29 Iyar, 5721 (15 May 1961)

Presiding Judge: I declare the fortieth Session of the trial open.

Perhaps we may, after all, reverse the order of things? I notice that Judge Musmanno is present. Perhaps it would be more convenient to complete his evidence first, before we go on to the second matter?

Attorney General: As the Court pleases.

Presiding Judge: Have you meanwhile settled the matter?

Attorney General: Yes, Your Honour. The position is as follows: Two of the items which I mentioned before noon are contained in the documents, and I would ask the Court to admit them. The others are contained in the evidence and we shall endeavour to secure them before the end of the trial, and to submit a copy of the transcript relating to those witnesses, in conformity with the decision of the Court.

Presiding Judge: Does that mean that the question has been settled for the time being?

Attorney General: I shall not question the Judge thereon, as the Court has directed.

Judge Halevi: Which two items were found in the exhibits?

Attorney General: The two items were found in documents in our possession.

Judge Halevi: Which have not yet been submitted?

Attorney General: In documents which have not been yet submitted, but which I intend to submit. But before I do so, perhaps I may be permitted to ask Judge Musmanno two further questions?

Presiding Judge: Go ahead.

[Witness Musmanno: takes the witness stand.]

Presiding Judge: Judge Musmanno, you are continuing to testify under oath.

Attorney General: Judge Musmanno, you mentioned in your evidence this morning, the name General Koller. May I just clarify this? General Koller, I believe, was the Chief of Staff of the Luftwaffe.

Witness Musmanno: That is correct, Mr. Attorney General.

Q. And he was never put on trial after the defeat of Germany in the Second World War?

A. He was not accused of crimes.

Q. With regard to two of the people who were tried by you in the Einsatzgruppen Case, I have here the document book compiled on behalf of the defendant, Heinz Jost. I have here an affidavit submitted by Dr. Werner Best, who was the representative of the German Reich in Denmark at one time, and he testified that Jost did not want to go on with the slaughter of the Einsatzgruppen. Perhaps I had better submit the whole book of documents. [He hands the witness the book of documents]. Do you remember whether this document was submitted to you in the course of the trial?

A. Yes, I do remember very definitely that documentation being presented to me on behalf of the defendant Heinz Jost.

Q. Do you remember that this was the document - that this was an affidavit by Best?

A. May I ask you if it was with regard to his being withdrawn from the Einsatzgruppen because he could not carry on these inhuman measures?

Q. Yes that's it.

A. I remember that very well.

Presiding Judge: Is Dr. Best still alive?

Attorney General: We have no information on this. We know that he was brought to trial, but what happened to him after his release - this we do not know. He was not executed.

Presiding Judge: In what case was he brought to trial?

Attorney General: He was brought to trial in Denmark, not in Germany.

Presiding Judge: Dr. Servatius, what information do you have about Dr. Best?

Dr. Servatius: I know only from the press that he is in Germany, and I have been told that because of the trial he went abroad for a short while.

Presiding Judge: Dr. Servatius, do you have anything to observe in connection with the submission of this affidavit of Dr. Best?

Dr. Servatius: Yes, I should like to reserve for myself the right to examine this witness in Germany. I shall have to locate him and to ascertain whether he has returned home.

Attorney General: I understood, Your Honour, that all the material on the Einsatzgruppen has been admitted into the record, with the consent of Defence Counsel.

Presiding Judge: That which is in the Green Series.

Attorney General: Only that?

Presiding Judge: So I understood. This was agreed upon.

Attorney General: I understood that it related to all the material that is included.

Presiding Judge: Perhaps it is necessary to examine the record. What I do remember is that we were speaking of the fourth volume of the Green Series. This may possibly be by chance, but it seems to me that this is a fact. At any rate, Dr. Servatius has asked to reserve his right to take the evidence of Dr. Best.

Attorney General: That right will be reserved to him.

Presiding Judge: Decision No. 31

We admit the affidavit of Dr. Best while preserving the right of Defence Counsel to apply to examine the witness, Dr. Best, on his part.

[To Attorney General] Out of all this collection are you only asking for this? [Points to a particular document].

Attorney General: I do not want to separate the document from the whole collection - it is preferable to submit it in its entirety.

Presiding Judge: This document is marked T/687.

Attorney General: And now, Judge Musmanno, I have another book of documents, No. 1, which was submitted on behalf of another accused who appeared before you - the accused Franz Alfred Six. Do you remember it?

Witness Musmanno: I remember that accused very well.

Dr. Servatius: Your Honour, the Presiding Judge, this is a witness who has already been summoned to give evidence before this Court. I believe that it would not be proper to listen to his affidavit here, but it would be possible to show him his affidavit for his comments when he appears as a witness.

Attorney General: I was about to submit here not the affidavit of Dr. Six but an affidavit which Dr. Six used for his defence in his own trial. This is the affidavit of Karl Burmeister, a SS Sturmbannfuehrer, who was under arrest when he made his statement.

Presiding Judge: Is Karl Burmeister still alive?

Attorney General: I have no information on that. He also does not appear on our list of war criminals, so that we do not know what happened to him.

Presiding Judge: Dr. Servatius, do you know whether he is alive?

Dr. Servatius: I do not know this man. In his case, too, I reserve my right to hear him under examination.

Presiding Judge: The same Decision will apply to him as in the case of Dr. Best.

Attorney General: Judge Musmanno, perhaps you recall an affidavit in the Book of Documents No. 1, which was submitted for the defence of Franz Alfred Six, who was charged before you, an affidavit of Karl Burmeister, which describes what happened to Six when he did not want to be in the Einsatzgruppen?

Witness Musmanno: Yes, I remember.

Q. Would you please tell the Court briefly what is contained in this affidavit?

A. [The document is shown to the witness]. I'm sorry. I think it is in German. I do not read German that well. I could...

Q. But do you remember the general tenor of the affidavit?

A. I remember very well what the episode was and what the documentation said...

Q. What did it say?

A. Well, it said that Dr. Six didn't feel that he was capable of carrying on as a leader of the Einsatzgruppen. He was the head of Vorkommando Moskau (Advanced Groups Moscow).

Q. Vorkommando Moskau?

A. Yes. And he endeavoured to be relieved. And because of his constant complaining that he couldn't go on with this, he was relieved and brought back to head Amt VII in the RSHA and thus he was still in the SD - and he still didn't like that and made further complaints and, finally, he was allowed to withdraw from that and he returned to his professorship at the University of Berlin.

Presiding Judge: This document is marked T/688.

Attorney General: This would be a good opportunity, now that the evidence has been concluded, to submit a document which, while it has no connection with the witness, nevertheless is connected to the problem we have touched upon.

Presiding Judge: But first of all let us hear the cross- examination of the witness by Dr. Servatius.

Please, Dr. Servatius, do you have any questions to the witness?

Dr. Servatius: Sir, you declared that you spoke to various people about the problem of responsibility for the persecution of the Jews.

Witness Musmanno: I did not quite catch that. It was more like a statement than a question.

Presiding Judge: Well, this was not a question - it was the introduction to a question in the form of a statement.

Dr. Servatius: What did the Reichsmarschall of the Greater German Reich declare on this subject - did he say after all that Eichmann was the man who committed these acts?

Witness Musmanno: Hermann Goering did say that Eichmann was responsible.

Q. All right. Did he declare that he himself bore no responsibility?

A. He said that he did not know that the programme of persecution of the Jews and the annihilation of the Jews had reached the terrible proportions which were referred to in the press, and then he said that the persons directly responsible for the extermination of the Jews to the extent that was reported were Hitler, Bormann, Goebbels, Himmler, Heydrich and Eichmann.

Q. So that he wanted to evade responsibility only so far as the extent of the results was concerned?

A. I don't know what was in his mind. I have given you what he said to me. If I gather from your questions, Dr. Servatius, that this reply was intended to exculpate Goering...I would like your question to be a little more explicit.

Q. Did the Reichsmarschall try to shake off any responsibility for these matters and place it on a small section head?

A. He did not refer to Eichmann as a small official. On the contrary, he made it very clear that Eichmann was all-powerful on the question of the extermination of the Jews. He went into that at great length, that Eichmann had practically unlimited power to declare who was to be killed among the Jews, chronologically, and by segment of population, what countries geographically and throughout.

Presiding Judge: Yes. Now as to the other part of the question, did Goering in this way try to evade or to deny his personal responsibility?

Witness Musmanno: If I take from this question that Goering was endeavouring to clear himself of responsibility for criminality by accusing another of that crime, it is very obvious that he did not succeed because he accused Eichmann and he was sentenced to hang, and escaped the noose only by taking poison.

Dr. Servatius: Did he tell you that on 31 July 1941 he ordered Himmler and Heydrich to bring about a Final Solution of the Jewish Question within the German sphere of influence in Europe as it says here in the Nuremberg Judgment?

Witness Musmanno: I don't remember whether he told me that, but of course it is true. But the instrumentality through which this programme was to be carried out was Adolf Eichmann. He was the man who was to determine in what order, in what countries the Jews were to die.

Q. You spoke subsequently to the former Minister of the German Reich, Ribbentrop?

A. I did.

Q. If I understand you correctly in your testimony this morning, it was Eichmann who pressed Ribbentrop to carry out his task and that Eichmann was the one responsible?

A. He did more than that. He said to me that Eichmann influenced Hitler. Of course, I'll be frank and say that I did no accept that, because I could not conceive of anyone influencing Hitler any more than one could influence a belching volcano. Ribbentrop was a cringing sycophant of Hitler and attempted to defend him, indicating and spreading vociferously that Hitler was not in the wrong. And he regretted so much that Hitler had made the mistake of putting so much power into the hands of Adolf Eichmann.

Q. Did you actually believe Ribbentop? Did you believe that what Ribbentrop said was true?

A. I disbelieved him when he said that Eichmann influenced Hitler. That to me seemed nonsense. But I did believe him, and there was no doubt whatsoever in my mind, that Hitler had the utmost faith in Adolf Eichmann and put into his hands through Himmler this programme of the extermination of the Jewish People to which Hitler had referred in his speech in the Reichstag in 1939.

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