connection we have a further subject, the so-called Feldscher Operation where the diplomatic representatives intervened to facilitate the emigration of Jews. In this matter, too, the District Court did not pay sufficient attention to the documents produced by the Defence.

First of all, I refer to Defence exhibit N/83, dated 3 July 1944. In this letter, the Reich Minister for Foreign Affairs, Ribbentrop, rejects the humanitarian efforts of the diplomats as being inopportune. This is followed by Defence exhibit N/84. This is a memorandum of an oral statement made by Wagner in the Foreign Ministry. According to this, emigration should be permitted only if recompense of value is provided. Moreover, a delaying tactic should be adopted so that, in the meantime, the evacuation of the Jews of Budapest will largely have been completed, so that in essence the intervention of diplomats will then have become pointless.

This again is followed by exhibit N/85. This is a letter, dated 10 July 1944, containing Ribbentrop's basic nullifying condition that a concession would be made to the foreign diplomats, but only if the Hungarian Government completes the transportation of the Jews to the Reich immediately and as rapidly as possible.

Considering this evidence, it is impossible to argue that the Accused had a strategy with regard to the persecution of the Jews. In my opinion, this finding of the District Court ought to be reviewed.

A case considered by the Judgment as particularly incriminating to the Accused is the deportation of the Jews from the Kistarcsa camp. The finding of the District Court that, by cunning, the Accused caused the transport to continue its journey after it had been turned back by Horthy, is questionable. The chain of command in respect of the camps has to be explained in general. The camps were under the authority of the Hungarian gendarmerie.

Smaller units of the German Security Police (SIPO) were posted to these camps. These were subordinate to the competent SIPO commander. There were four or five such commanders. Their superior was the commander of the SIPO, Geschke, and his superior was General Winkelmann. The Embassy instructed Grell to visit the various camps and to ensure that no Jews of foreign nationality be deported. However, Grell had no police powers of his own. Therefore, on the strength of an understanding with Veesenmayer and Winkelmann, the Accused was ordered to post an officer to every camp, whose duty it was to ensure that Grell's orders were carried out.

This is the explanation the Accused has given me now. Previously, it was not clear to me even in this form.

An officer of this type, appointed by the Accused, was stationed in the Kistarcsa camp. However, this officer had no authority in the camp, nor had he anything to do with the transport. Therefore, Novak, too, could not have taken the initiative for the transport from Kistarcsa.

Justice Silberg: Are you submitting that, contrary to the finding of the District Court, we should not believe Dr. Brody? What is your contention?

Dr. Servatius: I did not understand, who should not be believed?

Justice Silberg: The Court, in its finding that Novak came to Kistarcsa and ordered the deportation of 1,550 Jews, relied upon the evidence of Dr. Brody given in the Court. Are you asking us to refute these findings of the Court which believed Dr. Brody?

Dr. Servatius: Yes, Your Honour, the witness Novak was examined and testified that he did not have anything to do with this transport. The Court will have to determine which of these testimonies is to be preferred. However, the witness Grell, who likewise testified in respect of this transport, heard about it only as a rumour. Possibly, this is the rumour based upon the guesswork of the Judenrat. The Accused, too, stated that he had heard something about such a transport. The facts as found are not sufficient to find the Accused guilty with any certainty. There are other possible explanations. The Hungarian gendarmerie, which controlled the camp, and the members of the Arrow Cross, were anything but pro-Jewish, and the means of transportation were at their disposal. There were a number of alternatives for carrying out the deportation without the Accused's collaboration. In my opinion, no reliable evidence against the Accused has been produced.

Justice Agranat: Did the members of Arrow Cross actually have control?

Dr. Servatius: I understand from the documents that, formally, Horthy was still in control. However, the Arrow Cross was already very influential.

Justice Agranat: I understood that the Arrow Cross only seized power in October 1944, and that the event in Kistarcsa had happened earlier, in July, so that this alternative has to be excluded.

Dr. Servatius: Nevertheless, the Arrow Cross was active before to quite a substantial extent and intervened in the the events. That is precisely what may have occurred in this case.

I shall now refer to the march from Budapest to the Austrian border. Originally, the number of 50,000 Jews was mentioned as having been requested by Veesenmayer and Winkelmann. In my opinion, the peremptory finding of the District Court in this respect should be reviewed. The starting point should be that, after the Accused's commando was disbanded, he returned to Berlin. He did not go back, as stated in the Judgment, to the scene of action, but he was ordered to go there. His return was urgently requested by his superior in Hungary, Winkelmann, to organize the transports which had already been agreed upon with the Hungarians.

Justice Silberg: How long after Szalasi was appointed Prime Minister was it that the Accused returned to Budapest? A day or two, isn't that so?

Dr. Servatius: A timetable is in the files. I do not remember the exact dates. Anyhow, he was returned on Winkelmann's initiative after the commando had been disbanded. That is what I wanted to stress. Veesenmayer or Winkelmann, after all, knew that the deportation could be effected only on foot, for the railways had been destroyed.

Justice Silberg: I want to ask you, do you not admit that the march began approximately a month after the Accused's return to Budapest?

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