Ideas which were suggested to Himmler, of carrying out experiments with the plant, caladium seguinum, in concentration camps as soon as possible, and of starting the building of hot-houses in which to cultivate this plant, remained in the sphere of wishful thinking, and they never got to the point of execution. Only the firm of Madaus and Koch resumed its animal experiments. These experiments on animals, however, brought no results and ended in 1944 with a report which was submitted to this High Court as document No. 28, exhibit No. 29; this report gives clear proof that they did not make any progress until the end of the war, but were still in the phase of fruitless experiments on animals. In this connection we might leave undecide, whether or not the aversion of the responsible men of Madaus and Koch to helping Himmler was a factor in the failure of the animal experiments. The witness, Dr. Koch, at any rate, answered hare in the witness stand, - when questioned by the prosecutor, if he had made success of the animal experiments with the plant, caladium seguinum, impossible, only because of his aversion to co-operate in Himmler's plan - that he made the animal experiments reluctantly and inaccurately, since he did not like to work for Himmler, and that, furthermore, there is no possibility nor way of making use of the plant, caladium seguinum, for sterilization or castration. An inaccurate or knowingly false exploitation of the animal experiments with caladium seguinum would, therefore, have been only a very praiseworthy, in fact unnecessary sabotage of Himmler's orders; it would not alter the fact that the problem of using the plant, caladium seguinum, for sterilization or castration still remains unsolved. This concurs with the unanimous opinion of all medical and pharmacological authorities, as can be found in the documents Pokorny No. 19, 20, and 30, exhibits No. 27, 28, and 30, and in the document of the prosecution No3547, exhibit No. 546.
If we assume now, at first, that the defendant, Dr. Adolf Pokorny, was convinced from the beginning that the plant, caladium seguinum, was unfit for sterilization and castration, and if we assume that he wrote the letter to load Himmler astray and to prevent him from committing a crime on humanity, then there was doubtless no crime committed according to German Criminal law, because the will to see any objective characteristics of criminal acts realized is missing. He, who instigates an attempt which cannot succeed knowing that the experiment performed on his instigation is not a principal and must therefore remain exempt from punishment.
There is only one reproach one could make in this case against the defendant Dr. Adolf Pokorny. This reproach could be that he, even with the best intention, had mentioned the idea of a mass extermination, and that he should have considered that this idea would strike root in Himmler' mind, and that he (Pokorny) would become the author of an idea and a plant which would be executed by Himmler, even with quite different means and under quite different circumstances. In this case a sentence pursuant to article II 2 d of Control Council Law No. 10 would be possible, which states that a punishment may be imposed if someone is connected with the planning or the execution of crimes against humanity, without any regard to the intention of the person concerned. The only requirement is that the act was committed intentionally, and according to German criminal law the "dolus eventualis" would be sufficient in this case.
However, it has been shown by the evidence in particular and by this trial in general that the defendant Dr. Adolf Pokorny had not to discover the idea of a mass extermination, but that this idea existed a long time before he conceived it, and that Himmler's plan born from it was already executed to its full extent since 1941. In this respect I have already pointed out above the mass extermination in the gas chambers of Auschwitz, Maidanek and Treblinka and have referred to Document NO-204, Exhibit No. 162 which shows the intended sterilization of 3 to 4 thousand persons per day. It was not the defendant Dr. Adolf Pokorny who conceived the idea of a mass extermination or who established a plan for it, but this idea was already existent, and the plan, too, was existent consisting in the use of Cyclon B, in the surgical sterilization and the sterilization by X-rays, all of them means which were sufficient to execute the idea and the plan, even without the author of the letter, the defendant Dr. Adolf Pokorny. The defendant Dr. Adolf Pokorny therefore can only have shown a means for the execution of an established plan, and according to his own statement he only intended to do that, because he has stated that ho had heard about this plan from an SD man, even if only in a vague and rough outline. The defendant Dr. Adolf Pokorny is therefore not a principal because in the actual execution of the extermination plan he has neither realized himself a characteristic of the actual fact by any action of his own, nor had he intended the success of the action as an action of his own.
According to German criminal law he is also not an instigator because the plan for committing the extermination had been established long ago. It was just this plan which ho had heard about that inspired him for his action.
Himmler who had conceived the plan of extermination was already, and without his (Pokorny's) assistance determined to execute it. The instigation, however, would presuppose that the will for the crime is stimulated in the instigated person. This, however, was already abstractly impossible in view of Himmler's determination to execute his plan of extermination in any case, and an instigation to something which already is existent in the determination if the principal is impossible.
There only remains that the defendant Dr. Adolf Pokorny might have been an abettor. Such an abetment might have consisted in the fact that the defendant Dr. Adolf Pokorny has pointed to the plant Caladium seguinum as an efficient drug for mass sterilization for the purpose of extermination. Such a sterilization, however, has not been performed, neither in a single case nor in mass, and therefore much the loss has such an extermination plan been executed because the plant Caladium seguinum is completely inefficient as a drug for sterilization or castration purposes. Even if the defendant Dr. Adolf Pokorny had believed in the efficiency of the plant Caladium seguinum or if he had believed that in a near future it could have been made use of, this might have constituted at the best an abetment to an experiment with am inadequate moans because, as we know today, the plant Caladium seguinum is objectively inefficient in the actual meaning for sterilization and castration purposes. Such an abetment to an experiment with an inadequate means would to be sure, be punishable according to German criminal law, but it would involve a doable mitigation of punishment, i.e. with regard to the experiment as well as with regard to the abetment.
In the present case, however, the evidence has shown that there is no question of an abetment as to plant Caladium seguinum has not been tested on any human being but only on animals. The execution of the crime which concerns us in the present case has therefore not been started, much the less the national extermination of millions of humans.
I have already explained above that the witness Dr. Koch stated that the reluctant and inexact performance of animal experiments as asserted by him could not alter the fact that chore was no chance to perform a sterilization or a castration with the plant Caladium seguinum, and that his explanations to this respect should not be interpreted in such a way as if without this kind of performance there would have existed a chance to sterilize or to castrate humans with Caladium seguinum. However, if contrary to this result of the evidence one would become reconciled to the idea that all the same this kind of performance by the responsible men of Koch and Madaus would be in any way connected with the impossibility of performing the sterilization with the plant Caladium seguinum, this too would not change the result, because a perpetrator, who is lucky enough that somebody else gets him off his aim when firing his pistol, is not a murderer anymore, since the success of his deed has been prevented even though this might have happened against his will and without his consent. However, I present this idea exclusively as a hypothesis since it cannot be supported by the evidence; the plant caledium seguinum in itself proves the impossibility of maintaining the idea of an "accomplishment".
The result of the above arguments is therefore that in this case everything should be considered as preparatory actions only. A preparatory action, however, is not punishable under German law. But what the defendant Pokorny did is therefore oven less punishable since he, from the legal point of view, rendered only assistance to such a preparatory action.
However, in order to take into consideration all actions and ideas which could be possibly considered I will approach the question whether or not a psychological assistance prevails, since the letter of the defendant Dr. Adolf Pokorny in one way or another resulted in, or could have resulted in, favouring the entire plant of extermination, above being considered as a mere recommendation of the medium (drug) to be applied. Such an effect could be seen in the fact that the approval of a plan might not incite a perpetrator, decided to commit the crime anyway, but might possibly encourage him in his decision. But here, too, can I only repeat what I have stated above already, namely the fact, that it is impossible to presume that Himmler needed an encouragement in his decision by the letter of the defendant Dr. Adolf Pokorny, because of his (Himmler's) criminal decisiveness to carry out the extermination which was proven already by the start of extermination of Jews The phrases which the defendant Dr. Adolf Pokorny uses in bis letter also were not needed by Himmler as an encouragement of his decision. They could not influence him. They only caused a reaction that the writer of the letter was a man who wanted to emphasize his devotion with all these phrases, more could Himmler not see from it. That excludes, however, a psychological assistance of the defendant Dr. Adolf Pokorny and here, too, does he remain free of guilt.
So far I have argued the interpretation of "committed crime", "instigation", "complicity", "attempt" and "preparation" in accordance with German law and have come to the result that a punishable act of the defendant Dr. Adolf Pokorny in the sense of the penal law does not exist; now I would like to examine the question whether the Control Council Law No. 10, considering the facts of this case, contains in itself a directive to the effect that a punishment of the defendant Dr. Adolf Pokorny is called for, based upon the fact that he had written a letter and mailed it to Himmler, regardless of the interpretation of "committed crime", "instigation", "complicity", "attempt" and "preparation".
First of all, there is no doubt that mass sterilization represents a crime against humanity, in spite of the fact that the ruler at that time, in this case Himmler, approved of such a crime against humanity, and had the power to prevent punishment of the perpetrator. That follows from Article III c which expressly states that the home Law (Heimatrecht) in a case like that is irrelevant. This provision, however, means in my opinion, only a reference back to general ethical standards which would consider the carrying out of such a plan criminal; those ethical standards cannot be influenced by accidentally opposing power conditions. This however, does not exclude, as I tried to prove so far, the fact that all general conditions of the German Penal Law, as far as the Control Council Law No. 10 did not change them, must be considered in the evaluation of such a crime.
First of all article II 1c provides that all crimes hereby regulated have to be completed since article II 1c deals with inhumane acts, murders, rapes etc. which had been actually committed.
From that one may draw the conclusion that a pure planning of such a crime against humanity is not punishable under article LL 1c IF the crime itself was not completed.
Also article II 2d of the Control Council Law No. 10 docs not say anything different. If, following this article II 2d, the planning of a crime is already a punishable crime, this does not mean the exclusively preparatory action, but the planning means here an actual participation in the crime and calls for a direct action and actual beginning of activities. Would an act have been committed the participant would even then be punishable if he would not have participated in the punishable act himself. In the case under consideration, however, an actual realization (of the plan) did not take place, because the plant Caladium Seguinum has been tested exclusively on animals but not on human beings, and only the experiment with human beings would represent an actual realization (of the plan). It appears unnecessary to me to repeat gain in detail what I have stated above, namely that the plan of extermination existed long before Pokorny's time, that Himmler was decided to carry out a mass extermination in any possible way, even by sterilization, and that the defendant Dr. Pokorny only suggested a useless medium. Nothing happened because of this useless medium and nothing could happen; all that did happen, because of the suggestion of the defendant Dr. Adolf Pokorny, remained within the limits of preparatory actions to a crime against humanity. Since, however, such a preparatory action is not punishable under Control Council Law No. 10, a participation in such an action cannot be punishable either.
I have already examined the fact as to how much the defendant Dr. Adolf Pokorny influenced the entire plan of mass extermination.
It has now to be determined how far he is possibly responsible under the penal provisions of Control Council Law No. 10. Under a-d article II 2 of the Control Council Law No. 10 four ways of participating in a crime are listed, which can be applied to the case of the defendant Dr. Adolf Pokorny.
According to article II 2a a person can be punished who has collaborated actively in committing a crime against humanity. The defendant Dr. Adolf Pokorny cannot be considered as having participated actively since he has not committed any act directed towards the execution of the crime and since he did not intend to commit the act as his own, but only intended to give a hint to Himmler.
According to Paragraph II 2 b ho who aids the perpetration of such a crime or has ordered or supported it is liable to be punished. Defendant Dr. Adolf Pokorny had no authority to give orders, neither could he lend his support since conceivably this would only have been possible after the deed had been committed.
If in the following I now define my attitude regarding the word "Beihelfer" I am aware that this word is derived from the translation of the English "accessory". The German translation "Beihelfer" refers to a certain extent to the institution of aid according to German law, consequently, essentially it would comprise the idea of the accessory's participation. English law however makes no substantial difference between abettor and aider. This is also not surprising, for the question of German aid has just shown us that the instigation includes such aid and on the other hand there is always a weaker form of instigation in psychological aid. The gradual difference in the criminal mind when abetting and when aiding can be brought about by punishment of the individual case, but does not necessitate that both conceptions must be separated.
Under the word "Beihelfer" the instigation as well as a psychological aid can therefore be subsumed. Now I have already stated above that there is no question of defendant Dr. Adolf Pokorny being an abettor, nor could he have given psychological aid. I have thereby pointed out that Himmler in his plan of mass extermination did not first need to be instigated and also did not receive any psychological assistance, as the wording of the letter from defendant Dr. Adolf Pokorny shows. Insofar a participation of defendant Dr. Adolf Pokorny, according to the conceptions of the instigation and the psychological aid does not exist, since there can be no thought of an abetting in these methods without the success not coming off. Himmler however would have still continued his plan of mass extermination without defendant Dr. Adolf Pokorny's letter and his letter has insofar no influence on the whole plan. The letter can easily be omitted without the situation being changed in the least. Therefore, the actual form of aid is eliminated since defendant Adolf Pokorny only aided the preparatory act. In this regard too I have already made sufficient statements above. I have pointed out that beginning to carry out a criminal act on humanity can only be seen in the use of the Caladium seguinum plant on a human being and that the mere animal experiments can be regarded as an act of carrying them out. According to Paragraph II 2 c, he who has participated by consenting to a crime on humanity is furthermore liable to punishment. The English text says: "took a consenting part therein". The English wording shows that more than mere shouting or writing is needed; therefore, in my opinion the mere consent is not sufficient, especially as otherwise all journalists would have been guilty of a crime on humanity, but rather is it necessary that by consenting some condition has been laid down for the success.
However, I have already stated above that it is true that the whole plan may have been influenced by defendant Dr. Adolf Pokorny's letter, but as regards this I have stated further that Dr. Adolf Pokorny's position, having had no connections with authoritative men and not having belonged to an organization, was much too subordinate and unimportant to enable him to influence or direct Himmler in any way by his letter. However, Dr. Adolf Pokorny's consent, as it is objectively manifested in his letter, is thereby not casual for a crime committed on humanity and with that the presumption of the facts, as laid down in Paragraph II 2 c, is not fulfilled.
Finally, I still have to deal with the question of applying Paragraph II 2d, according to which he who has been associated with the planning or execution of a crime against humanity is liable to punishment. I have already stated above, when dealing with the question as to whether a punishment according to Paragraph II 1c is concerned, that the definition of the Control Council Law No. 10, paragraph II, 2 d, points out that since there it is only a question of acts committed, a mere preparatory act is not sufficient. In itself it would be contradictory if the definition of crimes on humanity would emanate from accomplished deeds, but in the interpretation reference would be made to preparatory acts not actually committed crimes on humanity, so that when interpreting the law a broader view on penalty would be taken than the law itself demands.
Systems of criminal law, too, so far as I can ascertain at times expressly contain a special indication where the legislator wishes to provide for punishment of a preparatory action, too. Thus a preparatory action in German criminal law, although it is otherwise not punishable, is expressly made subject to punishment by the former regulations regarding high treason. Exactly the same thing, however, is true in my judgment of Control Council Law No. 10. From the fact that punishability of a preparatory action is not expressed, it follows conclusively that it is not intended to be punishable.
Such punishment, of course, can only be justified when a contain causality exists, which is manifested by the fact that the idea conveyed, the plan, the agreement, or the consent contributed to the success of some cause.
Anyone whose plan or idea had no result, however, remains unpunished like any journalist or letter writer who, on both sides of this war, may have expressed ideas about the treatment of the opponent, ideas which, looked at objectively, in themselves were objectionable according to ethical standards. To what extent beliefs are to be punished here is another question. In the case of German citizens they would have to be judged according to the de-Nazification law. Control Council Law No. 10, however, recognizes no crimes of belief, but only crimes of action. The motive of the defendant, Dr. Adolf Pokorny, then, need not be considered hero at all. It need only be considered that the total plan for extermination was already will established in Himmler's mind, was not influenced by the letter of the defendant, Dr. Adolf Pokorny.
and his suggestion which the defendant, Dr. Adolf Pokorny, gave Himmler in his letter did not get beyond the stage of a preparatory action, which in itself is not punishable, so that the aiding and abetting of this preparatory action by the defendant, Dr. Adolf Pokorny, must remain unpunishable even in accordance with the special factual provisions of Control Council Law No. 10.
If I take a position in regard to the question of the conspiracy, I do so -- in view of the statements of the counsel for the defense whom I succeeded and the fact of the conclusion reached in Military Tribunals I, II, and III in regard to the question of the "conspiracy" -merely with a general reference to the fact that in the case of the defendant, Dr. Adolf Pokorny, in my opinion, there is no foundation for implicating him in a conspiracy. The mere fact that in my legal opinion the defendant, Dr. Adolf Pokorny, has not made himself culpable under Control Council Law No. 10 excludes the possibility that he could have taken part in a conspiracy, as claimed here by the prosecution. Added to that are the general circumstances, from which it follows that the defendant, Dr. Adolf Pokorny, neither belonged to a Party organization nor to a government agency, but was an independent country medical practitioner in Komotau at the time when he wrote the letter. The fact, too, that he knew neither Himmler nor anyone else personally, and especially none of the defendants here, makes it impossible for me to believe that he was implicated in a conspiratory circle.
The defendant, Dr. Adolf Pokorny, wrote his letter by himself. He had a very definite goal in view and nowhere expressed the thought that he wished to be included, in anyway, through his letter, in the Himmler circle.
But Himmler, on the other side, was much too all-powerful and much too presumptuous to have been tempted to draw such an insignificant man as the defendant, Dr. Adolf Pokorny, was in comparison to him, into his circle and to let him participate in anything. Himmler did not even deem the defendant, Dr. Adolf Pokorny, worthy of a reply.
Pohl, in his letter to the deputy Gauleiter of Niederdonau, Document No. 042, Exhibit No. 155, writes 10 months after the date of the letter of the defendant, Dr. Adolf Pokorny, that Himmler had applied himself at his -- Pohl's instigation -- the problem of sterilization with the plant, caladium seguinum, many months earlier. So unimportant was the defendant, Dr. Adolf Pokorny, for Himmler in this connection that Pohl even designated himself as instigator of the idea of sterilization with the plant, caladium seguinum, although the defendant, Dr. Adolf Pokorny, had written a letter about this subject; this letter, however, had apparently been forgotten long ago.
Since, on the one hand, a decision on the question as to what motive lay behind the letter of the defendant, Dr. Adolf Pokorny, can, in case of doubt, be made in favor of the defendant, Dr. Adolf Pokorny, on the basis of an ancient legal principle, and on the other hand according to my legal view-point no punishable fact exists at all within the meaning of Control Council Law No. 10, 1 propose the acquittal of the defendant, Dr. Adolf Pokorny.
THE PRESIDENT: When the Tribunal reconvenes we will hear from counsel for the defendant Hoven and counsel for the defendant BeckerFreyseng.
The Tribunal will be in recess until 1:30 o'clock.
(A recess was taken until 1330 hours).
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 18 July 1947.)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: The Tribunal will now hear from counsel for the defendant Hoven. Counsel will have one hour or until 30 minutes to three o'clock.
DR. GAWLIK (Counsel for the Defendant Hoven): Your Honors. Mr. President, gentlemen of the Tribunal:
"Quet homines, tot sententias" There are as many opinions as there as people. Especially now, at the conclusion of the evidence in the proceedings against Dr. Hoven. One realizes that this phrase of Cicero's is not generally applicable Everyone who has experienced the submission of evidence against Dr. Hoven should see clearly one point: this man is not what the prosecution has represented him as at the beginning of the trial in this court room.
This man is not the typical representative of the camp physicians in the concentration camps. This man is by no means the typical representative of those accomplices who willingly supported Himmler in carrying out his program on destruction in the concentration camps.
Not long ago, the press, the mouth piece of public opinion , presented the following question to the public: Is Dr. Hoven guilty at all? And if one may speak of any guilt in this man, has he not already been punished through his suffering in the concentration camp of Buchenwald, when he was imprisoned by the Gestapo from September 1943, and, finally through the further restriction of his personal liberty until this day?
It is significant that this question is being discussed at all in public and that Dr. Hoven is not simply condemmed because he worked in a concentration camp as a doctor.
Is Dr. Hoven guilty? According to the indictment, when answering this question, two things must not be omitted.
l) Merely a question of law must be decided. When making this decision, one should be guided however by any moral or ethical principles.
This question must rather he decided soberly and without passion, just as the proceedings were carried on in this court room, solely and only according to principles of law, the principles which jurisprudence has developed during the course of centruies on the basis of the laws of logic.
2) When answering this question, the yardstick of normal times and conditions must not be applied. The extraordinary conditions of those times rather must be considered instead, under which the defendant Dr. Hoven has acted.
The great Roman philospher and poet, Lucrecius, has already said in his well known work about "The Nature of Things" "During a high sea and turbulent winds, it is comfortable to watch the effort of others from ashore."
It is of course, very simple for someone who has not experienced what went on inside a concentration camp surrounded by electrically charged wires, to say: The life of one man, even that of a criminal is sacred. The killing such a person therefore is wrong under all circumstances.
This difficult problem can not be solved with such philosophical or religious doctrines which do not have even general validity. No decision of law or of justice can be based on this.
I have therefore endeavored to answer in my closing brief the charges that were brought against Dr, Hoven only by taking into account the general principles developed in law and jurisprudence.
The indictment against Dr. Hoven can be summarized in the following three points.
1) Participation in a conspiracy
2) Commission of war crimes and crimes against humanity
3) Membership in an organization which has been declared criminal by the International Military Tribunal, namely membership in the SS, which was called criminal by the IMT.
Concerning Point II Dr. Hoven is charged specifically with
a) collaboration in the typhus experiments in Buchenwald.
b. Participation in carrying out the Euthanasia Program.
I wish to treat count #3 - Membership in the SS. In this connection I refer to pages 203 - 205 of the closing brief. There I have shown in detail that Dr. Hoven:
1) Left the General SS before 1st of September 1939.
2) Did not join the Waffen SS voluntarily after the first of September 1939. He was drafter rather, into the Waffen SS by the State in such a way that he had no other choice.
Here I want to treat in detail only count of indictment #2, "Commission of war crimes and crimes against humanity."
On pages 10 to 15 of my closing brief I have, first of all, explained the legal problems. Considering prior studies of the science of International Law which preceded the drafting of Control Council Law #10, especially the report of the Inter-American - Juridical Committee of the 30th of July 1945, I must come to the conclusion that war crimes, within the meaning of Control Council Law #10, are only those violations of law and common usges of war as were perpetrated on member of the United Nations.
The prosecution has tried, in its final plea, to justify the application of Central Councel Law # 10 to punishable actions committed against Germans by saying that Law #10 was not only a principle of International Law, but also simultaneously a National Law of Germany. I wish to make the following reply to the prosecution:
Application of Law #10 as a national Law of the country should be a matter reserved to the German Courts only.
According to recognized rules of International Law, the judges of an occupying power are only competent for criminal acts which threaten public order and safety in the area administered by the occupying power. This can be seen from article 43 of the Hague Convention 1007. Moreover, the principles of International Law confirm competence of the occupying power for criminal acts which are committed during the occupation, and for the presecution of crimes, i.e. violations of laws and usages of war, perpetrated on members of United Nations. International Jurisprudence does not recognise the competence of courts of the occupying power to exceed these functions.
During the occupation of Belgium in 1914-18 the German Reich was reproached for having instituted courts for the prosecution of those crimes, courts which did not meet these prerequisites.
In this connection I refer to the statements of the well known American teacher of International Law, James Wilford Garnet and his work: "International Law and World Order Volume II page 81 especially on page 78 where Garner writes expressly that the jurisdiction of Tribunals of the occupying power is restricted to violations of a military nature only.
The prosecution of individuals for crimes against humanity is unknown in International Law. This can be seen from the aforementioned report of the 30th of July 1945 which was composed, among other, by the well-known American teachers of law, Campos, Fenwick, Costa, Robedo, and Nieto del Rio. This report expressly states that only the most serious violations of the laws of warfare can be considered as crimes against humanity. This view coincides with the opinion of the International Military Tribunal which also did not consider crimes against humanity as separate criminal acts, but which expressly declared that a crime against humanity is only then committed if this action simultaneously involves a crime against the peace, that is, if this constitutes prep aration for a war of aggression or a war crime.
I now come to the result set down on page 15 of my closing brief. Crimes against humanity are only punishable if they simultaneously fulfil the act of a war crime, or if they were committed in connection with, or in execution of, a war of aggression, and the most serious crimes are to be considered as crimes against humanity.
Since in this proceeding the charge of preparation or execution of a war of aggression has not been made, a crime against humanity is only given if the prerequisites of a war crime exist.
In part B of my closing brief I have then evaluated the results of the evidence.
If I have understood correctly, the prosecution has explained in its final plea that in this proceeding not every piece of evidence should be considered by itself. This maxim is incomprehensible to me.
In a criminal proceeding the probative value of each piece of evidence must, first of all, be carefully investigated and after such an investigation, the evidence, in toto, can justify the finding of guilt.
I have confronted the charge of execution of typhus experiments with four defensive assertions:
a) The defendant Dr. Hoven did not act as the deputy of Dr. DingSchuler constantly but formally represented him once only temporarily in Block 44 and 49 without undertaking any action. During the time of acting as deputy, no typhus experiments were carried out.
The defendant was Dr. Ding-Schuler's permanent deputy only in Block #50 where the vaccine for German Wehrmacht troops wan produced.
b) The defendant Dr. Hoven did not participate in typhus experiments in block 46.
c) The defendant Dr. Hoven, as far as was possible for him, tried to prevent the execution of typhus experiments.
d) The defendant Dr. Hoven did not select the experimental persons. Merely because he could not prevent execution of these experiments ordered by Himmler and upon irrigation of the illegal camp leadership he revised the selection of experimental persons, to prevent in this way, the use of political prisoners and especially non-German prisoners for these experiments.
For particulars I refer to statements in my closing brief pages 16 to 69.
I draw the attention of the Tribunal especially to my statements on pages 37 to 41 where I answer the views of van Leeuwarden and Hans Vondeling. There I have explained that the statements of these two persons have no probative value for the following formal and material reasons.
1) Both persons failed to make their statements under oath. In a criminal proceeding, however, a person can only be given monetary fine or sentenced to suffer forfeiture of liberty by reason of a sworn deposition. This general procedural rule of all civilized states applies also to American court procedure. The legal comments about this point are set down on page 26 of my closing brief.
2) Both persons were not subjected to cross examination although I applied for this expressly in the session of the 23rd of June 1947, as is shown on page 10113 of the German transcript.
I have repeated this application in writing on the 26th of June 1947.
Although, the prosecution holds the opinion that I was granted the right of cross examination because these two persons were interrogated in Holland by a commissioner appointed by the court. The prosecution has here however overlooked the fact that according to American Law the privilege of cross examination is only then extended if the witness appears personally in court and is confronted with the defendant. These legal principles have been set down in detail on page 39 of my closing brief where I quote decisions of American courts of Justice.
3) The testimonies of Hans Vondeling and of van Leeuwarden have been shaken by the statements of the witnesses Dorn, Pieck and De Witt as set down in detail by me on pages 39 to 41 of the closing brief in reference to decisions of American courts of Justice.