فصل 14

XIV: Evidence and Witnesses

During the last weeks of the war, the S.S. bureaucracy was occupied chiefly with forging identity papers and with destroying the paper mountains that testified to six years of systematic murder. Eichmann’s department, more successful than others, had burned its files, which, of course, did not achieve much, since all its correspondence had been addressed to other State and Party offices, whose files fell into the hands of the Allies. There were more than enough documents left to tell the story of the Final Solution, most of them known already from the Nuremberg Trials and the successor trials. The story was confirmed by sworn and unsworn statements, usually given by witnesses and defendants in previous trials and frequently by persons who were no longer alive. (All this, as well as a certain amount of hearsay testimony, was admitted as evidence according to Section 15 of the law under which Eichmann was tried, which stipulates that the court “may deviate from the rules of evidence” provided it “places on record the reasons which prompted” such deviation.) The documentary evidence was supplemented by testimony taken abroad, in German, Austrian, and Italian courts, from sixteen witnesses who could not come to Jerusalem, because the Attorney General had announced that he “intended to put them on trial for crimes against the Jewish people.” Although during the first session he had declared, “And if the defense has people who are ready to come and be witnesses, I shall not block the way. I shall not put any obstacles,” he later refused to grant such people immunity. (Such immunity was entirely dependent upon the good will of the government; prosecution under the Nazis and Nazi Collaborators [Punishment] Law is not mandatory.) Since it was highly unlikely that any of the sixteen gentlemen would have come to Israel under any circumstances—seven of them were in prison—this was a technical point, but it was of considerable importance. It served to refute Israel’s claim that an Israeli court was, at least technically, the “most suitable for a trial against the implementers of the Final Solution,” because documents and witnesses were “more abundant than in any other country”; and the claim with respect to documents was doubtful in any event, since the Israeli archive Yad Vashem was founded at a comparatively late date and is in no way superior to other archives. It quickly turned out that Israel was the only country in the world where defense witnesses could not be heard, and where certain witnesses for the prosecution, those who had given affidavits in previous trials, could not be cross-examined by the defense. And this was all the more serious as the accused and his lawyer were indeed not “in a position to obtain their own defense documents.” (Dr. Servatius had submitted a hundred and ten documents, as against fifteen hundred submitted by the prosecution, but of the former only about a dozen originated with the defense, and they consisted mostly of excerpts from books by Poliakov or Reitlinger; all the rest, with the exception of the seventeen charts drawn by Eichmann, had been picked out of the wealth of material gathered by the prosecution and the Israeli police. Obviously, the defense had received the crumbs from the rich man’s table.) In fact, it had neither “the means nor the time” to conduct the affair properly, it did not have at its disposal “the archives of the world and the instruments of government.” The same reproach had been leveled against the Nuremberg Trials, where the inequality of status between prosecution and defense was even more glaring. The chief handicap of the defense, at Nuremberg as at Jerusalem, was that it lacked the staff of trained research assistants needed to go through the mass of documents and find whatever might be useful in the case. Even today, eighteen years after the war, our knowledge of the immense archival material of the Nazi regime rests to a large extent on the selection made for purposes of prosecution.

No one could have been more aware of this decisive disadvantage for the defense than Dr. Servatius, who was one of the defense counsels at Nuremberg. Which, obviously, makes the question of why he offered his services to begin with even more intriguing. His answer to this question was that for him this was “a mere business matter” and that he wished “to make money,” but he must have known, from his Nuremberg experience, that the sum paid him by the Israeli government— thousand dollars, as he himself had stipulated—was ridiculously inadequate, even though Eichmann’s family in Linz had given him another fifteen thousand marks. He began complaining about being underpaid almost the first day of the trial, and soon thereafter he openly voiced the hope that he would be able to sell whatever “memoirs” Eichmann would write in prison “for future generations.” Leaving aside the question of whether such a business deal would have been proper, his hopes were disappointed because the Israeli government confiscated all papers written by Eichmann while in jail. (They have now been de-posited in the National Archives.) Eichmann had written a “book” in the time between the adjournment of the court in August and the pronouncement of judgment in December, and the defense offered it as “new factual evidence” in the revision proceedings before the Court of Appeal—which of course the newly written book was not.

As to the position of the defendant, the court could rely upon the detailed statement he had made to the Israeli police examiner, supplemented by many handwritten notes he had handed in during the eleven months needed for the preparation of the trial. No doubt was ever raised that these were voluntary statements; most of them had not even been elicited by questions. Eichmann had been confronted with sixteen hundred documents, some of which, it turned out, he must have seen before, because they had been shown to him in Argentina during his interview with Sassen, which Mr. Hausner with some justification called a “dress rehearsal.” But he had started working on them seriously only in Jerusalem, and when he was put on the stand, it soon became apparent that he had not wasted his time: now he knew how to read documents, something he had not known during the police examination, and he could do it better than his lawyer. Eichmann’s testimony in court turned out to be the most important evidence in the case. His counsel put him on the stand on June 20, during the seventy-fifth session, and interrogated him almost uninterruptedly for fourteen sessions, until July 7. That same day, during the eighty-eighth session, the cross-ex-amination by the prosecution began, and it lasted for another seventeen sessions, up to the twentieth of July. There were a few incidents: Eichmann once threatened to “confess everything” Moscow style, and he once complained that he had been “grilled until the steak was done,” but he was usually quite calm and he was not serious when he threatened that he would refuse to answer any more questions. He told Judge Halevi how “pleased [he was] at this opportunity to sift the truth from the untruths that had been unloaded upon [him] for fifteen years,” and how proud of being the subject of a cross-examination that lasted longer than any known before. After a short re-examination by his lawyer, which took less than a session, he was examined by the three judges, and they got more out of him in two and a half short sessions than the prosecution had been able to elicit in seventeen.

Eichmann was on the stand from June 20 to July 24, or a total of thirty-three and a half sessions. Almost twice as many sessions, sixty-two out of a total of a hundred and twenty-one, were spent on a hundred prosecution witnesses who, country after country, told their tales of horrors. Their testimony lasted from April 24 to June 12, the entire intervening time being taken up with the submission of documents, most of which the Attorney General read into the record of the court’s proceedings, which was handed out to the press each day. All but a mere handful of the witnesses were Israeli citizens, and they had been picked from hundreds and hundreds of applicants. (Ninety of them were survivors in the strict sense of the word, they had survived the war in one form or another of Nazi captivity.) How much wiser it would have been to resist these pressures altogether (it was done up to a point, for none of the potential witnesses mentioned in Minister of Death, written by Quentin Reynolds on the basis of material provided by two Israeli journalists, and published in 1960, was ever called to the stand) and to seek out those who had not volunteered! As though to prove the point, the prosecution called upon a writer, well known on both sides of the Atlantic under the name of K-Zetnik—a slang word for a concentration-camp inmate—as the author of several books on Auschwitz that dealt with brothels, homosexuals, and other “human interest stories.” He started off, as he had done at many of his public appearances, with an explanation of his adopted not a “pen-name,” he said. “I must carry this name as long as the world will not awaken after the crucifying of the nation… as humanity has risen after the crucifixion of one man.” He continued with a little excursion into astrology: the star “influencing our fate in the same way as the star of ashes at Auschwitz is there facing our planet, radiating toward our planet.” And when he had arrived at “the unnatural power above Nature” which had sustained him thus far, and now, for the first time, paused to catch his breath, even Mr. Hausner felt that something had to be done about this “testimony,” and, very timidly, very politely, interrupted: “Could I perhaps put a few questions to you if you will consent?” Whereupon the presiding judge saw his chance as well: “Mr. Dinoor, please, please, listen to Mr. Hausner and to me.” In response, the disappointed witness, probably deeply wounded, fainted and answered no more questions.

This, to be sure, was an exception, but if it was an exception that proved the rule of normality, it did not prove the rule of simplicity or of ability to tell a story, let alone of the rare capacity for distinguishing between things that had happened to the storyteller more than sixteen, and sometimes twenty, years ago, and what he had read and heard and imagined in the meantime. These difficulties could not be helped, but they were not improved by the predilection of the prosecution for witnesses of some prominence, many of whom had published books about their experiences, and who now told what they had previously written, or what they had told and retold many times. The procession started, in a futile attempt to proceed according to chronological order, with eight witnesses from Germany, all of them sober enough, but they were not “survivors”; they had been high-ranking Jewish officials in Germany and were now prominent in Israeli public life, and they had all left Germany prior to the outbreak of war. They were followed by five witnesses from Prague and then by just one witness from Austria, on which country the prosecution had submitted the valuable reports of the late Dr. Löwenherz, written during and shortly after the end of the war. There appeared one witness each from France, Holland, Denmark, Norway, Luxembourg, Italy, Greece, and Soviet Russia; two from Yugoslavia; three each from Rumania and Slovakia; and thirteen from Hungary. But the bulk of the witnesses, fifty-three, came from Poland and Lithuania, where Eichmann’s competence and authority had been almost nil. (Belgium and Bulgaria were the only countries not covered by witnesses.) These were all ‘background witnesses,’ and so were the sixteen men and women who told the court about Auschwitz (ten) and Treblinka (four), about Chelmno and Majdanek. It was different with those who testified on Theresienstadt, the old-age ghetto on Reich territory, the only camp in which Eichmann’s power had indeed been considerable; there were four witnesses for Theresienstadt and one for the exchange camp at Bergen-Belsen.

At the end of this procession, “the right of the witnesses to be irrelevant,” as Yad Vashem, summing up the testimony in its Bulletin, phrased it, was so firmly established that it was a mere formality when Mr. Hausner, during the seventy-third session, asked permission of the court “to complete his picture,” and Judge Landau, who some fifty sessions before had protested so strenuously against this “picture painting,” agreed immediately to the appearance of a former member of the Jewish Brigade, the fighting force of Palestine Jews that had been attached to the British Eighth Army during the war. This last witness for the prosecution, Mr. Aharon Hoter-Yishai, now an Israeli lawyer, had been assigned the task of coordinating all efforts to search for Jewish survivors in Europe, under the auspices of Aliyah Beth, the organization responsible for arranging for illegal immigration into Palestine. The surviving Jews were dispersed among some eight million displaced persons from all over Europe, a floating mass of humanity that the Allies wanted to repatriate as quickly as possible. The danger was that the Jews, too, would be returned to their former homes. Mr. Hoter-Yishai told how he and his comrades were greeted when they presented themselves as members of “the Jewish fighting nation,” and how it “was sufficient to draw a Star of David on a sheet in ink and pin it to a broomstick” to shake these people out of the dangerous apathy of near-starvation. He also told how some of them “had wandered home from the D.P. camps,” only to come back to another camp, for “home” was, for instance, a small Polish town where of six thousand former Jewish inhabitants fifteen had survived, and where four of these survivors had been murdered upon their return by the Poles. He described finally how he and the others had tried to forestall the repatriation attempts of the Allies and how they frequently arrived too late: “In Theresienstadt, there were thirty-two thousand survivors. After a few weeks we found only four thousand. About twenty-eight thousand had returned, or been returned. Those four thousand whom we found there—of them, of course, not one person returned to his place of origin, because in the meantime the road was pointed out to them”—that is, the road to what was then Palestine and was soon to become Israel. This testimony perhaps smacked more strongly of propaganda than anything heard previously, and the presentation of the facts was indeed misleading. In November, 1944, after the last shipment had left Theresienstadt for Auschwitz, there were only about ten thousand of the original inmates left. In February, 1945, there arrived another six to eight thousand people, the Jewish partners of mixed marriages, whom the Nazis shipped to Theresienstadt at a moment when the whole German transportation system was already in a state of collapse. All the others—roughly fifteen thousand—had poured in in open freight cars or on foot in April, 1945, after the camp had been taken over by the Red Cross. These were survivors of Auschwitz, members of the labor gangs, and they were chiefly from Poland and Hungary. When the Russians liberated the camp—on May 9, 1945—many Czech Jews, who had been in Theresienstadt since the beginning, left the camp immediately and started home; they were in their own country. When the quarantine ordered by the Russians because of the epidemics was lifted, the majority left on its own initiative. So that the remnant found by the Palestine emissaries probably consisted of people who could not return or be returned for various reasons—the ill, the aged, single lonely survivors of families who did not know where to turn. And yet Mr. Hoter-Yishai told the simple truth: those who had survived the ghettos and the camps, who had come out alive from the nightmare of absolute helplessness and abandonment—as though the whole world was a jungle and they its prey—had only one wish, to go where they would never see a non-Jew again. They needed the emissaries of the Jewish people in Palestine in order to learn that they could come, legally or illegally, by hook or by crook, and that they would be welcome; they did not need them in order to be convinced.

Thus, every once in a long while one was glad that Judge Landau had lost his battle, and the first such moment occurred even before the battle had started. For Mr. Hausner’s first background witness did not look as though he had volunteered. He was an old man, wearing the traditional Jewish skullcap, small, very frail, with sparse white hair and beard, holding himself quite erect; in a sense, his name was “famous,” and one understood why the prosecution wanted to begin its picture with him. He was Zindel Grynszpan, father of Herschel Grynszpan, who, on November 7, 1938, at the age of seventeen, had walked up to the German embassy in Paris and shot to death its third secretary, the young Legationsrat Ernst vom Rath. The assassination had triggered the pogroms in Germany and Austria, the so-called Kristallnacht of November 9, which was indeed a prelude to the Final Solution, but with whose preparation Eichmann had nothing to do. The motives for Grynszpan’s act have never been cleared up, and his brother, whom the prosecution also put on the stand, was remarkably reluctant to talk about it. The court took it for granted that it was an act of vengeance for the expulsion of some seventeen thousand Polish Jews, the Grynszpan family among them, from German territory during the last days of October, 1938, but it is generally known that this explanation is unlikely. Herschel Grynszpan was a psychopath, unable to finish school, who for years had knocked about Paris and Brussels, being expelled from both places. His lawyer in the French court that tried him introduced a confused story of homosexual relations, and the Germans, who later had him extradited, never put him on trial. (There are rumors that he survived the war—as though to substantiate the “paradox of Auschwitz” that those Jews who had committed a criminal offense were spared.) Vom Rath was a singularly inadequate victim, he had been shadowed by the Gestapo because of his openly anti-Nazi views and his sympathy for Jews; the story of his homosexuality was probably fabricated by the Gestapo. Grynszpan might have acted as an unwitting tool of Gestapo agents in Paris, who could have wanted to kill two birds with one stone—create a pretext for pogroms in Germany and get rid of an opponent to the Nazi regime—without realizing that they could not have it both ways, that is, could not slander vom Rath as a homosexual having illicit relations with Jewish boys and also make of him a martyr and a victim of “world Jewry.” However that may have been, it is a fact that the Polish government in the fall of 1938 decreed that all Polish Jews residing in Germany would lose their nationality by October 29; it probably was in possession of information that the German government intended to expel these Jews to Poland and wanted to prevent this. It is more than doubtful that people like Mr. Zindel Grynszpan even knew that such a decree existed. He had come to Germany in 1911, a young man of twenty-five, to open a grocery store in Hanover, where, in due time, eight children were born to him. In 1938, when catastrophe overcame him, he had been living in Germany for twenty-seven years, and, like many such people, he had never bothered to change his papers and to ask for naturalization. Now he had come to tell his story, carefully answering questions put to him by the prosecutor; he spoke clearly and firmly, without embroidery, using a minimum of words.

“On the twenty-seventh of October, 1938, it was a Thursday night, at eight o’clock, a policeman came and told us to come to Region [police station] Eleven. He said: ‘You are going to come back immediately; don’t take anything with you, only your passports.’” Grynszpan went, with his family, a son, a daughter, and his wife. When they arrived at the police station he saw “a large number of people, some sitting, some standing, people were crying. They [the police] were shouting, ‘Sign, sign, sign.’… I had to sign, all of them did. One of us did not, his name was, I believe, Gershon Silber, and he had to stand in the corner for twenty-four hours. They took us to the concert hall, and… there were people from all over town, about six hundred people. There we stayed until Friday night, about twenty-four hours, yes, until Friday night…. Then they took us in police trucks, in prisoners’ lorries, about twenty men in each truck, and they took us to the railroad station. The streets were black with people shouting: ‘Juden raus to Palestine!’… They took us by train to Neubenschen, on the German-Polish border. It was Shabbat morning when we arrived there, six o’clock in the morning. There came trains from all sorts of places, from Leipzig, Cologne, Dusseldorf, Essen, Biederfeld, Bremen. Together we were about twelve thousand people…. It was the Shabbat, the twenty-ninth of October…. When we reached the border we were searched to see if anybody had any money, and anybody who had more than ten marks—the balance was taken away. This was the German law, no more than ten marks could be taken out of Germany. The Germans said, ‘You didn’t bring any more with you when you came, you can’t take out any more.’” They had to walk a little over a mile to the Polish border, since the Germans intended to smuggle them into Polish territory. “The S.S. men were whipping us, those who lingered they hit, and blood was flowing on the road. They tore away our suitcases from us, they treated us in a most brutal way, this was the first time that I’d seen the wild brutality of the Germans. They shouted at us, ‘Run! Run!’ I was hit and fell into the ditch. My son helped me, and he said: ‘Run, Father, run, or you’ll die!’ When we got to the open border… the women went in first. The Poles knew nothing. They called a Polish general and some officers who examined our papers, and they saw that we were Polish citizens, that we had special passports. It was decided to let us enter. They took us to a village of about six thousand people, and we were twelve thousand. The rain was driving hard, people were fainting—on all sides one saw old men and women. Our suffering was great. There was no food, since Thursday we had not eaten…” They were taken to a military camp and put into “stables, as there was no room elsewhere…. I think it was our second day [in Poland]. On the first day, a lorry with bread came from Poznan, that was on Sunday. And then I wrote a letter to France… to my son: ‘Don’t write any more letters to Germany. We are now in Zbaszyn.’” This story took no more than perhaps ten minutes to tell, and when it was over—the senseless, needless destruction of twenty-seven years in less than twenty-four hours—one thought foolishly: Everyone, everyone should have his day in court. Only to find out, in the endless sessions that followed, how difficult it was to tell the story, that—at least outside the transforming realm of poetry—it needed a purity of soul, an unmirrored, unreflected innocence of heart and mind that only the righteous possess. No one either before or after was to equal the shining honesty of Zindel Grynszpan.

No one could claim that Grynszpan’s testimony created anything remotely resembling a “dramatic moment.” But such a moment came a few weeks later, and it came unexpectedly, just when Judge Landau was making an almost desperate attempt to bring the proceedings back under the control of normal criminal-court procedures. On the stand was Abba Kovner, “a poet and an autho,” who had not so much testified as addressed an audience with the ease of someone who is used to speaking in public and resents interruptions from the floor. He had been asked by the presiding judge to be brief, which he obviously disliked, and Mr. Hausner, who had defended his witness, had been told that he could not “complain about a lack of patience on the part of the court,” which of course he did not like either. At this slightly tense moment, the witness happened to mention the name of Anton Schmidt, a Feldwebel, or sergeant, in the German Army “a name that was not entirely unknown to this audience, for Yad Vashem had published Schmidt’s story some years before in its Hebrew Bulletin, and a number of Yiddish papers in America had picked it up. Anton Schmidt was in charge of a patrol in Poland that collected stray German soldiers who were cut off from their units. In the course of doing this, he had run into members of the Jewish underground, including Mr. Kovner, a prominent member, and he had helped the Jewish partisans by supplying them with forged papers and military trucks. Most important of all: “He did not do it for money.” This had gone on for five months, from October, 1941, to March, 1942, when Anton Schmidt was arrested and executed. (The prosecution had elicited the story because Kovner declared that he had first heard the name of Eichmann from Schmidt, who had told him about rumors in the Army that it was Eichmann who “arranges everything.”) This was by no means the first time that help from the outside, non-Jewish world had been mentioned. Judge Halevi had been asking the witnesses: “Did the Jews get any help?” with the same regularity as that with which the prosecution had asked: “Why did you not rebel?” The answers had been various and inconclusive —“We had the whole population against us,” Jews hidden by Christian families could “be counted on the fingers of one hand,” perhaps five or six out of a total of thirteen thousand—but on the whole the situation had, surprisingly, been better in Poland than in any other Eastern European country. (There was, I have said, no testimony on Bulgaria.) A Jew, now married to a Polish woman and living in Israel, testified how his wife had hidden him and twelve other Jews throughout the war; another had a Christian friend from before the war to whom he had escaped from a camp and who had helped him, and who was later executed because of the help he had given to Jews. One witness claimed that the Polish underground had supplied many Jews with weapons and had saved thousands of Jewish children by placing them with Polish families. The risks were prohibitive; there was the story of an entire Polish family who had been executed in the most brutal manner because they had adopted a six-year-old Jewish girl. But this mention of Schmidt was the first and the last time that any such story was told of a German, for the only other incident involving a German was mentioned only in a document: an Army officer had helped indirectly by sabotaging certain police orders; nothing happened to him, but the matter had been thought sufficiently serious to be mentioned in correspondence between Himmler and Bormann.

During the few minutes it took Kovner to tell of the help that had come from a German sergeant, a hush settled over the courtroom; it was as though the crowd had spontaneously decided to observe the usual two minutes of silence in honor of the man named Anton Schmidt. And in those two minutes, which were like a sudden burst of light in the midst of impenetrable, unfathomable darkness, a single thought stood out clearly, irrefutably, beyond question—how utterly different everything would be today in this courtroom, in Israel, in Germany, in all of Europe, and perhaps in all countries of the world, if only more such stories could have been told.

There are, of course, explanations of this devastating shortage, and they have been repeated many times. I shall give the gist of them in the words of one of the few subjectively sincere memoirs of the war published in Germany. Peter Bamm, a German Army physician who served at the Russian front, tells in Die Unsichtbare Flagge (1952) of the killing of Jews in Sevastopol. They were collected by “the others,” as he calls the S.S. mobile killing units, to distinguish them from ordinary soldiers, whose decency the book extols, and were put into a sealed-off part of the former G.P.U. prison that abutted on the officer’s lodgings, where Bamm’s own unit was quartered. They were then made to board a mobile gas van, in which they died after a few minutes, whereupon the driver transported the corpses outside the city and unloaded them into tank ditches. “We knew this. We did nothing. Anyone who had seriously protested or done anything against the killing unit would have been arrested within twenty-four hours and would have disappeared. It belongs among the refinements of totalitarian governments in our century that they don’t permit their opponents to die a great, dramatic martyr’s death for their convictions. A good many of us might have accepted such a death. The totalitarian state lets its opponents disappear in silent anonymity. It is certain that anyone who had dared to suffer death rather than silently tolerate the crime would have sacrificed his life in vain. This is not to say that such a sacrifice would have been morally meaningless. It would only have been practically useless. None of us had a conviction so deeply rooted that we could have taken upon ourselves a practically useless sacrifice for the sake of a higher moral meaning.” Needless to add, the writer remains unaware of the emptiness of his much emphasized “decency” in the absence of what he calls a “higher moral meaning.” But the hollowness of respectability—for decency under such circumstances is no more than respectability—was not what became apparent in the example afforded by Sergeant Anton Schmidt. Rather it was the fatal flaw in the argument itself, which at first sounds so hopelessly plausible. It is true that totalitarian domination tried to establish these holes of oblivion into which all deeds, good and evil, would disappear, but just as the Nazis’ feverish attempts, from June, 1942, on, to erase all traces of the massacres—through cremation, through burning in open pits, through the use of explosives and flame-throwers and bone-crushing machinery—were doomed to failure, so all efforts to let their opponents “disappear in silent anonymity” were in vain. The holes of oblivion do not exist. Nothing human is that perfect, and there are simply too many people in the world to make oblivion possible. One man will always be left alive to tell the story. Hence, nothing can ever be “practically useless,” at least, not in the long run. It would be of great practical usefulness for Germany today, not merely for her prestige abroad but for her sadly confused inner condition, if there were more such stories to be told. For the lesson of such stories is simple and within everybody’s grasp. Politically speaking, it is that under conditions of terror most people will comply but some people will not, just as the lesson of the countries to which the Final Solution was proposed is that “it could happen” in most places but it did not happen everywhere. Humanly speaking, no more is required, and no more can reasonably be asked, for this planet to remain a place fit for human habitation.