The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
November 20 to December 1, 1945

Ninth Day: Friday, 30th November, 1945
(Part 7 of 9)

[Page 292]

Q. Do you know to whom or to what organisations such orders were usually addressed?

A. Orders of this kind, involving the question of principle, went to the O.K.W., because things relating to prisoners of war were the concern of the O.K.W., and in particular of Reinecke, which also explains the discussions with Reinecke.

Q. So usually the members or some of the members of the General Staff would have known of such orders, would they not?

A. Certainly, in accordance with its essential contents, many members of the Wehrmacht knew of this order, and the reaction of the Wehrmacht against it was tremendous. Apart from the service view, which is what I have reported here, and elsewhere, these orders were discussed a great deal, in casino clubs, because all these matters became manifest in the most undesirable form and had a most undesirable effect on the troops. As a matter of fact, officers and high- ranking officers at the front, either did not transmit these orders or sought to evade them in some way, and this was discussed a great deal. I have named some of these officers; some are listed in the notes, diary, etc. It was not an everyday occurrence, and it was then the topic of the day.

Q. And were the orders known to the leaders of the S.A. and S.D.?

A. They must have been known to them, for the ordinary soldiers who watched all these proceedings knew and spoke about them, and partly they were also known to the civilian populace; civilians and men from the front, as well as wounded soldiers, told far more details about these matters than I could tell here.

THE PRESIDENT: General Nikitchenko wants to ask a question.

BY THE TRIBUNAL (Gen. Nikitchenko):

Q. You have told us that you received instructions about the murder of prisoners of war and brutal treatment. You received these orders from Reinecke?

A. Well, I must correct something that I said. We didn't get the order in the Ausland-Abwehr because it had nothing to do with us, but I knew about it, and

[Page 293]

went into this conference as a representative of the Ausland- Abwehr. But we ourselves had nothing to do with the treatment of prisoners of war, and certainly not in this negative sense.

Q. Apart from these meetings, the meetings of the High Command, were such instructions ever given? Were there any meetings of the High Command headquarters about killings and ill-treatment of prisoners of war?

A. There certainly had been a number of discussions about this subject, but I was present at only one of them, which I described, so I cannot say anything more about it.

Q. At headquarters?

A. In the O.K.W. - at headquarters.

Q. At the headquarters of the German Army?

A. Certainly, in the O.K.W., where Amt Abwehr had been requested to send a delegate in my person, particularly because of its protests. As a matter of fact our Amt had nothing to do with prisoners of war in this sense. But we were, because of technical and natural reasons, interested in proper treatment of the prisoners.

Q. But the meetings were not about treating prisoners, about killing and murdering them? At these meetings, Ribbentrop was also present?

A. No; these discussions, I mean the one conference about which I have given testimony, took place after the accomplished fact. Everything had already happened; executions had already taken place, and the results had already been shown. Protests of all kinds had already been made, they had come from the front and from other places. For example, from our own office, Abwehr; this conference was intended to show the necessity for the orders which had already been given, and to justify measures already taken. These discussions took place after the beginning of operations, after the orders which had been given had already been carried out. All that I have touched upon or stated had already happened and its effect had already been felt in the worst sense. Facts that had already happened were being discussed with the idea of making one more attempt, a last attempt on our part, to get a grip of the situation.

Q. All these reports brought about results?

A. That is what I talked about, and that was the subject of the discussions with Reinecke. I did not take part in the other discussions and therefore have nothing to say.

Q. At which other meetings had orders been given about killings and burning of towns and villages?

A. I must make something clear, relative to what the General has in mind. Am I being asked about the conference in the Fuehrer's train prior to the fall of Warsaw? According to the entries in Canaris' diary, it took place on the 12th September, 1939. The meaning of this order which Ribbentrop gave, and which Keitel gave them in a brief discussion, was again referred to by Ribbentrop, and was in reference to the organisations of National Ukrainians with which Amt Abwehr co-operated along military lines, that is, in the matter of military operations to bring about an uprising in Poland, with the Ukrainians--an uprising which aimed to exterminate the Poles and the Jews, that is to say, above all such elements as were always being discussed in these conferences. When Poles are mentioned, the intelligentsia especially is meant, and any persons who would be prototypes of the national will of resistance. This was the order given Canaris in the connection I have already described and as it has already been noted in the memorandum. The idea was not to kill Ukrainians but, on the contrary, for us to carry out this task of a purely political and terroristic nature together with the Ukrainians. The co-operation and what actually occurred in the connection between Ausland-Abwehr and these people who were only about five hundred or a thousand - all this can be clearly seen from the diary. This was simply a preparation for military sabotage.

[Page 294]

Q. These instructions were received from Ribbentrop and Keitel?

A. They came from Ribbentrop. Such orders which concerned the political contents couldn't possibly come from Amt- Ausland-Abwehr because any -

Q. I am not asking you whether they could or could not. I am asking where they came from.

A. They came from Ribbentrop, as is seen from the memorandum that I made for Canaris.

THE PRESIDENT: yes, Doctor

DR. DIX (Counsel for defendant Schacht): I have three short questions, May I put them?

THE PRESIDENT: It is now past four, and we have to hear the requests of the defendant Hess, and the Court has to be cleared for them. So I think you had better postpone then, until tomorrow.

(A short recess was taken, and all the defendants except Hess were removed from the courtroom.)

THE PRESIDENT: I call upon counsel for the defendant Hess.

DR. VON R0HRSCHEIDT: (counsel for the defendant Hess): May it please the Tribunal, I am speaking here as counsel for the defendant Rudolf Hess.

In the proceedings which have already been opened against Hess, the Court should solely decide on the question whether the defendant is fit or unfit to be heard, and further, whether he might be considered entirely irresponsible.

The Court itself has expressed this judicial conception by asking the experts to state their opinion with regard to his fitness to plead; firstly, is the defendant in a state in which he can plead on the charge; secondly, as to his mental stability; the question here was formulated as to whether the defendant is mentally sound or not

In respect to question 1, is the defendant in a state fit to plead, the Tribunal on the basis of its determination of the issue "is the defendant fit to plead his case?" asked the experts specifically whether the defendant is sufficiently in possession of his mental faculties to understand the proceedings, and whether he is qualified for an adequate defence - that is, to repudiate a witness to whom he objects and to understand details given in evidence.

During several sessions the experts to whom this task was entrusted, acting as commissions, have examined Hess on several days and have given their expert opinion concerning these questions to the Tribunal, and I, as the defendant's counsel, after having studied this experts' opinions (which I couldn't do very thoroughly because time was so short) and in view of the experience and knowledge I gained in almost daily discussions with the defendant, consider it my duty to state that, in my opinion, the defendant Hess is not capable of pleading.

As his defence counsel I am therefore in duty bound to file the following motions on behalf of the defendant Hess:

Firstly, I ask for a Court decision that the proceedings against Hess be temporarily suspended. Secondly, in case his inability to plead should be admitted by the Tribunal, I should request the Tribunal not to proceed against the defendant in absentia. Thirdly, in case the Tribunal should consider Hess fit to plead, I should ask for a consensus of opinion of further competent psychiatrists.

Here, however, before I come to the reasons for my applications, I should like to say, on behalf of the defendant, that Hess himself thinks he is fit to plead and would like to tell the Court so.

I would now like to give the reasons for my application:

As regards (1): If my defendant - my client, rather - is not fit to plead, I should like the proceedings against Hess to be temporarily suspended.

In connection therewith and to explain the reasons for my application it is permissible for me, I believe, to refer to the opinions already submitted to the Tribunal.

[Page 295]

Pursuant to the questions placed before them by the Tribunal, the experts come to the following conclusion which I infer from the consensus of opinions as - I must term it - having been rendered by a mixed delegation, which as far as I could determine consisted of English, Soviet, and American experts, the opinion bearing the date of 14th November, 1945, and I should like to cite textually from it. In this opinion it is stated, "that the capability of the defendant Hess is impaired"; that is to say, the capacity to defend himself and to face a witness and to understand the details of evidence. I have cited this formulation of the opinion because it is closest to the questions put to the experts by the Tribunal.

Going further, another opinion says that even if Hess' amnesia does not prevent the defendant from understanding what happens around him-and to follow the proceedings in Court -

THE PRESIDENT (interposing): Would you speak a little more slowly? The interpreters are not able to interpret so fast.

Would you also refer us especially to those parts of the medical reports to which you wish to draw our attention?

Do you understand what I said?


I should like to mention that I cannot refer to quotations according to the pages of the original text, or English text, as I only have the German translation, so I can only state that the first quotation -

The first quotation -

THE PRESIDENT (interposing): You can read the words in German, and they will be translated into English.

Which report are you referring to?

DR. VON ROHRSCHEIDT: For the quotation that I gave I was referring to the expert report, as far as I can see from my German translation which was given on the 14th November, 1945, which was drawn up by the delegation of English, Soviet and American experts and which accompanied the report of the 17th of November, 1945. What I quoted was the following - may I repeat it?

The passage runs: "The capability of the defendant Hess in respect to his being able to defend himself, to face a witness, and to understand details of the evidence given, is impaired". I should like the Tribunal to tell me -

THE PRESIDENT: Can you say which of the doctors you are quoting?

DR. VON ROHRSCHEIDT: It is the report which, in my copy, is dated the 14th of November, 1945, and, as I said, was presumably signed by Soviet, American and English doctors.

Unfortunately, when returning the material after completion of translation into German yesterday evening, I did not succeed in my attempt to obtain the original text, because of lack of time.

THE PRESIDENT: Have the English prosecutors got a copy, and can you tell us which it is?

SIR DAVID MAXWELL FYFE: I think I am in the same difficulties as your Lordship. On the order that I have, I have copies of four medical reports. Your Lordship will see at the end of the document headed "Order", it says, "Copies of four medical reports are attached."

The first one of these is signed by three English doctors on the 19th of November.

Then there is a report signed by three Soviet doctors, dated the 17th of November.

Another one is signed by three Soviet doctors and the French doctor dated the 16th of November.

These are the ones which I have with the Court's order. The fourth, dated 20th November, is signed by Drs. Delay, Lewis and Cameron, and Colonel Paul Schroder.

[Page 296]


I don't know what this report is that you are referring to.

SIR DAVID MAXWELL FYFE: Dr. von Rohrscheidt seems to have an unsigned report of the 14th.

THE PRESIDENT: Dr. von Rohrscheidt, have you got the four reports which are really before us? I will read them out to you:

The first one I have got in my hand is the 19th of November, 1945, by Lord Moran, Dr. Reece, and Dr. Riddoch. Have you got that? That is the English report.

DR. VON ROHRSCHEIDT: I only have this report in the German translation and not in the original.

THE PRESIDENT: But if you have got it in the German translation, that is quite good enough.

Then the next one is dated the 20th of November, 1945, by Dr. Delay, Dr. Nolan Lewis, Dr. Cameron and Colonel Paul Schroeder.

Have you got that?

DR. VON ROHRSCHEIDT: Yes, I have that one.

THE PRESIDENT: That is two.

Then, the next one is dated the 16th of November, and is signed by three Soviet doctors and one French doctor, Dr. Jean Delay, dated the 16th of November. Have you got that?

Then there is another report of the 17th November, signed by the three Soviet doctors alone, without the French doctor.

Now, will you refer to the passages in those reports upon which you rely?

There is another report by the two English doctors which is practically the same. That is the one I have already referred to, that does not contain the name of Lord Moran on it, dated the 19th of November.

DR. VON ROHRSCHEIDT: If the Tribunal please, I think I can shorten this speech to the Tribunal. My view is that all the experts' opinions can be summed up as stating that the capability of the accused Hess to defend himself, to face a witness, and to understand details of the evidence given - I did not keep exactly to these words in my statement -

If we assume that all the medical opinions agree as to the fact that defendant Hess' capacity to defend himself is impaired, I, as his defence counsel, would draw the conclusion that defendant Hess' capacity to plead must be considered as being nil. The reduced capacity of the defendant to defend himself, which is recognised as amnesia by all experts, who describe it as a mental condition of a mixed character rather than a mental abnormality, must be accepted as meaning that he is unfit to plead.

I am of the opinion that the conclusion drawn by the medical experts implies, that in whatever way the question be formulated its answer will be, "Hess cannot be suitably defended on account of his mental defect." The medical report is based on the assumption "that the defendant is not insane". That is not the important point at the moment because according to the medical report it is, in my opinion, convincingly stated, that because of reduced mental ability the defendant is not in a condition to understand the proceedings.

Speaking for myself - and I think that my opinion is in agreement with the medical opinion - I believe that the defendant is quite incapable of making himself understood in the manner that is to be expected from a mentally normal person.

In view of my own experience I consider that the defendant is incapable of grasping the charges which the Tribunal will bring against him, to the extent that is required for his defence, because his memory is very unreliable. Because of his loss of memory he remembers neither events of the past nor the persons who were associated with him in the past. I am, therefore, of the opinion that defendant's own claim that he is fit to plead is irrelevant. The reduction of the defendant's

[Page 297]

capacity will not improve within a given time, according to the medical report and therefore I think that the proceedings against him should be suspended.

It is not certain that the treatment of narcotic analysis suggested by the medical experts would bring about the desired effect, nor that a determined period of time can be given, during which this treatment would result in the complete recovery of the defendant's health. The reproach has been raised in the medical report against the defendant of deliberately refusing to undergo such medical treatment. The defendant tells me that, on the contrary, he would readily undergo treatment, but that he refuses the suggested cure because he thinks first of all, that he is already fit to plead and therefore considers this cure as unnecessary, and secondly, because he disapproves on principle of such violent methods, and finally because he is of the opinion that such an operation, at precisely this time, might render him unfit to plead or to take part in the proceedings, which is the very thing he wishes to avoid.

If, however, defendant is incapable of pleading and of defending himself, as stated in the medical report, and if the aforesaid condition is likely to last for a long time, this would, in my opinion, provide the basis for a temporary suspension of the proceedings against him.

My second motion is the following: In case this Tribunal should accept my former motion and declare the defendant Hess unfit to plead, then, according to Article 12 of the Charter, it would be possible to proceed against the defendant in absentia. Article 12 provides that the Tribunal has the right to proceed against a defendant in absentia if he cannot be found, or if this procedure is, for other reasons, in the interests of justice.

Is it then in the interests of justice to proceed against the defendant in absentia? In my opinion it is incompatible with objective justice if actual proofs are available, as in the present case, that the defendant's capacity is reduced owing to illness, i.e., amnesia which has been recognised in all medical reports, and that he is, therefore, unable to personally safeguard his rights and to attend Court- sessions.

In a trial where charges are being brought against the defendant, so grave that they might entail the death penalty, it seems incompatible with objective justice that the defendant should be deprived of the rights granted to him under Article 16 of the Charter, although medical opinion confirms the existence of reasons of health.

Article 16 of the Charter makes, however, provisions for the defendant's defence, for the possibility of furnishing evidence to this end, for cross-examining every witness called before the Court, all of which is of so great an importance for the defence that failure to make use of any of these privileges would, in my opinion, constitute a grave injustice to the defendant. Therefore a trial in absentia cannot be accepted as a fair trial.

If, as I have stated, the defendant's capacity to defend himself is reduced owing to the reasons already mentioned, it is equally established that the defendant is not in a position to give his counsel the necessary information and to enable his counsel to defend him in his absence.

Since the Charter has precisely laid down the rights of the defendants, it seems unjust to me as defence counsel that the defendant should be deprived of these rights in a case where, by reason of illness, he is handicapped in safeguarding his interest in his defence and in Court proceedings.

The regulation laid down in Article 12 of the Charter, on proceedings in absentia against a defendant, must surely be looked upon as an exceptional measure, which in my opinion should only be applied against a defendant if he endeavours to evade the proceedings in any way except through force of circumstances. But defendant Hess has told me, and he will probably emphasise this before the Tribunal, that he wishes to attend the proceedings, and he will certainly feel that it is particularly unfair if the proceedings were carried on in absentia, and regardless of his own readiness to plead.

[Page 298]

I therefore request the Tribunal, if it should declare the defendant not competent to plead, that it will not proceed in his absence.

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