Archive/File: imt/tgmwc/tgmwc-19/tgmwc-19-183.02 Last-Modified: 2000/10/12 DR. PELCKMANN: I said that these documents do not show clearly that experiments carried out abroad were made on real volunteers, whereas I contend that on testimony given up to now, those in concentration camps were. It - THE PRESIDENT: I was only asking you what these documents that you are speaking of, Nos. 101 and 102, said. Did they say that they show that the people who were experimented on volunteered for the experiments? DR. PELCKMANN: No. I said, Mr. President, that it is different, and neither one nor the other of the documents states quite clearly what the position was. One document seems to indicate that the people did not volunteer. What appears of more importance to me is that - [Page 184] MR. ELWYN JONES: If the Tribunal please, I do not think that the defending counsel's statement should go without challenge. It appears from the Document 101, the report from the magazine, which is not a scientific magazine - it is the Time magazine, which I understand is not a work of science - that the extract is silent on the question whether the persons who were used for these experiments were volunteers. The second extract from Document 102 states quite clearly that the subjects of the experiments were volunteers. DR. PELCKMANN: Quite right. The second document deals with voluntary experiments. The first document, however, leaves the question open. But I conclude from circumstances shown in the document that it does not seem to be absolutely certain whether there were volunteers. It is an extract from a fairly recent publication, Time, of 24th June, 1946, dealing with a new remedy for tuberculosis. American scientists carried out experiments with anti-tuberculosis inoculations on 3,000 Indians. Half of them were inoculated with this drug. Half suffered a harmless self-infection; 440 tuberculosis cases developed; 185 cases did not show any reaction, and 38 died. And these experiments were carried out on Indians who were free from tuberculosis. The other document is a German translation of an American book An American Doctor's Odyssey, written by an American doctor. In it he describes how the research worker, Fraser, experimented with the well-known disease of beriberi on criminals in Bilibid who, as the prosecution has mentioned, earned for that a small perquisite and, if the experiments were dangerous, they could obtain a reduction in their sentence. These experiments were made on the inmates of the lunatic asylum of Kuala Lumpur and were carried out in the following manner. Part of the inmates were given unpolished rice to eat, and part were given polished rice. The second group of these inmates became ill. Then the two groups were exchanged, and the sick became healthy and the healthy sick. The effect of these experiments and of the disease in general is very severe. Finally the patients can no longer leave bed and often die of a weak heart. I quote from this book: "I shall not forget the impression made upon me by the huge hospital for beriberi incurables at Singapore, where these poor people were crawling around on their hands - " THE PRESIDENT (interposing): We do not need all the details of it. DR. PELCKMANN: I am merely going to say that we are concerned here with a contested scientific opinion - MR. ELWYN JONES: I am intervening again. But such a sinister implication is being given by the alleged purport of these extracts by defending counsel that I really must protest. The report that is given is of the symptoms of beriberi; it is not an account of the result of these experiments at all. The experiments took this form: That some Malayans were tested with their ordinary diet of polished rice, which is said to bring on beriberi; other prisoners were tested with a diet of unpolished rice. And it was roved that a diet of polished rice, which is their usual diet, brought on beriberi. There is no sinister import. There is no Dr. Rascher element about this. DR. PELCKMANN: I should like finally to come to the subjective angle. It is alleged by the defence that these experiments too were kept extraordinarily secret. And if they had become known - THE PRESIDENT: We have got the essentials of the arguments. DR. PELCKMANN: Thank you. THE PRESIDENT: We will hear now from the United States Prosecutor with reference to the General Staff and High Command, the SD and the Gestapo. [Page 185] MR. DODD: Mr. President, with reference to the SD and the Gestapo we have come to a complete agreement with the defence counsel so there is no contest concerning the documents. They number some 150 pages for the Gestapo and some eighty pages for the SD. With reference to the High Command and the General Staff, we have not been able to agree on a few documents. In the first Document Book No. 1, Document 5, we have objected to its translation certainly, because it has to do with the knowledge of General Busse about the political feelings of some of the generals towards National Socialism, and it is simply his own opinion and does not purport to be anything more. Attached to it are graphs and charts and so on, and it is quite clear that it is based upon opinions which General Busse has gathered from conversations with other people. There is nothing to show that he is any authority on the subject or would be in a position to know any more than any other man ordinarily would. Document 8 we also object to, because again it is an instrument based upon General Winter's collection of the opinions of other people. In so far as we can tell, General Winter made some kind of a poll - a private poll, to be sure - of his associates, and asked them what their opinions were. And he - THE PRESIDENT: What is the nature of the actual document. Is it a publication? MR. DODD: No, Sir, it is not. It is in a form of statement by General Winter. THE PRESIDENT: Is it sworn to? MR. DODD: Yes, Sir, it is. THE PRESIDENT: Busse and Winter, they are both sworn, are they? MR. DODD: Yes, sir, they are and they both submitted their statements. THE PRESIDENT: And what is the date of them, 1946? MR. DODD: Yes, sir, a very recent date - June or July, 1946. Document 9 is of the same character again. It is a statement based on written opinion. In the case of all the statements which have been supplied by members of the German armed services, this applies at any rate to all of these statements which are affirmed to and sworn, no statement has been sworn to by themselves. The individual who makes the affidavit goes about and inquires, states on his oath that these things are true, or represents that they are, without any showing that the persons who gave him the information have done so on an affirmation or on oath. Document 11 is a newspaper article about General Marshall's report to the Secretary of War of the United States. That has already been introduced here by the defence and our objection is somewhat technical, but I think nevertheless necessary and of value. We feel that a newspaper extract should not be used, particularly when the document itself is in evidence, and if the counsel will only use what already is in evidence, there will be no objection. It is Jodl Exhibit 56. We have not been able to make that clear to the defence counsel, so far. Document 13 is again a statement by General Winter, based on another one of his private polls of his fellow-prisoners, concerning their attitude toward the so-called Commissar Order, and besides, this matter has been handled before the Commission established by the Tribunal, and there objections were made to and sustained by the Commissioners. But in any event, we object again here, even to the translation, because it seems of no value at all to have General Winter's submitted statement based on this kind of information. Document 20 is a letter, written by a General Seidler. THE PRESIDENT; One moment, Mr. Dodd - go on, please. [Page 186] MR. DODD: The letter written by General Seidler, of course, is not a sworn statement. This is Document 20 and we objected to it on that ground. Besides we have very grave doubt about its value in any event. Document Book 2 contains one document which we object to. That is Document 15. That also is not an affidavit, but an unsworn letter from General von Gravenitz to General von Kleist; it is written under the date Of 24th June, 1946, which, in our judgement, makes it valueless; and we do not see that it would be helpful in any event to the Tribunal. Other than that, we have no differences. THE PRESIDENT: Mr. Dodd, will you tell us with reference to these documents that you object to, how long they are? MR. DODD: They average, from what I see of the German text, two to three pages and attached to some are drafts. Do you mean the whole, in total? THE PRESIDENT: Yes, take them in order, starting with No. 5. MR . DODD: That has two pages. It is the statement with the draft attached to it. THE PRESIDENT: What about Winter's, No. 8? MR DODD: That is seven pages and two pages of drafts, which makes it altogether nine pages. The newspaper article about General Marshall's report, I do not know. So far, only one typewritten page. Document 13 is a ten-page document. General Seidler's letter is one page, and Document 15 is only one page. It is also a letter. THE PRESIDENT: Thank you. Now, Dr. Laternser. DR. LATERNSER (for the General Staff and High Command): There still remain certain documents which are disputed. First of all, Document 5. The table submitted with No. 5, on Page 29, only refers to historical facts which are graphically represented in that table in order to show their extent and the effect they had within the accused military leadership. The affidavit of General Busse, which is attached, is not intended to prove facts which are historically known in any case, but merely to explain the table. It is not, therefore, a private opinion on the part of General Busse. The admissibility of that table cannot therefore be objected to. I will take Documents 8 and 9 together because the objections raised against them are similar. The lists contained therein are meant to facilitate the Tribunal's judgement on the circle of persons falling under the Indictment. Thus we are not concerned with written statements but with lists and I am only too willing, if the technical department is too busy, to furnish the necessary number of copies of these lists myself. The basis for these lists is Exhibit USA 778 which was submitted by the prosecution on 3rd February, 1946. This document, Exhibit USA 778, which was prepared by the prosecution, contains the names of all the persons who are said to come under the Indictment and also shows the periods during which they, held office. This exhibit does not state the source from which these details originate, therefore they are merely assertions on the part of the prosecution. Using this document as a basis, however, I asked General Winter to draw up the submitted military lists, Documents 8 and 9, to the best of his knowledge and conscience. In contrast to the lists submitted by the prosecution, the Tribunal will be able to judge the source of these lists particularly well for General Winter appeared personally before the Tribunal as a witness in Jodl's case. Document 8 contains the names of persons dead and further those of individually accused persons and those whose posts were only temporary, not permanent. According to the lists that makes fifty-six persons and for all practical purposes of judgement that number need not be taken into account. In this list are shown also the [Page 187] many cases where commanders were relieved of their positions owing to grave differences of opinion. Document 9 gives the names of thirty-one people who occupied positions for less than six months and to whom the prosecution has referred. This document is relevant as regards the alleged conspiracy. If, therefore, the Tribunal desires to have a good factual basis for judging the composition of the circle of persons indicted, then these lists should be accepted. Moreover the lists already accepted by the prosecution can only refer to the same or similar sources as those of the lists which I am submitting, and the lists of the defence quote the sources and can be checked. If I had used the same method as the prosecution, I would only have had to submit the lists without the addition of an affidavit. Therefore I beg that these documents be admitted. Document 11 has already been accepted in the same form by the Tribunal as Exhibit Jodl 56, a fact which, incidentally, I mentioned at once - and to the prosecution - and attempts to make that clear to me were really not necessary. THE PRESIDENT: No. 11 we understood was a newspaper report with reference to General Marshall's report. DR. LATERNSER: When that objection was brought up I immediately pointed out that the same document to which I was going to refer had already been submitted during the proceedings against General Jodl. That is the Marshall report. Therefore, I withdraw this document of mine. THE PRESIDENT: You are withdrawing it? I see. DR. LATERNSER: Yes, as the document has already been submitted. I merely wanted to include it in my book for the sake of having it complete. Then I would just like to remark, Mr. President, that attempts on the part of the prosecution to make this clear to me are not necessary because I usually understand that kind of argument fairly easily. Document 13 is also based on USA 778 as far as the circle of indicted persons is concerned. This list, also compiled by General Winter, is meant to complete the picture proving the correct attitude on the part of the generals toward the Commissar Order. As that list, based on the list submitted by the prosecution and the affidavit attached to it, gives the exact sources, the document can readily be checked as to its worth. The objections on the part of the prosecution may detract from its value as evidence, but the documentary character of the document cannot be destroyed; therefore this list, too, should be admitted. THE PRESIDENT: Has not Document 13, that is to say the subject of the attitude of the generals to the Commissar Order, already been dealt with before the Commission? DR. LATERNSER: Yes, Mr. President, but examination of witnesses and submission of affidavits cannot give the same satisfactory picture which I am attempting to give by means of this document. This document contains the names of the generals who belonged to that so-called group; in a special column I have marked whether the order was received and in another column whether the order was carried out, and these facts which General Winter mentions here are explained by him in his affidavit which is attached to the list itself. He goes on to quote the sources from which he had gained his knowledge, so that I can examine the sources and so the evidential value. THE PRESIDENT: Dr. Laternser, you have called a certain number of witnesses before the Commission, have you not? DR. LATERNSER: Yes. I had eight witnesses. THE PRESIDENT: I suppose all of them, or almost all of them, dealt with this subject. You put in a certain number of affidavits and those affidavits have dealt with this subject, have they not? [Page 188] DR. LATERNSER: Yes. THE PRESIDENT: How many affidavits have you put in before the Commission? DR. LATERNSER: I cannot, Mr. President, give you the exact number at the moment. Affidavits have been submitted by me on only two matters. MR. DODD: There were seventy-two of them, Mr. President. He put in seventy-two of those affidavits. THE PRESIDENT: Well, is this not really an attempt to extend and make more exhaustive the proof which you are submitting? DR. LATERNSER: Mr. President, this Commissar Order no doubt is a criminal order, and I was merely trying to make it clear to the Tribunal by this list in what an exemplary way the generals had behaved in the matter; I had summarised the outcome of that part of the evidence in this list. General Winter has compiled the list, so the High Tribunal can decide whether it is valuable or not. I am merely trying to say that the objections raised by the prosecution can affect the evidential value of this document but not the document itself. I ask that it be admitted. THE PRESIDENT: But if you put in seventy-two or eighty-two affidavits before the Commission, why should you not have put in this document before the Commission? DR. LATERNSER: Well, but here we are not concerned with affidavits. Up to now only affidavits have been submitted whereas here in Document 13, the most important thing is the list and the affidavits which are attached are merely an appendix to that list. They are intended to give an explanation of the list. The main feature of this document, therefore, is the list and not just the explanatory affidavit, so that it would not have been admissible before the Commission. THE PRESIDENT: Yes, Dr. Laternser, but it does not make it inadmissible before the Commission that it is an affidavit exhibiting a list. It could have been put in before the Commission, and if it has been put in before the Commission it would have been brought to our notice as is everything that goes before the Commission. Also, it is pointed out to me of all these documents, they could all have been put in before the Commission.
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