10th Iyar 5721 (26 April 1961)

Presiding Judge: I declare the seventeenth Session of the trial open. Dr. Servatius, have you examined this document in the meanwhile?

Dr. Servatius: I have examined the document and it corresponds completely to the text.

Presiding Judge: Do you have anything further to observe regarding the application to submit this document?

Dr. Servatius: No. I have already said what has to be said.

Presiding Judge: I am not sure whether this applies to this document as well. At any rate you repeat your arguments in regard to similar documents.

Dr. Servatius: I repeat the contents of my earlier remarks.

Presiding Judge: Decision No. 10

We approve the submission of this document (extracts from the memoirs of Rudolf Hoess) for the same reasons as given in our Decision No. 7.* {*Court Session No. 16, 26 April 1961}

Presiding Judge: This document is marked T/90.

Attorney General: I request the Court's permission to read a number of passages from T/90 - the opening passages only.

"In the summer of 1941 - at the moment I cannot state the exact date - I was suddenly ordered to appear before the Reichsfuehrer in Berlin, and this was done directly through his adjutant. Contrary to his usual practice he confided to me - in the absence of the adjutant - the following words:

'The Fuehrer has ordered the final solution of the Jewish problem; we - the SS - must carry out this order.

'The extermination camps existing in the East are incapable of implementing the planned, extensive operations. Consequently I have made Auschwitz my objective for this purpose, firstly because of the convenient transportation situation and secondly because it would be easy to close off and camouflage the area which would be designated there for this purpose. Originally I selected a senior SS officer for this mission, but in order to avoid any problems of authority at the start, this appointment has been cancelled and you will now have to fulfill this undertaking. This is a difficult and ruthless task, demanding that the person devote himself completely, without taking account of difficulties that are likely to arise.

'You will hear more precise details from SS Sturmbannfuehrer Eichmann of the Reich Security Main Office who will come to you very shortly.

'This matter will be brought by me to the knowledge of the relevant units in due course. In regard to this order you will have to maintain the strictest silence, even as far as your superiors are concerned. After your talk with Eichmann send me the plans of the proposed construction.

'The Jews are the everlasting enemies of the German people and must be exterminated. Now, during the War, all the Jews we can reach must be destroyed without exception. If we do not succeed in destroying the biological foundation of Judaism now, then, one of these days the Jews will destroy the German people.'

"After receiving this grave order I immediately returned to Auschwitz without reporting to the unit to which I was attached in Oranienburg.

"After a short while Eichmann came to me at Auschwitz. He confidentially revealed to me the plans which were in operation for every country. I can no longer state their exact order. First to be considered, as far as Auschwitz was concerned, were Eastern Upper Silesia and parts of the generalgouvernement which adjoined it. Simultaneously and following on thereafter, dependent on the situation, would come the Jews from Germany and Czechoslovakia. Closely after this - the West, France, Belgium and Holland. He even mentioned to me the numbers of the anticipated transports but I am no longer able to quote them. We also spoke about carrying out the extermination. It was said that only gas could be considered since the disposal of the expected masses by shooting was simply an impossibility and it also involved too great a burden on the SS personnel who were to be entrusted with the implementation - in view of the women and children.

"Eichmann gave me an explanation of extermination by means of emissions of gas from truck engines, as had been carried out until then in the East. But such a method, according to him, could not be applied to the mass transports expected at Auschwitz. Killing by means of carbon-monoxide gas through showers in the wash- rooms, in the same way as the destruction of the mentally ill was accomplished in several places in the Reich, necessitated too many constructions, and the procurement of the gas needed for large masses also presented a serious problem. Consequently we did not reach any decision on this question. Eichmann wanted to find out about a gas which was easy to secure and which did not require any special installations, and advise me thereafter. We proceeded to the area in order to determine a suitable site. We considered that a farming estate in the north-eastern corner of what was subsequently a portion of the Birkenau III structure would be suitable. It was remote, protected against hidden surveillance by areas of forest and surrounding barbed-wire fences, and was not far away from the railway line. It would be necessary to store the bodies in deep pits dug in the adjacent expanse of grass. At that time we had not yet thought of burning them. We thought that by means of a suitable gas it would be possible to put to death about 800 persons at one and the same time in the buildings located there, after they had been hermetically sealed against gases. This indeed corresponded to the subsequent intake."

I ask the Court to allow me this opportunity, while I am on my feet, to comply with its request on the legal issue which it raised this morning. The legal aid given by the State of Israel both to Germany and to Austria is within the framework of the Law of Legal Aid to Foreign States 5717 (1956) and the Regulations promulgated under the terms of that law. The Court will find the Regulations in the Law Gazette of 5720 (1954), on p. 396. With regard to Germany I have in my possession the collection by Dr. Grutzner "Internationaler Rechtshilfsverkehr in Strafsachen" which deals with a mutual arrangement with Germany on extending legal aid.

Presiding Judge: In other words, does this law speak only of the aid that we give to Germany?

Attorney General: Our law speaks of the aid that we give to Germany.

Presiding Judge: Does it specify Germany?

Attorney General: No, it speaks generally about foreign countries. But in regard to the Federal Republic, there is an exchange of letters in this matter. The collection of Dr. Grutzner talks about instances of legal aid between Germany and foreign countries. In the chapter "Israel," chapter II paragraph I 8, there is an exchange of letters between the German Foreign Ministry and the Israeli Mission in Cologne. In this letter dated 7 February 1957, Dr. A. Blum, Director of the Legal Department at the Israeli Mission in Cologne notified the German Ministry of Justice that "the Government of Israel has decided to inform the Government of the Federal Republic that the Courts in Israel will extend the same legal aid to the Courts of the Federal Republic as the Courts of the Federal Republic would extend to the Courts of Israel."

The letter continues:"It is to be assumed that in this way it has been possible to meet the requirements for reciprocity within the meaning of paragraph 41 of the German Extradition Law". This is paragraph 41 Chapter I A1. And it deals with the reciprocity demanded by German law. Evidently Counsel for the Defence in his arguments this morning referred to paragraph 43 of the same law which is to be found in the same collection which, if I understand it correctly, says that the Federal Republic of Germany will assist foreign authorities to enforce the appearance of witnesses before Courts outside Germany, if indeed it is guaranteed that they will be allowed to return safely and that no criminal proceedings will be instituted against them within one week from the date on which they are required to appear in order to testify.

Presiding Judge: Would you read it in the original language?

Attorney General: I will submit the book to the Court. This is how I understand the paragraph. And with us there is no reciprocity at all in such cases, since the State of Israel is in no way able to force an Israeli citizen or any resident of the State of Israel to appear as a witness before a foreign Court, something which the German Federal authorities are apparently able to do, and therefore, obviously one cannot speak of any reciprocity concerning the granting of immunity.

This is all I can say in this matter. I also requested information from the Ministry of Foreign Affairs who advised me that the aid we extend to the competent authorities of West Germany and Austria is given within the framework of the Law for Legal Aid to Foreign States to which I have already referred, and that the legal aid which West Germany and Austria extend from time to time to the competent authorities of Israel is given within the framework of the Hague Convention concerning Civil Conventions Procedure dated 17 July 1905, published in Reshumoth: Conventions and Agreements.

Presiding Judge: And what about criminal matters?

Attorney General: As I have already stated: only within the framework of our existing law.

Presiding Judge: There is no actual experience of such matters - or have there been any such cases?

Attorney General: With regard to Austria, our Ministry of Foreign Affairs, until two days ago, could not recall that there had been any application in criminal matters. As far as Germany is concerned, there were such applications and we rendered aid.

Presiding Judge: I am referring to cases of the opposite nature, where we requested aid from Germany.

Attorney General: We have both requested aid from Germany and received it from her.

Presiding Judge: In what way?

Attorney General: By making an approach through the Ministry of Foreign Affairs, by way of the Reparations Mission, to the German Foreign Ministry and afterwards to the Ministry of Justice.

Presiding Judge: And there evidence is taken before...?

Attorney General: Before a Judge. He has the power of enforcement as we have clarified meanwhile, to compel a witness to appear before him.

Presiding Judge: Has there also been a case of taking evidence before an Israeli Consul in Austria? I do not know what the situation is in Germany. There are no diplomatic relations with her. Possibly the Purchasing Mission there has similar authority. I do not know. What do you know?

Attorney General: I am not aware of of any judicial authority, or authority to take evidence on the part of the consuls, apart from a sworn declaration.

Presiding Judge: In civil matters, under Section 15 of the Law of Evidence, it is possible to impose this function on an Israeli consul.

Attorney General: If the local Government permits that.

Presiding Judge: Yes. As far as Israeli citizens are concerned I am not certain. At any rate there is no such experience.

Attorney General: We do not have any experience in regard to Austria. And with regard to Germany, there was no need since the aid is given by means of the Courts.

Presiding Judge: Can you tell us of other forms of examination by the German Court, whether by an examination viva voce, as the Englilsh say, or by means of questionnaires?

Attorney General: Both systems exist. Sometimes we send a questionnaire and we request the judge to pose the required questions. Sometimes we ask them to conduct an examination on a particular subject and we furnish the judge with information on the general description of the matter under consideration. Where the case involves a matter under dispute, there is nothing to prevent the parties from trying to arrive at an agreement between themselves as to the questions which should be submitted, with the right to add a supplementary examination to the extent that the replies would warrant that.

Perhaps I may be allowed to add something to complete the picture. With regard to Austria, I forgot to say that there is what is called a "Note verbale" from the Austrian Foreign Office dated 25 April 1960, which speaks of an arrangement for legal aid in criminal matters, together with the proposed draft of an agreement. But so far nothing has been finalized and the question is still the subject of contact between the two countries.

Dr. Servatius: As far as I can see paragraph 43 of the Law of Legal Aid does not say that the aid is rendered only by compulsory judicial action, but if a witness should so request, he must be guaranteed free movement up to eight days after being examined, irrespective of whether the matter is a civil process or a process involving punishment or reparation.

Presiding Judge: As I have mentioned we will hand down our decision on this matter tomorrow morning.

Attorney General: I should like to repeat: My statement on the question of sworn declarations still stands, and likewise my statement on the question of taking appropriate evidence abroad within the framework of the arrangements for legal aid still stands, if the Defence wants to make use of them, as I suggested in Court on the first day of this trial.

Presiding Judge: What is the appropriate method in your opinion?

Attorney General: I would prefer examination before a judge, with the possibility of cross-examination in those cases where it will be evident that it would be relevant and necessary for the defence of the Accused.

Presiding Judge: Cross-examination?

Attorney General: Within the customary framework of a Continental Court.

Presiding Judge: And who will represent our country in this matter?

Attorney General: The State will attend to appropriate representation.

Judge Halevi: Can this be done according to the existing laws which you previously quoted?

Attorney General: In West Germany, yes.

Judge Halevi: And in Austria?

Attorney General: I hope so.

Judge Raveh: Do we know from experience how long it would take to complete these matters?

Attorney General: In one particular case we requested legal aid in January and received a reply in March. We actually obtained evidence given before a judge.

Presiding Judge: Was this also by way of a verbal examination?

Attorney General: Yes, by means of a verbal examination. This also applies to the present trial, but at a later stage. We shall submit an appropriate application. Dr. Servatius was actually invited to take part in that examination.

Presiding Judge: Was the State of Israel represented there?

Attorney General: No, we submitted to them the questions we wanted to ask.

Judge Raveh: May we assume that this is the minimum time or do you see a possibility of shortening it?

Attorney General: This depends on the circumstances. It depends how accurate is the address that they give, and the possibility of tracing the witness. Generally speaking our experience is that it need not take a long time. At any rate, if the Defence wishes to require such a suggestion, it would be best if it were to come forward now with a detailed statement, that it should do so now and that we should not lose the time passing meanwhile, that is to say, while we are bringing our witnesses and it would be possible, meanwhile, to make the necessary arrangements abroad should they so desire.

Presiding Judge: This does not mean that you are waiving - let us take for example the last mentioned matter - von Thadden. I understand from you that this does not amount to a waiver of the application to submit the statement he made, instead of examining him?

Attorney General: No, on the contrary. This is not a waiver. I only want to go as far as I can to the assistance of the Defence and say: The fact that this statement is to be submitted does not bar the way to obtaining an additional statement from him and if he has something to add on matters that happened years ago, nor does it bar the way to giving his evidence before the Court, if indeed you so desire.

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