I now turn to the Second Count.

The Second Count charges the Accused with crimes against the Jewish People for having committed the following acts: Removal to labour camps; confinement in ghettos; detention in transit camps and other places of concentration; carrying out of deportations under inhuman conditions.

The following facts disprove the Accused's responsibility:

The labour camps were under the control of the Economic- Administrative Head Office. As indicated by its name, this agency had been entrusted with carrying out economic functions. This included the assignment of detainees for labour in camps, and the administration of these camps. The Accused had no influence on that. The establishment of ghettos in the Eastern Occupied Territories came within the province of the local commanders in charge of the territories in which the ghettos were situated. It is true that the Accused attended the meeting, at the time of the liquidation of the Lodz Ghetto and its planned transformation into a concentration camp; however, he was there only as Himmler's representative. It does not result therefrom that the Accused was vested with general authority in the matter. On the contrary, it shows that in the normal course of administration he had no authority and himself did not possess any powers.

Most of the many witnesses who have testified as to this Count do not mention the Accused or his Section, although this might have been expected, in view of the Accused's present prominence. Only the witness Diamant declares having seen the Accused at Theresienstadt. However, he is unable to state whether the Accused was instrumental in the organization of a transport of inmates for labour at another place.

The concentration in transit camps and other places of concentration was the preparation for transportation to other places. This concentration was carried out by the local commanders in charge of the territories in question - thus, in the Netherlands it was the Reich Commissioner, in France the Commander of the Security Police and the SD, who was attached to the military commander. In Hungary it was carried out by the Hungarian Government, by the gendarmerie, or by members of the Arrow Cross organization. The situation was similar in other countries.

None of these higher-ranking agencies was subject to the Accused's orders or control. In all these places, the rank of the commanders was far higher than that of the Accused. They received their basic political instructions directly from the political leadership. Through the intermediary of the Accused's Section, and upon pressure exercised from above, only police enquiries as to the progress of the matter, and reminders to carry out the deportations, were transmitted.

As to the directions to carry out deportations in conformity with the political planning originating from authorities of the highest rank, I refer to Himmler's letter of 2 April 1943, to the Head of the Security Police and the SD,in which it was demanded that the deportations be accelerated. A letter from the Commander of the Security Police in the Netherlands, dated 5 May 1943, and addressed to his subordinates, is most explicit in that respect. According to that letter, Reichsfuehrer-SS Himmler wants the utmost possible number of Jews to be transported to the East during that year. Directions were issued for the carrying out of the transports, which were apt to secure a more tolerable way of transportation. It is to be assumed that normally these directions were followed; but possibly extraordinary circumstances may have occurred, owing to the obstruction of the flow of traffic because of the events of the War. This is a force majeure.

I now turn to the First Count. The First Count contains the main charge against the Accused: crimes against the Jewish People committed by the killing of millions of Jews.

It is claimed that the Accused bears the main responsibility for the execution of the plan which existed for the extermination of Jews. This charge is in conformity with the judgment of the International Military Tribunal. In that judgment it is stated, in conclusion, that Hitler had charged Adolf Eichmann with carrying out the extermination of the Jews. Apparently the united efforts of the accused in the Nuremberg Trial, and of the witnesses, succeeded in convincing the International Military Tribunal of the truth of that allegation. However, this allegation is not true. There is not even a hint that Hitler personally ordered the Accused to carry out the plan of extermination. When scrutinizing the sub-paragraphs of the First Count, the following comments on each of the charges have to be made:

First Count (b): In this matter the decisive role of the Accused in the execution of the measures taken against the Jews is referred to. However, the Accused was always only the Head of a Section to which subordinate officers in charge of certain specific matters had been assigned. His functions were distinguished only by the scope of his activities and the wide ramifications concerning the measures which had to be carried out.

First Count (c): The function of the Section was, inter alia, the seizure of the Jews; the actual carrying out of these measures was the task of the Gestapo, where only the Chief of the Department, Mueller, was empowered to give instructions, but not the Accused in his capacity as Head of a Section. However, the seizure of the Jews was carried out not only by Department IV, but in this matter also regional leaders of the Party (Gauleiter) and district officers (Landraete) were active. They had been empowered to give instructions to the Gestapo, and they actually exercised these powers. In this connection, I refer to the deportations from Alsace and Baden which took place on Hitler's orders, given at the direct requests of the regional leaders. Instructions in respect of measures of extermination in Germany: It was not within the scope of the Accused's authority to issue instructions to the local police authorities for the extermination of the Jews. The agencies of the State Police (Staatspolizei) were not made a part of the plan for the extermination itself.

Furthermore, the Accused is charged with the execution of measures of extermination concerning the Emigration Offices in Berlin, Vienna and Prague. He is not charged with having committed crimes of extermination, in his capacity as commissioner during his tenure in these offices. He is charged with having given directions to these offices from Berlin, which resulted in the extermination of the Jews.

The object of the Centre for Emigration was not extermination, but the furthering of emigration. Emigration was actually promoted vigorously up to the beginning of the campaign in the East. In Berlin, the Accused was not the head of the Central Office for Jewish Emigration; that was Heydrich, and Mueller was its director. The employment of the Accused in that office began after it had already been established. The Accused began to exercise his functions only after 14 October 1939. On that date, his predecessor, Lischka, in his capacity as Mueller's or Heydrich's representative, still signed documents. On 21 September 1939, at an important conference - the object of which was the removal of the Jews from the Reich to the East and the establishment of ghettos in the cities - the Accused had not yet taken up his functions in Berlin. This appears from Dr. Loewenherz's Report, dated 4 December 1939, according to which the Accused had only then taken over the Reich Centre for Jewish Emigration. The testimony to the contrary by the witnesses Cohen and Meyer probably refers to Eichmann's visits in Berlin, at a time when he was still head of the Centre in Vienna. Moreover, the following has to be pointed out: In the beginning of February 1940, Jewish Affairs still belonged to Section IVD3 which was administered by Schroeder. On February 5th, 1940,the Accused was still in charge of the Section for Emigration and Evacuation which was not involved directly in Jewish Affairs.

First Count subparagraph (d) concerns directions given to the Commanders of the Security Police and to Advisers on Jewish Affairs. It is not correct that the Accused, in his capacity as Section Head, could have given directions to the Commander of the Security Police. The power to do so was vested only in the Department Chiefs themselves, within the scope of their respective professional assignments. The Advisers on Jewish Affairs attached to the Commander of the Security Police received instructions of a professional nature from the Head Office for Reich Security through the intermediary of the Accused. However, their implementation was subject to approval by the Commander of the Security Police who, within the scope of his authority, was politically responsible. On his part, he was answerable for his activities to the Superior Commander of the SS and the Police, who was his superior. In view of this administrative structure, the Accused cannot now be made responsible for the measures executed by the Commander of the Security Police.

Subparagraph (e) deals with the activity of the Advisers on Jewish Affairs attached to the diplomatic missions. Two kinds of officials dealing with Jewish affairs were employed with these missions: Advisers on Jewish Affairs who were engaged upon the recommendations of the Head Office for Reich Security and who were subject to the instructions of that office in matters of a professional nature, and others who were subject to the exclusive control of the Foreign Ministry.

No instructions in matters of a professional nature were given by Department IV without the consent of the Foreign Ministry, or the head of the mission concerned. On the other hand, reports of the Adviser on Jewish Affairs to the Head Office for Reich Security were countersigned by the head of the mission. After the end of the War, the Foreign Ministry was glad to deny the existence of its authority, and was ready to shift the burden of responsibility for all the measures against the Jews to the Head Office for Reich Security, in particular to the Accused. However, the responsibility of the Advisers on Jewish Affairs attached to the diplomatic missions, as well as of the Foreign Ministry itself, emerges from the documents produced in this Court.

Presiding Judge: There will be a recess of twenty minutes.

[Recess]

Presiding Judge: Dr. Servatius, please continue.

Dr. Servatius: I now turn to the main charge in the First Count (f): Extermination of the Jews in extermination camps.

The extent to which the Accused is responsible for the events, for having transported the Jews to the extermination camps, knowing the fate awaiting them - that is a question I shall deal with later on.

In this connection, it has to be stated, first of all, that these camps were not under the control of the Accused, or of Department IV of the Head Office for Reich Security. They were under the control of the Economic-Administrative Head Office. The co-operation between these offices was ensured by Himmler's staff. The Head Office for Reich Security was a central office and ranked, therefore, equally with the Economic-Administrative Head Office. In this connection, one is struck, first of all, by the fact that no documentary evidence has been produced showing co-operation between the Accused and the extermination camps. This important fact cannot be gainsaid by circumstantial evidence. In the course of his interrogation, the Accused, on his own motion, gave information of his repeated visits to places of extermination. His statement that he had been sent to these places by his superiors, in order to report on the progress and the kind of activities carried out there, ought, therefore, to be believed.

The charge advanced by the Prosecution that the Accused ordered the use of Zyklon B in Auschwitz is contradicted by the description of the witness Hoess in his memorandum dated 11 November 1946. Hoess states in that memorandum that his deputy, Fritzche, had by chance conceived the idea of using Zyklon B. The weight of the charge made by Hoess that the Accused, in the summer of 1941, transmitted the orders for extermination, is also diminished by the lack of evidence to corroborate it.

The same applies to Gerstein's testimony who, in exercise of his functions, had been charged with the supply of the gas. Even assuming that he had talks with Guenther on the subject of the supply of gas, this is insufficient evidence of the Accused's knowledge and approval.

Eichmann came to the Auschwitz camp in order to intercede on behalf of the member of the Vienna Jewish Council, Dr. Storfer. This does not prove that the camp was under his control. Had that been so, then he would not have needed to visit the camp, in order to ask for a favour, but he could have given an order from above. This visit shows precisely that he was powerless. Moreover, the fact that other members of the Jewish Council, Dr. Eppstein and Edelstein, as well as the resistance fighter Gisi Fleischmann, were deported for extermination during the Accused's stay in Hungary, is not convincing proof of the competence of Group IVB for the extermination process. Gisi Fleischmann had possibly been arrested in connection with the insurrection in Slovakia. It has not been elucidated what were the reasons regarding the aforesaid members of the Jewish Council. Anyhow, the responsibility of the Accused has not been proved.

As to the collection of skeletons: The affair of the supply of detainees for the collection of skeletons in the University of Strasbourg, constitutes some evidence of a certain connection between Section IVB4 and the extermination camps, and its competence in respect of them. However, the Accused is not approached by his superior, or another superior office, but by Reichsleiter Brack at the Fuehrer's Chancellery. The director of Ahnenerbe is sent to him. This method, which is contrary to administrative procedure, is peculiar. It is also peculiar that the director, Sievers, does not ask for a directive from the Accused to the camp authorities, but merely for his assistance in carrying out the project of the University of Strasbourg. Later on, Sievers once again approaches the Accused's Section in the same manner as he had done before. No evidence has been adduced to show that the Accused actually gave any directive. The Accused himself has commented on this affair, and I refer to his comments.

First Count (g) concerns shooting by Operations Units in Poland. In order to prove this co-operation of the Accused with the Operations Units, reference is made only to Wisliceny's testimony which, however, lacks corroboration. Wisliceny was convicted as an accessory to the extermination of Jews. His testimony is therefore insufficient evidence for the guilt of the Accused as an accessory.

First Count (h) charges the Accused with co-operation with the commandos of the Operations Units in the Baltic countries, the adjacent territories, and the USSR.

The Accused's presence - reported by himself - at the appointment of the leaders of the commandos, on the occasion of the establishment of the commandos, does not amount to evidence for the existence of co-operation. The testimony of the Accused that, when these general directives were issued, no directives for extermination were given, ought to be believed. Only the commanders in question personally were normally informed of special instructions given as the result of a conference. Neither are the reports on events received from the Operations Units evidence for co-operation with these units. The reports were sent to a great number of official agencies for their information, without implying thereby, by any means, that they were to co-operate.

The witness von dem Bach-Zelewski shared a cell in Nuremberg for a long time with Ohlendorf, who had been the commander of such an Operations Unit. He has declared that Ohlendorf never mentioned Eichmann's name in connection with the operations of the commandos.

As to subparagraph (i): This charge deals with the extermination of Jews in Riga, Kovno and Minsk, at the end of 1941. It is correct that, at that time, the Accused dealt with the deportation of Jews from Germany, France and Czechoslovakia, and that these Jews were brought to ghettos. However, at that time the Accused had no knowledge that the fate of these Jews was to be shot by commandos of the Operations Units. From the report of the commander of the Operations Unit in Riga, it emerges that on 30 November 1941, the Higher SS and Police Leader started the shooting of deportees. No evidence of any influence of the Accused on these killings has been adduced.

Subparagraph (j) concerns labour camps. In this connection, I refer to my prior comments on the Second Count (a). Accordingly, the responsibility lies with the Economic- Administrative Head Office.

Subparagraph (k): Killing of hundreds of thousands during the years 1939 to 1945 by mass deportation and detention in concentration camps, transit camps and ghettos.

The Accused dealt with the deportation from the countries mentioned in the indictment. However, this does not apply to the territory of the USSR and the Baltic countries. This emerges from the material which has been produced. In the voluminous files concerning the deportations, no information in respect of the last-mentioned territories can be found. The Accused's statement that he was not involved in the deportations from the Eastern Occupied Territories is thereby confirmed. The Accused also did not carry out any deportations from Italy. This is confirmed by the statement of the witness Kappler. The measures on which he was able to testify were ordered directly by the Reichsfuehrer.

As to the detention of Jews in the transit camps of Drancy in France and Westerbork in Holland, this was carried out by the specific commander of the Security Police. The exercise of the power of command by these commanders is well documented by the book of the lawyer, Mrs. von Taalingen- Dols, Der Kampf um ein Menschenleben (The Struggle for the Life of One Man).

As to the ghettos and labour camps in the Eastern Occupied Territories, I refer again to the closing brief and my prior comments.

The last subparagraph of the First Count (l) - refers to the events in Hungary. It is hardly correct to say that the Accused was actually the "Master" in Hungary. If he should have made that boast, it was probably the result of the journalist's urge to raise somewhat the importance of the Accused's personality. These events were motivated by Veesenmayer, Winkelmann and Geschke. Eichmann was Geschke's subordinate, in charge of specific matters. These men attacked the Jewish Question with verve, and, in that respect, they enjoyed the most eager collaboration of the Hungarians.

In the beginning, the Accused had to wait for the orders of his superiors. He did not need to exercise any influence upon the Hungarians. The leading Hungarian personalities were violent anti-Semites and prepared to do everything on their own volition. They pushed forward on their own motion. The plans made together by the Hungarians and the German leadership were therefore carried out, in the first place, by the Hungarian gendarmerie and members of the Arrow Cross organization.

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