The Nizkor Project: Remembering the Holocaust (Shoah)

The Trial of Adolf Eichmann
Session 39
(Part 1 of 5)

Session No. 39

29 Iyar 5721 (15 May 1961)

Presiding Judge: I declare the thirty-ninth Session of the trial open. Mr. Hausner, at one of the previous sessions, I think it was on Thursday, when Mr. Bach appeared, a question arose of additional affidavits of persons not in this country, the submission of which you perhaps might want to request. Mr. Bach then stated that at the beginning of the week he would inform us whether there were still such affidavits so that, if necessary, we could make the required decisions in this connection.

Attorney General: We intend to submit the full list of these affidavits immediately after the morning break.

And now, with your permission, owing to the presence in Israel of one of the witnesses whom we shall not be able to keep here, but whose evidence possibly should have been produced at the beginning or at the end, we would ask for an interval in the current presentation concerning Germany, and to call Mr. Michael Musmanno, who is present in the Court room.

Dr. Servatius: Before this witness is heard by the Court, I would request to consider the question whether his evidence is relevant to the trial so as to justify its being heard.

This witness was a judge in three of the subsequent trials of war criminals at Nuremberg. I believe that - for this reason alone - he should not appear as a witness here in order to give evidence as to what he decided at the time. It is for this Court to find the facts and to set them out.

Presiding Judge: Mr. Justice Musmanno, this is an objection to your giving evidence at all before this Court. Please stand down during the hearing of the objection.

Dr. Servatius: Your Honour, I believe that, as far as I know, in this country, too, in the State of Israel, there exists a judicial precedent, stating that the evidence of a judge should not be heard as a witness on what he has decided in previous proceedings, so as not to subject him to the risk of cross-examination. In my opinion this does not apply only to Israel.

Presiding Judge: What is this precedent?

[To the Prosecution] Perhaps one of you would meanwhile explain to Judge Musmanno what is being discussed here.

Dr. Servatius: I was told that the reference is to Criminal Case 513/60 before the District Court of Tel Aviv, before His Honour Judge Kennet. It was published in Pesakim Vol. 25, dated 15 January 1961, on page 224.

Attorney General: I think that was the case of Attorney General versus Yehezkel Sahar.

Dr. Servatius: In my view this applies not only to judges in Israel and not only to this country, but it applies to the standing of judges in general, for it is not desirable to subject a judge to cross-examination on issues which he has decided, while such cross-examination must not be denied the defence in any trial. I only have a summary of these judgments, but I have, in my possession here, the two brochures of the report and can submit them to the Court.

[Dr. Servatius submits the brochures to the Court].

According to information I have received from the office of the Attorney General, the witness is to be heard roughly on the following points: That Judge Musmanno, while a naval officer, conducted an investigation into the circumstances of the death of Adolf Hitler. I maintain that this is a matter which has no relevance to the proceedings presently before this Court.

In the course of this assignment he examined prisoners of war and other displaced persons in captivity, and he also interrogated persons close to Hitler and members of his entourage. Several of them, in their statements, mentioned, and spoke about, Adolf Eichmann, and related to his work and his activities. I believe, Your Honours, that what is likely to be heard from this witness is nothing more that hearsay evidence, and surely this is evidence which is not usually admissible in Court.

A third point: It is said that the witness was present at the trial of the war Criminals Raeder and Doenitz in his capacity as an observer at the International Military Tribunal. In these trials also, I do not see any relevance to the present case.

It is also said that he had discussions and dealings with members of the Navy and with many other accused at that trial, including - inter alia - Goering, Kaltenbrunner, Fritzche, Ribbentrop, von Neurath and others. This, too, would only be hearsay evidence and, in regard to these men, we have valid and better evidence than this hearsay evidence.

It is further said that this witness heard from members of Hitler's entourage and from the accused persons at Nuremberg that Hitler had, through Himmler, charged Eichmann with the task of carrying out the extermination of the Jews. I believe that this is a question which must be determined by this Court, and not by the witness.

On point six it is said that the witness has knowledge of Eichmann's control over concentration camps and of the Einsatzgruppen. Now this witness was not in Germany at this time and he also had no direct role in these matters as a Jew, since he is not a Jew. This witness acquired knowledge, or believes that he acquired knowledge, subsequently, and he has a viewpoint which he wishes to express before this Court, and, in my opinion, the expression of this viewpoint, this judgment of his, should not be admissible in this Court.

On point seven it is said that the witness will be able to testify about Eichmann's visits to the concentration camps and the operation groups during their action in the field. This evidence, too, cannot be more than hearsay evidence, and there are, before this Court, documents to that effect which are better evidence than hearsay evidence and, this evidence would also mean a duplication of testimony.

On point eight it is said that the witness will be able to testify about reports which Eichmann received concerning murder by shooting and the confiscation of property. These matters have also already been presented in documents, and accordingly here, too, this would mean duplication in the presentation of evidence.

With regard to point ten, the reference is to Standartenfuehrer Blobel, who has already been mentioned several times, and this witness is to testify that Standartenfuehrer Blobel submitted reports to Eichmann's office concerning executions and concerning the obliteration of traces, facts which were described by Ohlendorf, one of the accused in Case No. 9 at Nuremberg. This, too, would be nothing more than mere hearsay evidence. Apart from this, it should be pointed out that Ohlendorf's evidence was included in an affidavit in the Green Series, in Volume 4, on page 212, like the affidavit of Blobel, in connection with point 3, in the trial regarding the Einsatzgruppen.

On point 11 it is expected that the witness will present his version and his opinion on the question of superior orders. This is, undoubtedly, a purely legal question which this Court is required to determine and it is not called upon to hear what others think, what was decided in similar instances, what this learned judge himself decided.

Presiding Judge: He also said, apparently, that those who received the order could have refrained from carrying it out; or did this come beforehand?

Dr. Servatius: He is also to testify that persons who received superior orders were able to avoid carrying out the orders and that is what some did. I can produce observations to the contrary from the report of the trial before the International Military Tribunal at Nuremberg.

Judge Halevi: I understand him to say "from the judgment of the International Military Tribunal."

Presiding Judge: Dr. Servatius:, did you say "from the judgment of the International Military Tribunal"?

Dr. Servatius: Yes - from the judgment of the International Military Tribunal. On point 12 -

Presiding Judge: I have only reached No. 10. Are you dealing with each point in succession or are you omitting one or two points?

Dr. Servatius: I am proceeding from point to point, but it is possible that I combined points 7, 8 and 9 into one. On point 12 - the question of the extermination or the execution of children has also been dealt with already by the Prosecution and has been dealt with here by the production of material to substantiate it. The Court must decide the issue and the Court does not depend on the statement of a witness.

With regard to the last point, with me point No. 13, it is said that in connection with the events, we have to hear the opinions and the judgment of Judge Musmanno in the case in which he gave the judgment, in the case of the Einsatzgruppen, and also his concurrences in the judgments at Nuremberg in the cases of Pohl, Milch and in the case of the concentration camps. These judgments can be produced from the written record. There is no need to bring the witness, who cannot add to, or subtract from, the written judgment.

I, therefore, request the Court to decide that the evidence of this witness is irrelevant to the proceedings.

Presiding Judge: Mr. Hausner, do you have a copy of the statement which you handed to Dr. Servatius:? This will make things easier for us.

Attorney General: To my regret, no. At an earlier stage I obtained it from Judge Musmanno when he was abroad, and I do not have a copy of it. I can say, briefly, that Judge Musmanno will not be required to testify on many of the items mentioned in that statement.

Presiding Judge: Will you please tell us on what matters you wish to hear the evidence of the witness?

Attorney General: Certainly.

Dr. Servatius: May I submit the copy to the Court?

Presiding Judge: Yes. [Dr. Servatius submits the copy of the statement to the Court.]

Attorney General: Judge Musmanno will not testify here about matters which he already determined and wrote into his judgment, since, as Defence Counsel has already said, these matters appear on the record and there is no need to hear oral evidence concerning them. But this is the only aspect where I agree with the learned Defence Counsel. From here on, I have to disagree with him.

The Court will recall that the persons who were the superiors of the Accused, both his immediate superiors and those who were indirectly above him, are no longer alive. I can produce here neither Hitler, nor Goering, nor Himmler, nor Kaltenbrunner, nor Heydrich. I am unable to produce here other persons who were involved in these operations, such as Frank or Schellenberg, because they are no longer alive. Hence it is most important that the Court receive a picture from a man who gathered information in an official capacity concerning matters relating, inter alia, to the Accused. In the course of his investigation on behalf of his superiors in the American army, Judge Musmanno collected many items of information, while conducting his enquiry.

Presiding Judge: On whose behalf was the enquiry conducted?

Attorney General: The United States Navy.

Presiding Judge: Who arranged for this in the Navy?

Attorney General: I do not know. The United States Navy Command sent Judge Musmanno, who was then an American naval commander, to conduct this enquiry. And in the course of this investigation Judge Musmanno also conducted many interrogations regarding the extermination of the Jews. He questioned Goering, Ribbentrop, Kaltenbrunner, Frank, Schellenberg and General Koller, commander of the Luftwaffe. I think it is my duty to produce to this Court what Judge Musmanno gathered regarding the Accused in the course of his investigation.

Presiding Judge: This is evidently No. 2 in the list, is that correct? This is what you are speaking about. Please take the list. What about item 1 - that the witness investigated the death of Hitler?

Attorney General: That is merely a preamble. The investigation about Hitler will not arise here at all. It does not interest us. But in the course of conducting this official enquiry, he made an additional enquiry. Moreover, he himself, after delivering his judgment, investigated several questions connected with Nazi Germany and spoke to people for example, his conversation with Schellenberg who was the head of Bureau 7 of the Reichssicherheitshauptamt. These were not within the framework of the investigation - they were part of another investigation which the witness conducted, about which he also wrote and published.

Presiding Judge: Which investigation? Perhaps you would describe it?

Attorney General: This was an investigation which related generally to the operations of the Einsatzgruppen - 3after he had given his judgment.

Presiding Judge: On whose behalf?

Attorney General: This was a private investigation.

Presiding Judge: What happened to Schellenberg?

Attorney General: He died a year or two ago. He was one of the accused in the case of the "Wilhelmstrasse Case." He received a light punishment and subsequently died.

This is an important set of facts which I propose to bring before the Court.

I doubt whether this will be hearsay evidence at all - according to the authorities which I shall forthwith submit to the Court - but if this is hearsay evidence, I would request that it be admitted under section 15 of the Nazis and Nazi Collaborators (Punishment) Law 5710-1950.

Judge Raveh: What about General Koller whom you mentioned today - is he alive?

Attorney General: No, he is not alive. All of them are no longer alive.

Presiding Judge: Was this also within the framework of that first investigation?

Attorney General: All this was in the framework of that first investigation. Koller was with Hitler in the first days of the famous bunker of the Reich Chancellery. The information the witness heard from Koller concerning the execution of pilots who were taken prisoner, and what he heard in this connection about the Accused as well, is exceedingly important.

Presiding Judge: Koller died later?

Attorney General: Yes, he died also.

Judge Halevi: Was the Accused's superior, Mueller, in this bunker as well...?

Attorney General: No Your Honour, I do not know about that.

Judge Halevi: I believe that he conducted an investigation. He was called into this bunker in order to investigate the question of the pilots you mentioned.

Attorney General: Not in the concluding days, as far as I remember. But in this matter Judge Musmanno will certainly be able to help us. He also wrote a book entitled Ten Days to Die about the last days of the Reich Chancellery.

Presiding Judge: You say that Koller told the witness about the role of the Accused in the execution of the Allied pilots...

Attorney General: Those who had been taken prisoner.

The second set of questions which I intend, with your permission, to put to Judge Musmanno does, in fact, touch upon the case tried before him and the testimonies heard, but only on those portions which we have not found in the published record of proceedings of the Green Series. The Court will please remember that those are only very brief summaries and extracts.

Trial 9 was the trial of the Einsatzgruppen, for example, that lasted four months. If my memory does not fail me, it occupies about one-third of a volume, but there were many thousands of pages of transcripts; tens of thousands of pages, and yet we do not have it all. There were many testimonies submitted there which Judge Musmanno remembers. We should like to submit, through him, a summary of them, or their main points, and this is quite permissible, as I shall immediately show from the authorities.

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