However, the Accused's lack of responsibility is clearly brought out by the report of the Secretary at the Swiss legation, Dr. Breslauer, made at the time of the events, and not afterwards. Dr. Breslauer certainly would not have missed the opportunity to mention this notorious main culprit. The indignation expressed in respect of this march after the War by the persons involved, Winkelmann and others, is probably connected with their desire to exonerate themselves.

The testimony of the witness, General Juettner, manifestly shows that Winkelmann dodged his responsibility. He pretended that he did not have anything to do with Eichmann, although he was his [Eichmann's] superior.

Justice Agranat: Was Winkelmann or Müller the Accused's superior?

Dr. Servatius: In Hungary, he was subordinate to Geschke and Winkelmann. Like any other person posted abroad, he remained subordinate to the heads of his office in Berlin, to which he actually belonged. This may perhaps be better explained by the relationship existing in the military hierarchy, which is more familiar to us. A paymaster receives his orders for payment from the Quartermaster's office; but, on the other hand, he is subordinate to the commander of the regiment or the battalion, and if he wants to carry out something, he has to be ordered to do so. The same applies here, so that the commanding officer was the Higher SS and Police Leader, Winkelmann.

Justice Silberg: Are you relying on the testimony of General Juettner?

Dr. Servatius: Juettner stated that he had asked Winkelmann and learned from him that the Accused was the person responsible. However, when Winkelmann was examined he stated that he could not remember having claimed that the Accused was responsible, nor having mentioned his name at all.

Justice Silberg: But Juettner stated: "I asked who is Eichmann. Winkelmann explained to me that he is a Section Head in the RSHA and not subordinate to him, Winkelmann."

Dr. Servatius: However, it has been proved beyond any doubt that he was subordinate to Winkelmann. That was, precisely, a false statement made by him to exonerate himself.

Justice Agranat: I would like to clarify the question of authority. The Higher SS and Police Leaders were subordinate directly to Himmler, as far as I understand. Did they belong to the RSHA?

Dr. Servatius: In my opinion, they did not.

Justice Agranat: Therefore, the officers of the RSHA, as well as the Higher SS and Police Leaders and the Accused, were subordinate to Heydrich, to the Head of the RSHA, or to Kaltenbrunner. But were the officers of the RSHA subordinate to the Higher SS and Police Leaders, or were there two parallel entities which kept a watch on each other? In other words, was the Accused actually subordinate to Winkelmann, or was he subordinate to the Head of the RSHA? Winkelmann was in Hungary as Himmler's representative.

Dr. Servatius: He was, at the same time, also attached to the Embassy. A document has been produced, containing instructions for the exercise of his functions, according to which he was in charge of Jewish affairs at the Embassy. Winkelmann denies this. He says that he had no knowledge of such instructions. In Hungary, where the Accused had been posted, the Accused was subordinate to him. Of course, as before, instructions were sent from the RSHA to the Section Heads and Advisers abroad.

At all events, whether Winkelmann was the superior or not, he was a Higher SS and Police Leader. He was empowered to intervene and was bound to do so. He was entitled to give orders to every one of his subordinates, but nothing actually happened. It is my impression that it is not the Accused who wants to exonerate himself, but it isthe generals who want to do so. The Accused was believed to be dead. Nobody thought of his possible reappearance. It was easy to make him the scapegoat.

I now wish to refer to the Brand Operation and the "ten per cent clause."

President: Just a moment, Dr. Servatius. A document has been produced, T/1216. The Appellant writes to his office, telling them that he is concerned because the German Embassy in Hungary might intervene against emigration, contrary to the consent which had been given. What is your explanation of this exhibit? Why would the Accused wish to inform his office of his concern that the German Embassy in Hungary might adopt a stand against permitting emigration? I think, this matter is referred to in paragraph 155 of the Judgment.

Dr. Servatius: This may, perhaps, be explained by the fact that the heads of the offices involved had some differences of opinion, namely the RSHA headed by Kaltenbrunner, and, on the other hand, the Embassy. There are various letters bearing evidence of these differences of opinion. Possibly, the Accused had taken his stand in these differences and reported thereon.

Justice Silberg: You are mistaken. Exhibit T/1216 is addressed to Guenther, and the Accused informs Guenther that steps have already been taken to ensure that the Embassy should not do anything to delay the emigration. He does not write to Winkelmann, he does not write to the Foreign Ministry. He writes to his subordinate, Guenther, to inform him that he has taken steps to ensure that the Embassy, too, will not interfere. Therefore, it seems that the explanation is not quite logical, unless you are able to explain it.

Dr. Servatius: I don't think I have been explicit enough. The letter was sent to Berlin where Guenther was acting as the Accused's deputy, and there Müller and Kaltenbrunner were one party to the dispute, and the Embassy was the other. Now, they corresponded with each other on the subject of that situation and on the measures which the Embassy would take.

President: What is not clear, Dr. Servatius, is that if the duties of the Appellant were restricted to matters of transportation, and that was also the function of the Section, why should he have been concerned that the German Embassy in Hungary had adopted a stand against emigration? Was it his business?

Dr. Servatius: That is correct, Mr. President, but where masters quarrel, the servants will also take part. It looks as if in this case that is what happened.

President: I asked this question because the Appellant's activities outside matters of transportation are shown in various documents signed by him, and not only in Hungary. This happened in connection with Bulgaria, and in connection with Norway, where he complains of the interference of the Swedish Government; not only in Hungary.

Dr. Servatius: But in my opinion, these were always cases in which the interference eventually had an influence on the transportation. After all, trains had to be provided, timetables drawn up, and if difficulties arose in the transportation, he had to find the reasons.

President: Does this apply also to his intervention, to his letter to the Foreign Ministry in connection with Romania, in which he transmits secret information on the proposed emigration of one thousand children to Palestine, and urges that appropriate steps be taken to prevent it? Does this explanation apply also in this case? There are two letters, therefore, in which he transmits to the Foreign Ministry secret information on the organization of Jewish emigration from Romania, and he urges that it be prevented by all appropriate means. Is this also because of difficulties of transportation?

Dr. Servatius: No. But the general instructions, which have been submitted, and which were drawn up by the highest political leadership - that is by Himmler, and this was also the opinion held by the Reich - state that emigration abroad is prohibited and must be prevented.

President: But what has that got to do with him?

Dr. Servatius: He had no authority in these matters and did not need to involve himself in them.

Finally, I shall refer to the Brand Operation and the "ten per cent clause." The District Court found that it was only after he had perused Joel Brand's book that the Accused adopted Brand's description of the advance delivery of one hundred thousand Jews, and that he used it for his own benefit. In my view, this is illogical. It would have been meaningful only if the Accused had made use of this in order to show that it had been his intention to save these Jews for humanitarian reasons. But the Accused did not rely on this motive. Therefore, there is no basis for the Court's assumption. The Accused was induced by his correct instinctive aversion to Becher who knew how to exploit the situation arising from the imminent collapse, by saving Jews and making financial transactions. On the other hand, it is difficult to understand how, according to the Court's assumption, the witness Brand and his wife arrived at this extraordinary clause. Brand told me, a short time ago, that this could not have been a mistake, and that all persons named in his book could affirm that he stressed again and again the importance of this clause. He told me that the persons named in the book could confirm that. But he also told me that he had submitted reports and that one of these reports is in the file of the Kasztner trial. In the meantime, I have filed an application to append this report from the file of the Kasztner trial to the record of this trial here. Should it appear from that report that the clause did exist, I shall be able to waive my further application to examine the witnesses. If, on the other hand, the report will not enable us to arrive at a clear- cut conclusion, my application to examine these witnesses will stand accordingly, and I repeat my application.

The entire matter could be discarded, for it caused neither advantage nor damage and is irrelevant to the Accused's criminal responsibility. However, the Accused is saddled with that dirty business for which the words "blood for goods" have been coined. With respect to the witness Becher, the commercial motivation is disregarded, and in exhibit N/84, which has already been mentioned, Wagner, a Foreign Ministry official, was able to propose the emigration of Jews against considerable recompense, without causing too much fuss.

The propaganda has persecuted the Accused outside the framework of this trial and wrongly stigmatized him. Allegations made in this way have to be disregarded. Moreover, it is alleged that the Accused was glad that the operation failed. This is Hansi Brand's impression. However, this impression is countered by the fact that the Accused could not have rejoiced, for the reason that through that failure he had been beaten by his rival, Becher.

A further utterance, allegedly made by the Accused, is relevant: "The mills of Auschwitz shall continue to grind." The Accused has denied, and for good reasons, having made this statement, for he had no authority in the camps. The Accused claims to have said, on the contrary: "The deportations will continue; I cannot change anything in that respect. Therefore, decisions have to be made in a hurry." If the witness Mrs. Brand was mistaken in the matter of the ten per cent clause, she may have been mistaken in the second matter as well. Seventeen years have passed since the event. I have now come to the end of this part of the appeal. I have confined myself to arguing the most important

issues and refer, as to details and further arguments, to the written grounds of appeal filed in this Court.

The summary of the material submitted in the trial by the Judgment of the Court of First Instance, has clearly emphasized the central issues. This has also enabled the Defence to become aware of uncertainties and to try to explain them. The Supreme Court now has additional and better ways to find out what actually happened and to review the Judgment.

The last ground of appeal concerns the measure of punishment.

The District Court has imposed the death penalty. It has not exercised the power - which it affirmed - to impose a lesser penalty. The Defence requests that consideration be given as to whether the punishment is not excessive. The Court will have to consider again the argument that the Accused acted upon orders from his superiors, as an agent of the state. In this respect, I refer to the basic conception of the Hague Rules on Warfare on Land.

The basic premise of these rules is that the state alone can be held responsible for the acts of its agents and recipients of commands. Up to 1914, this was the view held unanimously by all states. Since one group of states has become predominant, doubts as to the soundness of this opinion to the detriment of the vanquished have been raised. Today, no certainty exists as to how a citizen has to act. Should he obey or resist? In this respect the Convention on Genocide, which came into force on 12 January 1951, is enlightening. No mention is made in this Convention about the existence of an excuse based on superior orders, notwithstanding detailed prior discussions by the participating States.

A motion submitted at that time by the Soviet Union proposed to exclude superior orders as a ground of exemption from punishment. However, this motion was rejected by a majority of votes. The twenty-eight states voting against the proposed provision included the United States, Belgium, Sweden and Denmark. The Court ought to take into account the basic view of the majority, namely that this justification should still be considered as valid.

Municipal law does not recognize superior orders as a justification, if the act committed is manifestly punishable. The determination of the line to be drawn, beyond which a political act is to be considered as manifestly punishable, will depend upon the different interpretations given by the involved parties, according to their respective points of view.

In this respect, the special question of the criminal nature of the act carried out in compliance with an order has to be considered, if this act in itself is not punishable by law. As provided for by the general rules of criminal law, the act will be criminal only by reason of its connection with the acts of other persons. However, as distinguished from other acts classified as criminal under the rules of criminal law, in the particular circumstances under review, preparatory acts, participation in the offence and assistance, within the framework of the chain of command, may appear as having been interrupted or even totally separated by the command organization. This question may become particularly important, where refusal to obey an order is involved. The duty to obey, as imposed by municipal law, will hardly leave the subordinate any right to choose. In that case the responsibility for the offence will be borne exclusively by the last link in the chain. The Accused was not the last link.

The basic distinctions I have shown in this respect should bear weight if the questions of resistance and its consequences are considered. The life of the Accused, in particular, would have been in immediate danger, had he refused to obey. In his capacity as a person entrusted with secrets, the Accused had sworn a special oath. Disobedience was punishable by the death penalty. As to fighting units, Hitler had issued an order on 24 February 1942, according to which a person refusing to obey an order was to be shot immediately. This order applied, all the more, to members of the SS. And it was applied. In view of these circumstances, and the necessity to respect orders issued, I applied to examine as an expert, Mr. Serafim, lecturer at Goettingen University. This lecturer has testified in many trials, and according to reports in newspapers, he gave information about executions by shooting which actually took place. In view of this situation, there was no further resistance, and it could hardly be expected from the Accused.

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