The short and conclusive answer to this much-mooted question is that the execution of hostages practically never achieves its intended effect. If the practice is once adopted on a systematic scale, it deteriorates rapidly into a barbaric blood bath. The officers and men of an occupying force will always find it easier to take vengeance on innocent civilians who can be readily rounded up than to track down the actual perpetrators and bring them to justice; it is only human nature, though scarcely a credit to it, that once the taking and killing of hostages is sanctioned, efforts to apprehend, the real offenders will be slackened, and repeated breaches of security will be countered only by ever greater slaughter of hostages. Furthermore, the execution of hostages, far from frightening a rebellious people into submission, tends rather to deepen their hatred for the invaders and provoke them to renewed outbursts.
Even the timid and quiescent will be driven to resist, not so much out of patriotism, as because they are no longer sure that good behavior will safeguard their own security. When hostages are going executed at the rate of 100:1, there is no security for anyone. If women and children and old men of the most pacific disposition are liable to be put away in concentration camps and eventually executed because of violence in the surrounding countryside, they will soon feel much safer in the ranks of the insurgents than anywhere else.
And that is just what happened in the countries with which we have been chiefly concerned today. The truth of what I have just said should have become apparent to the Germans within a matter of weeks after large scale military operations in Yugoslavia had been concluded, It did become apparent to some of them, but they were not listened to. As early as the 31st of July 1941, a German lieutenant colonel in Belgrade wrote a report to the defendant List in which he said:
Though nothing is said publicly about the shooting of Jews and Communists as reprisal for acts of sabotage, these shoot ings have, however, made a deep impression in Belgrade.
It is doubtful whether the shooting will prevent a repetition of acts of sabotage. The saboteurs are to be looked for in the camp of the former Serbian officers, of the Cetniks as well as of the Communists, who have the common interest of creating unrest in the country and stirring up the population to boiling point against the occupation authorities. For their purpose the shooting of people who did not directly participate in the acts of sabotage is actually welcome.
One week later, another report from Belgrade stated:
Reprisal measures, as for instance the severity of the shooting of 81 persons collected haphazardly did not bring out pacification nor did it serve as an intimidation. On the contrary, the feeling of being plundered, chased away, or slaughtered with wife and child, either by criminal Ustaschi people in Bosnia or Herzogowina, or by robber elements, or to lose life and property as the casual object of reprisal at the hands of the Germans, has embittered and made desperate the otherwise quiet and politically indifferent and loyal parts of the Serbian population, who are automatically driven into the ranks of some kind of insurgent groups.
The German civil authorities in Belgrade were of the same opinion A report dated 20 August, 1941, by an official of the Ministry of Interior to the Military Commander in Serbia, disclosed the following:
A German officer - a captain - was killed from ambush on the road Arandjelovak-Topola, 4 kilometers from Arandjelovac near the village of Banja on the morning of 16 August. The officer was going on duty by car to Belgrade. The offense was committed by a Communist who has remained unknown. This Communist had been lying in ambush in the cornfield and had fled through the corn to the woods after committing the deed.
Eleven young farmers working in the fields were captured and shot for this murder by the Germans at the place of the incident, a state of siege was declared for the entire district.
In order to combat Communist operations which had got out of hand during the last few days, the German headquarters sent a notorized assault troop which is at present going through all the villages, making arrests and - due to ignorance of the situation - is killing innocent men, women and children. All this is done on their own initiative, without inquiries and without any kind of close cooperation with the Administrative authorities at the Gendarmerie, although such cooperation is an absolute necessity for the combating of the Communist action and for exterminating the Communists in the woods. The District Office has available reports from which the movements of the Communists could be established and it also has at it's disposal all personal data of the individual Communists. However, the German headquarters does not request anything nor does it ask the District Administration for any information, and is opposed to taking to any suggestion.
The consequence of the procedure of the German assault troups will be that a large number of innocent people will be slaughtered and that the Communists in the woods not only will not be exterminated but will increase in numbers. Because many farmers, even entire villages - even though up to now they had no connection with the communists - will flee into the woods only out of fear and will be received there by the Communists. They will be provided with arms and used for combat and for open revolt against the German Wehrmacht.
This insurrection will develop on a large scale and will have incalculable and terrible consequences for the entire population.
There was no lack of these warnings. With respect to reprisal shootings carried out in the town of Kragujevac, the local German1 commandant, a captain, reported to the Military Commander in Serbia:
1. It goes without saying that even those commentators who have defended the principle of executing hostages on the ground of military necessity make no defense of the German Army's practice of this principle. See Hammer and Salvin, op. cit. supra. pp. 26, 27-28 and 32; see also Stewell, Military Reprisals and the Sanctions of the Laws of War, in "The American Journal of International Law" (1942) According to my standpoint, shooting partly or completely innocent persons from this city can have directly harmful effects.
It is to be expected that embittered relatives of those shot will now practice acts of revenge on members of the German Wehrmacht.
Sabotage acts on drinking water and on the current temporary light supply, as well as a large attack of the bandits against the city, in which the units could suffer more losses than before, are not out of the realm of possibility. Above all, the psychological effect will be catastrophic. The residents of Kragujevac have expected of the German Wehrmacht the elimination of the Communist danger and the alligning into the new construction of Europe. With the methods used here, we shall not attain in any case the winning again of the favorably-inclined elements.
Two years later, the same Cassandra-like prophesies are found in the documents. No one can ever say that these defendants were not warned. In July 1943, Glaise-Horstenau, the German Plenipotentiary-General in Croatia, strongly admonished the German Air Force for reprisal actions by way of bombing villages, because, I quote, Wit only forces additional adversaries 'into the woods', and it does not help to pacify the country, but is detrimental and shake's the confidence in the German soldier of those parts of the population which are of good will". But not until December 1943 did the German military leaders in the Balkans even pay lip service to these truths. Finally, Loehr's order of that month recognized that, and I quote:
"The procedure of carrying out reprisal measures after a surprise attack or an act of sabotage at random on persons and dwellings, in the vicinity, close to the scene of the deed, shakes the confidence in the justice of the occupying power and also drives the loyal part of the population into the woods."
But even this order was, in other aspects, so ambiguous that it did little to change those stupid and cruel policies. The slaughter of the innocent continued and the Germans reaped only a harvest of dragons' teeth.
The second set of principles of international law which are worthy of preliminary discussion at this time are those pertaining to the qualifications of belligerents. Under what circumstances are combatants entitled to belligerent status? Under what circumstances must they, if captured, be treated as prisoners-of-war, and under what circumstances may they be treated as a meree armed band and disposed of by summary execution?
These questions are especially relevant to Count Three of the indictment.
The Hague Regulations do deal with this question in Article 1 of the Annex which provides:
The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions:
1. To be commanded by a person responsible for his subordinates;
2. To have a fixed distinctive emblem recognizable at a distance;
3. To carry arms openly; and 4. To conduct their operations in accordance with the laws and customs of war.
These requirements are traditional and generally accepted. To the extent that captured partisans in Greece and the Balkans did not observe then, we may concede that the Germans would have been within their rights in denying them the status of prisoners-of-war and executing them.1 But this does not mean that all of us here in the courtroom could here and new form ourselves into a military company, choose a commander, wear a distinctive emblem, carry arms openly, and obey the laws and customs of war, and on that basis alone claim the right here and now to wage warfare and the status of prisoners-of-war if captured.
Obviously, the members of an armed group can not claim the status and rights of belligerents until a war has started. The determination of the starting point of a war may sometimes present problems, but ordinarily the far more difficult question is to ascertain when a war has stopped. In accordance with "the laws of humanity and the dictates of the public conscience", it is desirable that wars be stopped as soon as possible, and under some circumstances it may be wise to adopt a 1. Except insofar as the provisions of Article 2 of the Annex, relating to the so-called "levy on masse" may have applied, and except insofar as the Germans themselves, by commiting the crime of waging aggressive war and, in their own operations, departing from the laws and customs of war, may have deprived themselves of the right to demand compliance with Article 1 on the part of the partisans.
fairly rigorous attitude when major military operations have come to and end, and declare that, after the signing of a treaty or armistice, the inhabitants of the defeated and occupied country, civilians and former soldiers alike, no longer have the right to carry on warfare and can not claim the status of belligerents.
On the other hand it can be, and is, often argued cogently and with the benefit of many examples from history, that nations can rise from apparent total defeat, long after the capitulation of their own former government, expel the invader, and ultimately achieve victory. As long as there is hope and particularly if there are strong allied nations as yet undefeated, true patriots of the conquered country will continue to offer desperate resistance to the invader, no matter what armistice or treaties may have been concluded with him.
The argument between the proponents of those two divergent approaches to the problem has been waged briskly ever since the representatives of the European powers met at Brussels in 1874 to formulate a code of war. In general, the powerful countries with large armies have tended to favor strict qualifications for belligerent status, and the smaller powers a very much more liberal set of rules.1 It goes without saying that the Germans have been in the vanguard of the former group of powers.
The International Red Cross has consistently sought to extend the protection of the laws of war to the members of all substantial armed groups who meet the requirements of Article 1 of the Annex to the Hague Conventions.2 We can not, in this proceeding, settle this therny and complicated problem. And we do not need to.
1. An excellent discussion of these questions is contained in Nurick and Barrett, Legality of Guerrilla Forces in the Laws of War, in "The American Journal of International Law", pp. 563-583 "(July 1946.) See also I.P.Training, Questions of Guerrilla Warfare in the Law of War, in the same publication at pp. 534-562.
2. Rapport sur l'activite du Comite international de la CroixRouge en faveur des "partisans" tombes aux mains do l'ennemi, Geneva, October 1946.
To begin with, it will be quite clear that the war did not end in Yugoslavia in April or May, 1941. Article 42 of the Annex to the Hague Conventions states very clearly that:
A territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.
The second sentence quoted above is of special importance. No doubt the Germans, had they so chosen, could have left sufficient troops in Yugoslavia to establish their authority throughout the country. But they chose not to do this. They were pre-occupied with the forth-coming campaign in Russia, and pulled out their troops before hostilities had been fully concluded in practical effect and while large portions of the country, particularly in the mountains, were controlled by substantial enemy forces who announced openly that they would continue to resist. Whatever might be the rule in other circumstances, it was not open to the Germans to sweep through Yugoslavia, evacuate the bulk of their troops before their authority had been fully established, and then declare that all future resistance would be considered a violation of the laws of war.
Furthermore, the cause of the Yugoslavian and Greek resistance forces was at no time hopeless, as events have abundantly proved. Governments-in-exile were promptly established, under whose authority these forces continued their operations, indeed, long before the end of the war, there was an enemy government within Yugoslavia. Powerful allies of the Yugoslavs and Greeks continued to maintain armies in the field and to assist the resistance groups.
Furthermore, if we look at the question as presented in this case from a practical standpoint, we again discover that the case is not nearly so difficult as it seemed at first blush. If resistance forces consist only of a few small bands, whose activities are limited to sniping and minor sabotage and who enjoy no support from other powers, there may indeed be reason for denying them the status of belliger ents.
1 But there can be no reason for such a policy when the enemy remains in large numbers, and fights in large units and with modern weapons. To deny his troops the status of belligerents under such circumstances will merely invite counter-reprisals against troops of the occupying power, and a senseless war of extermination may ensue. Even more important, such a policy will inevitably rally more and more inhabitants of the occupied country to the standard of the resistance forces. These very arguments were presented to Loehr and Lueters by Colonel Heinz, Commander of the 4th Brandenburg regiment, in July 1943. Discussing the impossibility of capturing Tito and his staff by orthodox military action, Heinz declared:
Such an elimination can only be achieved by former partisans in cooperation with the Brandenburg regiments.
The method followed up to now of shooting to death all partisans without distinction, could never be successful. Many became partisans by the combined influence of several circumstances such as Usataschi-Moslem-or Cetnik-atrocities, want and starvation, terror and duress by other partisans.
They stay partisans because the way back is blocked by the German orders. They have lost their country and their family, and so they fight to their death.
Since the political conditions in Croatia are not improving, now partisans replace those who are killed.
According to observations of my troop, it would have been possible to win over a certain percentage of the captured partisans for fighting on the German side, if their lives were spared and food, as well as their return to their homesteads later on, were guaranteed.
1. But the distinguished jurist, Oppenheim, would not even agree with this statement, Oppenheim, International Law, Sec. 60 (1928).
But the final and compelling answer to the question as it is presented in this case is that the Yugoslavs and Greeks alike, even assuming that they were completely conquered and their country wholly occupied and under German authority, had every right to rise and defend themselves by armed force because the German themselves so flagrantly violated the laws of war. True it is that the inhabitants of an occupied territory have responsibilities and duties as well as rights under the Hague Conventions. If the occupying forces comport themselves lawfully, the population is under a duty to remain peaceful and to refrain from endangering the security of the occupation troops. If the inhabitants do not fulfill these responsibilities, the occupying forces may take proper security measures, including retaliatory action, to re-establish order. But this works both ways. If the occupying forces inaugurate a systematic program of criminal terror, they can not thereafter call the inhabitants to account for taking measures in self defense. This is no technical doctrine of "unclean hands", this is elementary justice and common sense. What I have said nowhere appears in so many words in the Hague Conventions, but it is in entire harmony with the purpose of the articles, and I think no one will be heard to deny that this is the only conclusion which is possible in accordance with "the principles of the law of nationa, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience."
In this case, ten thousand times ton thousand murders are charged, and for murder there is usually a motive. What moved these men to murder? Some of them religious, most of them well-educated. Some of them may now realize what they did was wrong, but, had the war ended otherwise than it did, I doubt that these things would have caused them many restless nights. Their policy of terror was a military failure, and an important cause of the defeat which has brought them to their present plight. Yet these men are certainly not without ability and some measure of understanding. Why did they not see what others saw so clearly?
I think that we can find the answer in two deep-seated characteristics of the German military mind. Whether the characteristics prove the inheritance of acquired characteristics, whether they spring from undiscernible geophysical factors, or whether they are the result of the curious and narrow training and indoctrination to which German officer candidates are subjected, one may leave to the educators, historians, psychologists and anthropologists. Today is the day of the jurists, and today it is sufficient to observe that the characteristics of which I speak led these men, and others of their caste, into crime.
One of these qualities is that their every thought and impulse is geared to a world in which Germany is at war, in which Germany is attacking and invading, in which Germany is conquering and occupying. Lacking such conditions, their world is in a state of suspended animation. Their martial fantasies have permeated German scholarship and, by the latter part of the nineteenth century, had thoroughly poisoned the most distinguished German minds. It was the great German historian and philosopher Treitschke who declared:1 It is not for Germans to repeat the commonplaces of the apostles of peace or of the priests of Mammon, nor should they close their eyes before the cruel necessities of the age.
Yes, ours is an epoch of war, our age is an age of iron. If the strong get the better of the weak, it is an inexorable law of life.
For the German militarist, other nations exist only to be conquered by Germany. They persist in the illusion that the other nations will benefit thereby, and are often sincerely puzzled when their occupying armies are treated coldly. This, too, we find Treitschke:la We Germans, who know Germany and France, know better what is good for Alsace than the unhappy people themselves, who through their French associations have lived in ignorance of the new Germany.
We will give them back their own identity against their will. We have in the enormous 1. J. H. Morgan, The German War Book, p.42 (1915) la.
Morgan, op. cit. supra. p. 46 changes of these times too often seen in glad astonishment the immortal working of the moral forces of History to be able to believe in the value of a plebiscite on this matter.
We invoke the men of the past against the present.
With such a point of view towards war and the rights of German conquerors, it is no wonder that German military leaders have little or no respect for the laws of war or the dignity of peoples who may come under their way. This is because they do not value, and in fact are contemptuous of, the reasons which underlie those rules. "If the strong get the better of the weak, it is an inexorable law of life, " This attitude shows only too clearly in the "German War Book" -- the manual of the usages of war on land, issued by the Great General Staff (Gorss General Stab) of the German army. In the introduction to this manual, we read:1 Nowadays it is not only the army which influences the spirit of the customs of war and assures recognition of its unwritten laws.
Since the almost universal introduction of conscription, the people themselves exercise a profound influence upon this spirit. In the modern usages of war, one can no longer regard merely the traditional inheritance of the ancient etiquette of the profession of arms, and the professional outlook accompanying it, but there is also the deposit of the currents of thought which agitate our time. But since the tendency of thought of the last century (i.e. the 19th century) was dominated essentially by humanitarian considerations which not infrequently degenerated into sentimentality and flabby emotion, there have not been wanting attempts to influence the development of the usages of war in a way which was in fundamental contradiction with the nature of war and its object. Attempts of this kind will also not be wanting in the future, the more so as these agitations have found a kind of moral recognition in provisions of the Geneva Convention and the Brussels and Hague conferences.
In this case, the second marked characteristic of the German officer caste comes into sharp focus - their profound contempt, mingled with fear, of the peoples of Eastern Europe. Again and again this emerges in the orders to their troops and the reports to their superiors. We hear this note in Keitel's order of September, 1941, declaring that "a human like in unsettled countries frequently counts for nothing". Von Weichs, when he inaugurated the 100:1 ratio a few 1. Morgan, op.
cit. supra, p. 54.
months earlier, responded, to the same inner feeling. These orders, too, are echoes of Treitschke, whose voice, spanning over half a century, is heard, to say:1 Each dragoon who knocks a Croat an the head does far more for the German cause than the finest political brain that ever wielded a trenchant pen.
What these men have never realized is that no caste, and no notion, however mighty, can hold the world in contempt and set its laws at naught. Their military downfall was due, in no small part, to crimes such as those with which they are charged.
What we have said may explain, hut it does not condone. We may try to understand, but it is not ours to forgive. What these men did they meant to do.
There are only 11 men physically present in the dock, but they do not stand there alone. In a sense, they are hostages for the judgment which history will pass on many others like them. But they are more fortunate than the hostages we have heard so much about today. They will not he punished for the crimes of other man. Centuries ago, Grotius wrote that "hostages should not he put to death unless they have themselves done wrong." That is the law of humanity, the law which they themselves are charged with transgressing. And that is the law under which they will he judged.
GENERAL TAYLOR: This concludes the statement, your Honor.
THE PRESIDENT: This, I take it, concludes the Opening Statement on behalf of the Prosecution. The Prosecution having stated that this concludes that portion of these proceedings, the Court will now give consideration to certain nations which have been presented to it concerning procedural matters, and a motion for continuance or adjournment for a certain period of time. The first motion which will receive consideration is that concerning the request for ferment of these 1. Garner, op.
cit. supra, p. 43.
proceedings to a later date, which has been presented by counsel for the defendant. We will hear from the defense at this time.
DR. LATERNSER: Mr. President, Honorable Judges, the application in question is already in the hands of the Tribunal in writing. That is merely just an additional reason which I would like to add, which in my opinion will be the decisive one, so that the motion will be granted. The defense is engaged in obtaining evidence, and considerable difficulties have occurred in this connection, and because, up to the end of the month of June, two American camps were dissolved. The inmates have partly been released, and some of them were transferred to other camps so that the defense is not now in possession of the addresses of witnesses whom we wish to call. This, of course, is an additional difficulty and an additional reason which I would like to state in order to give additional weight to the application of the defense, and that is all that I wish to say in connection with that question.
THE PRESIDENT: The Tribunal desires to make some inquiries at this time. I understand that there are only three counsels who are affected.
DR. LATERNSER: Mr. President, might I add that I should like to repeat the application with the agreement of all the defense counsels in this trial.
THE PRESIDENT: Perhaps Mr. Denney could make some reply at this time and expedite the matter.
MR. DENNEY: May it please your Honor, the application of which Dr. Laternser speaks is dated 11 July and was served on us, the Prosecution, last evening, and our memorandum in reply was given to the Secretary General this morning, just before the Court convened. At that time Dr. Laternser was given a copy in English, and I believe that it has not as yet been translated into the German. The motion, or rather the application, as presented by Dr. Laternser is signed by six of the nine counsel. The first point which is urged is the fact that at the present time most of the defense counsel are engaged in other trials, which are now approaching their conclusion.
To my knowledge the only trial which is presently approaching its conclusion is the Trial No. 1, before Military Tribunal No. 1, the United States against Karl Brandt and others. Three of the nine counsel who represent defendants in this cause have clients in cause No. 1 before Military Tribunal No. 1. They are Dr. Weissberger, Dr. Marx, and Dr. Sauter. The application for adjournment was signed by Dr. Weissberger and Dr. Marx, each of whom has one client in this cause, one of whom has one client before Military Tribunal No. 1, and the other of whom, Dr. Marx, has two clients before Military Tribunal No. 1. The third counsel appearing in this cause, Dr. Sauter, has two clients before this Court and two clients in causes before Military Tribunal No. 1, but it was not until Dr. Laternser's statement of a moment ago that we were advised that he joined in the application.
He did not sign the original application dated 11 July.
Secondly, the counsel for the defense urge that only one week will have elasped between the opening session , if no adjournment is granted, and the time when the proceedings were commenced by the arraignment. I might call the court's attention to the rules, the uniform rules of procedure, Military Tribunal of Nurnberg, 1 April 1947, OMGUS. Rule 26 provides, in part, to defense counsel representing multiple defendants, I quote--"No adjournment or delay shall be granted any defendant on the ground that his counsel is engaged in the trial of another cause before a separate tribunal."
Rule 4 of the same rules makes provision with reference to time intervening before servide and trial. This rule provides a period of not less than thirty days shall intervene between the service of the indictment upon a defendant and the day of his trial pursuant to the indictment.
There is no provision in the rules which makes it mandatory in a cause that there be any specified time between the arraignment and the commencement of the trial. In the instant case, more than sixty days, or over twice the statutory period, rather the time required by the rules, have elapsed since the indictment was served on the defendants.
As to the fourth ground urged by Dr. Laternser this afternoon, the fact that the Office of Military Government. United States for Germany, had dissolved two American camps and that they have had difficulty in obtaining addresses and hence have not been able to collect their evidence--it is submitted that they can continue to endeavor to collect evidence at the time that the case is going forward, which we anticipate will take several weeks.
Further, with reference to the documents, we plan to present approximately 325 in the Prosecution's Case, in chief, of these 428 have already been made available to the Defense Information Center and approximately 400 of these have been furnished for use of defense counsel prior to the first of July, and it is respectfully submitted by the Prosecution that the application for the postponement which has been made by defense counsel through Dr. Laternser be denied.
DR. LATERNSER: Mr. President, I should like to draw attention to the fact that it is not true that only three of my colleagues are active in other trials. Yesterday, I ascertained on a conference with my colleagues that there are six of them who are thus engaged, some of them in the medical trial, some of them in the SS trial and they are particularly overburdened with work at the moment since some of them are preparing their pleas and others are at present dealing with their own defense case.
There is one more point dealing with documents. Naturally, we have for some time had the documents of the prosecution for our perusal but those documents are so voluminous that during the short period which we had at our disposal we have had no opportunity for going through them as throughly as is essential for speedy and simple development of these development of these proceedings and that is all that I have to add to the application for an adjournment.
HR. DENNEY: Your Honor, please may I say one thing in reply to what Dr. Laternser said about other counsel being engaged? I mentioned only the military--or the medical case, because of the fact that paragraph one of the application reads as follows and I quote: "Host of the defense counsel are at present time still engaged in other trials which are now approaching their conclusion; in the physicians! trial, for example, the final pleadings will be hold by the defense next week (which is this week, this memorandum being dated t he 11th). For those pleadings, the presence of all the defense counsel is absolutely necessary."
I am not unaware that other counsel are acting in cases No.6, No.4 and.
No. 3. However, I have talked, with counsel for the prosecution in cases 4, 6, and 3, and have been advised by all of them that those cases are not approaching conclusion. Therefore, I would urge the court that Dr. Laternser's motion be limited to the specifications he makes in the first paragraph of his application to the effect that they are engaged in trials now approaching their conclusion. I was not aware that he was urging on this court the fact that other counsel have clients in other cases. I am, in fact, prepared to furnish the court with a list of co-counsel with Dr. Laternser who are in cases other than case one, but to my knowledge that was not raised by the application--or, so far as I was concerned, the question was not raised by the application.
THE PRESIDENT: The motion as presented will be considered submitted to this Tribunal and we shall rule shortly upon this motion. We shall not do so at this time.
INTERPRETER FRANCK: We did not hear you.
THE PRESIDENT: I shall repeat the statement that I previously made. The Tribunal will not rule upon this motion which has now been submitted at this time but we shall presently do so before the final adjournment of this Tribunal session. We shall now proceed with the submission of the second motion which concerns the seating of certain counsel for the defendants.
DR. LATERNSER: I believe, Mr. President, there is an erratic transition under way. The further application made by the defense is aiming at the cancellation of a measure which is intended, through which the defendants who, up to now, have remained in solitary confinement in the prison should be accommodated in pairs in solitary cells. As I heard of such an intention, I made an application to the effect that I am asking the Tribunal to decide that such a joint confinement of defendants of two in one cell should be refrained from, because the Defense----
THE PRESIDENT: May I interrupt, please? This Tribunal has not been furnished any such motion at this time. We have had presented to us an application concerning the seating of counsel, and that is-these two motions are the only ones that have been presented and sent to our respective offices.
DR. LATERNSER: Quite. Mr. President, the application which I have touched upon just now has been submitted to me in writing but I am able to present it to you immediately because the Defense is greatly interested in the decision about the application which we are now dealing with. In the event of the intended measures being carried out, the Defense would feel that their case would thus be limited and we wish to prevent such an occurrence from being realized.
Mr. President, as we have been informed, the defendants who up to now were accommodated in solitary confinement in the prison are now to be accommodated in pairs bf two in a solitary confinement cell. We have further been informed that the reason for such procedure is supposed to be that just recently there have been individual cases of attempted suicides. The realization of the measure which appears to be intended is objected to very strongly by the defense. Apart from the fact that it wouldn't be proper that one defendant should be made the watchdog for another defendant, the prison cells are only designed for one inhabitant and consequently their measurement is too small for two defendants. For that reason alone, the joining of two defendants in such a cell would represent a very severe measure which, psychologically speaking, would affect the defendants most unfavorably. In addition to that, on health grounds this measure would have disadvantages since this space is too small for two defendants and circulation too is restricted, particularly with regard to the trial which is now about to start, and which will make considerable demands to the mental powers of the defendants, everything must be avoided which would result in a disturbance of a defendant.
On the trial days, for instance, defendants only have the evening hours to afford them the opportunity to work through the record of the trial and to prepare for the next day. Since the lighting arrangement of the cells is done from the outside, however, defendants have had to make do of it, that they pushed their little table to the door through which the light was coming in. In that manner, at least one defendant can, in a make shift way read. A second table would not find room for such an arrangement in such a cell and certainly not get enough light for the second defendant too to be able to read.