A. Up to the date of the discussion in which I have participated with Canaris, that was one of the points of this discussion. against those orders, and so forth. What were the results of these protests? modest that you can hardly call them results at all. The fact that executions were to take place out of sight of the troops instead of in sight of the troops, I can hardly call real results. ject, and had Mueller made any concessions? You told us when you were asked by General Alexander--You were questioned by Colonel Rosenblith, a representative of the Soviet Union. I am sorry, I made a mistake. Perhaps you will remember your communication to Colonel Rosenblith regarding the conversation with Mueller and the concessions Mueller has made. I shall ask you to tell us that again.
A But I am not quite clear about the name Alexander. I do not know what Alexander means in this connection.
Q Alexander was a mistake on my part. Forget it. I am interested in the question of Mueller about shootings, and so forth. selections. I gave a concrete example for the message; a particular incident was the Crimean Province, that is, with Soviet soldiers who came from the Crimea, Those who were Mohammedans were declared, for certain reasons, to be Jews and were executed; so apart from the brutality of all these measures, that shows what irrational views were responsible for the choice, views that a normal person cannot explain at all. I have already pointed that out.
THE PRESIDENT: He doesn't hear you. Carry on. Go a little bit more slowly. BY THE RUSSIAN PROSECUTOR:
Q Have you finished your conversation with Mueller?
A No, I didn't quite finish. I had many discussions with Mueller. All the subjects about which I have given evidence were subjects of conversations with Mueller, He was the person responsible, at least in one sector. I submitted, Reinecke gave the decision either from below or from me. I would be grateful if you would tell me what particular points you would like to have explained, and I would gladly repeat it.
Q You have spoken about murders, and so forth. I am interested about the shootings. What did you say about it? How were the shootings to take place after you protested about it? done in a separate place, if the troops are so distrubed by it, and if their morale suffers; that was the main meaning of what he said.
Q That was the result of your protest?
Q And the last question. Well, the conditions of the concentration camps where Soviet prisoners were taken, mass destruction of the prisoners, it was the order of the German High Command? the Reichshauptamt--I must declare that at the time I did not read the order but only heard of them through discussion with Reinecke, Reinecke as representative of the OKW, and similarly Mueller--it was in these discussions. sittings? Reinecke was not in the chair. I was not there as "Lahousen", but as a representative of the Ausland Abwehr.
they have come to you direct from the German High Command? very high place in the Reich, according to what Reinecke said at these discussions I have not seen it with my own eyes, as I repeatedly declared. these orders and when they were discussed?
A The discussion, certainly; I have already described this, of course. and burning of cities? but the commands that had been given, in respect to the prisoners.
Q About the murders only?
A (No answer)
THE PRESIDENT: Does the French Prosecutor wish to ask any questions? BY THE FRENCH PROSECUTOR:
Q Who gave the orders for the murder of the commandos?
A I didn't understand that--the destruction of the commandos? What was it exactly that you mean? Presumably the killing of members of the commando troops?
Q Who gave the orders for the execution? in our circles about this subject the idea came from Hitler himself in reorganizing the SD, but who else has helped in the reforming of the SD, I do not know.
Q The Defendants Keitel, Jodl, what orders did they handle; what orders did they give?
Q What are the reasons for these orders, as far as you know? my opinion, but as was said at the time, and I think also was in the order, and I didn't read it--it was supposed to have a prohibitive effect in order to crush and paralyze resistance.
Q Who gave the order to have General Giraud executed or murdered?
A I am sorry, Weygand and Giraud. The order to liquidate, that is, to murder Weygand and Giraud, Canaris told me it came to Keitel, but for the rest, through personal observations Keitel made to me in the case of Weygand, in the course of a lecture on the 23rd of December, 1940, at which I was present at this when Canaris was with Keitel, I was told about this order direct. In consequence, when I was asked about the progress of the affair about Weygand, and the fact that in the case of Giraud, the order went from Keitel to Canaris, I heard from Canaris himself, just as the other men who were present, and for the rest, the second time, on the occasion of a lecture when I was with Canaris at Keitel's room in July, 1942. It was communicated to us in much the same way as in the case of Weygand. And lastly, I heard it directly in the telephone conversation which I already described here. I heard it from Keitel in the form that it was a matter of extreme urgency.
THE PRESIDENT: Do you want to ask any questions, Dr. Nelte?
DR. NELTE (Counsel for Defendant Keitel): The witness, Lahousen, has given very important evidence, particularly -
THE PRESIDENT: Are you going to make a speech now?
DR. NELTE: My client, the Defendant Keitel, would like to put numerous questions to the witness after he has had a discussion with me. I therefore ask the Tribunal to allow either that there may be a considerable adjournment how or that at the next session this question may be discussed in cross-examination.
THE PRESIDENT: Very well. You shall have an opportunity to crossexamine at ten o'clock tomorrow. Does any member of the Tribunal wish to ask any questions of the witness now? BY THE TRIBUNAL (Mr. Biddle): of the Russians and in connection with the treatment of the prisoners were in writing?
Q. Were they official orders?
A. Yes, they were official orders, but it was the actual order that was brought out in a circumlocutory way. It was explained in words by Reinecke and others. It was in this way that I had my knowledge of these orders. I didn't read the orders myself at the time, but I knew that it was not merely oral arrangements, because I knew that there was something written, but I cannot say whether it was one order or what kind of orders or whether they had signatures, but my knowledge comes from discussions, from reports from which I learned quite clearly the existence of such orders.
Q. Do you know to whom or to what organizations such orders were usually addressed?
A. Orders of this kind, they went principally to the OKW, because it was a question for such matters of prisoners of war which were matters for the OKW, and Reinecke was the representative of the OKW.
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, according to their contents, many members of the Wehrmacht must have known of the contents of these orders, for the reaction of the Wehrmacht against these orders was tremendous. Apart from the service view, which is what I have reported here in Cassino and elsewhere, these things were discussed a great deal, because all these things were matters which were likely to have the most unfavorable effect on the troops, particularly the front. Officers and high-ranking Officers either did not transmit these orders or sought to evade them in some way and this was discussed a great deal in many places. I have named some of these Officers; some of them are contained in the records. It was not an every-day occurrence, but it was the topic of the day.
Q. And were the orders known to the leaders of the SA and SD?
A. They must have been known to them, for the ordinary soldiers who watched all these proceedings knew it, and even some of the civilian population; civilians came to us, people who came from the front and wounded soldiers who had heard 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): 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 we only knew about it, and we went into these conferences as representatives 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. were such instructions ever given? Were there any meetings of the high command headquarters about killings and ill-treatment of prisoners of war? subject, but I was not present at them, so I can't say anything more about it.
Q In the headquarters?
Q In the headquarters of the German Army? because our office had nothing to do with prisoners of war in this sense. We were interested in the proper treatment of prisoners. killing them and murdering? At these meetings, Ribbentrop was also present?
A No, certainly not. These discussions, I mean the one conference about which I have given testimony, took place after the fact. Everything had already happened; executions had already taken place, and the results had already been shown. Protests of all kinds had been made, had come from the front and come from other places. For example, from our own office, Abwehr, these conferences were intended to show the necessity of giving the reasons for the orders which had already been given, some of which had already been carried out, and these discussions took place after the beginning of operations, after the orders which had been given had already been carried cut.
All that had been touched upon had already happened and its effect had already been felt. Facts that had already happened were being discussed with the idea of making one more attempt on our part to rectify them.
Q All these reports about results?
A That's what I talked about, and that was the subject of the discussions with Reinecke. I did not take part in the other discussions. and burning of towns and villages?
A I must make something clear. Am I being asked about the conference in the Fuehrer's train or the case of Warsaw? According to the entries in the diary, it took place on the 12th of September 1939. The meaning of this order which Ribbentrop gave and which Keitel gave to Canaris, and which was again discussed by Ribbentrop and Canaris, was the cooperation of the national youth organizations in military operations. They had cooperated. The object of this cooperation was to cause revolution in Poland -- 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 tokens of resistance. These connections I have already described and it has already been noted in the files. The idea was not to kill Ukrainians but, on the contrary, to carry out these objects together with the Ukrainians. The cooperation had actually occurred in the connection of Ausland Abwehr and these people, who were only about five hundred or a thousand. All this cooperation can be seen by the diary. There was a pure preparation for military sabotage.
Q These instructions were received from Ribbentrop and Keitel?
A They came from Ribbentrop. Such orders which concerned the political contents couldn't possibly . . .
Q I am not asking you whether they could or could not. I am asking you where they came from. files. This is the note that I made for Canaris.
THE PRESIDENT: Yes, Doctor.
DR. DIX: 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 them until tomorrow.
(At this point a short recess was taken.)
THE PRESIDENT: I call upon counsel for the defendant Hess.
DR. von ROHRSCHEIDT (Counsel for the Defendant Hess): May it please the Tribunal, I an speaking here as counsel for the Defendant Rudolf Hess. has to decide on the question whether the defendant is capable of being heard or not, and also whether the condition are present which would make him entirely irresponsible. opinion, and has asked those who are expressing their opinion--the experts-to say whether, firstly, the defendant is in a state in which he can plead against the charge; secondly, about his mental stability. And the question here was formulated as to whether the defendant is mentally sound or not. the Tribunal has asked the experts certain questions as to whether the defendant is sufficiently in possession of his mental faculties in order to understand the proceedings, and whether an adequate defense can be undertaken --that is, whether he can understand evidence given. several different days and given their expert opinion to the Tribunal. I, as his defense counsel must, because it is my duty, after having studied these experts' opinions--I couldn't do it sufficiently thoroughly, because time was short--I personally, after having looked at these documents, and in conjunction with my experience with Defendant Hess in almost daily discussions, am of the opinion that the Defendant Hess is not capable of pleading. ing application: quashed; secondly, in case his inability to plead should be admitted by the Tribunal, I should request the Tribunal not to carry out the proceedings if the Defendant is not there. But in case the Tribunal should consider Hess fit to plead, I should ask for an arbitral expert opinion in order to decide the question.
on behalf of the Defendant, that he, Hess himself, thinks he is fit to plead and would like to tell the Court so himself.
I would now like to give the reasons for my application: like the proceedings against Hess to be temporarily quashed. The experts come to the following result--I should like to call one of them the main expert. This was given by English, Soviet, and American experts, bearing the date of 15 November, 1945. I should like to cite textually from this. In this opinion it is said that the capacity of the Defendant Hess is reduced. That is to say, his capacity to defend himself and to face a witness and to understand the evidence. I have cited this formulation because it is closest to the question put to the experts by the Tribunal.
The opinion says that even if Hess' amnesia does not prevent the defendant from understanding what is going on about 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. reports to which you wish to draw our attention?
Do you understand what I said?
DR. Von ROHRSCHEIDT: Yes.
I should like to observe that I haven't got the exact quotations according to the pages of the English text, as I only have the German translation, so I can only do it as I have just said.
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 opinion which was given on the 14th November 1945, which was drawn up by the English, Soviet and American delegations, and which included 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 is reduced in respect of being able to defend himself, to face a witness, and to understand the details of the evidence given."
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 American and English doctors. yesterday evening after I had given it back. That is, I was not able to obtain the original again.
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. I have copies of four medical reports. At the end of the document headed "Order", it says, "Copies of four medical reports are attached." the 19th of November.
dated the 20th of November. 17th of November. doctor dated the 16th of November.
These are the only ones which I have with the Court's order.
THE PRESIDENT: Yes.
I don't know what this report is that you are referring.to.
SIR DAVID MAXWELL FYFE: Dr. von Rohrscheidt seems to have an *---* 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: by Lord Moran, Dr. Reece, and Dr. Ruddock. 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. three Soviet doctors and one French doctor, Dr. Delay, dated the 16th of November. Have you got that? doctors alone, without the French doctor. rely? 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: May the Tribunal please, I think I can shorten this speech to the Tribunal. My view is that all the experts' opinions agree that the capability of the Defendant Hess to defend himself, to face a witness, and to understand the details of the evidence given -- perhaps I should keep exactly to these words in my exposition:
If we assume that all the medical opinions are agreed that the defendant Hess is reduced in his capacity for defense, I should, in my capacity as his defense counsel, be convinced that the ability to plead of the defendant Hess should be negatived. The reduction of the capability of the defendant in his defense, which is recognized as a mental defect, as amnesia, recognized by all the experts, shows a mental condition of a mixed kind but anyhow a mental defect, so he should not be considered as fit to plead. experts shows, as was stated in the question to the experts, that on account of this mental defect, the amnesia, proper defense for the defendant Hess is not possible. The opinions also assume that the defendant is not actually insane. That is not the important point at the moment because according to the medical opinion it is affirmatively stated, in my opinion, that the defendant is not in a condition to follow everything in consequence of the reduction of his mental capacity. the medical opinion -- think that the defendant is quite incapable of making himself understood to the extent that one would expect from a mentally normal person, to the extent that one would expect and demand from a mentally normal person. experience with him -- is not capable of understanding what the Tribunal says to him in such a manner as is necessary for his defense, because his memory is very unreliable. Through his loss of memory he knows neither events which have happened in the past nor the persons who were associated with him in the past. I therefore am of the opinion that the opposite opinion of the defendant himself, namely, that he is fit to plead, is irrelevant. As the reduction of the defendant's capacity, according to medical opinion, will not soon be improved, I am therefore of the opinion that the proceedings against Defendant Hess should be quashed.
narcotic analysis, would bring improvement is not certain, nor in what way nor at what time the health of the defendant can be restored. The medical opinions reproach the defendant with refusing to have such medical treatment. The defendant tells me, on the contrary, that he would be ready to undergo such treatment, but he refused the treatment in this case because, first of all, he thinks he is already fit to plead and therefore considers such a cure unnecessary, and also because he is an opponent of such forceful methods, and finally because he is of the opinion that such forced operation just at this time might make him unfit to plead, that is to say, would rather exclude him from the proceedings, which is just what he wishes to avoid. defending himself, as medical opinion says, and if this state is likely to last for a long time, this would be a condition for temporary suspension of the proceedings against him.
My second application: In case this Tribunal should allow my application and declare the defendant Hess unfit to plead, then, according to Article 12 of the Charter, it is possible to proceed against the defendant in absentia. Section 12 provides that the Tribunal has the right to proceed against a defendant in his absence if he cannot be found, or if this is in the interests of justice or other reasons. Is it then in the interests of justice to proceed against the defendant in absentia ? In my opinion, it is not in accordance with objective justice if actual proofs are available, as they are here, that the defendant's capacity is reduced because of illness and he is hindered in defending himself personally. even the death penalty is to be expected. It is therefore incompatible with objective justice if medical experts say he is not capable of defending himself.
And according to Paragraph 12 of the Charter, this right in Paragraph 16 of the Charter provides for a defense and also the possibility of bringing personal evidence for his defense, and cross examining any witness, and this is most important for the defense and any exclusion of such a possibility is, in my opinion, not right. Proceedings in absentia would preclude all this, and therefore could not be considered just.
the reasons already stated, to such a degree then the defendant is not in a position to give his Counsel the necessary information and then to put his Counsel in a position to defend him in his absence. defendants to form their own defense, it seems to me as Defense Counsel unjust to deprive the defendant of these rights because he is hindered by reasons of illness from being there. The possibility of carrying out proceedings in absentia against a defendant must surely be looked upon as an exception which should only be applied against a defendant if he wishes to avoid the proceedings. But defendant Hess has told me and emphasized to me, and he will probably do it to the Tribunal, that he wishes to attend the proceedings, and he will certainly feel it is particularly unjust if he were ready to plead and should be excluded and the proceedings were carried out in absentia. defendant not competent to plead, that it not proceed in his absence.
Now, one more application: if the Tribunal, against my own opinion and against the opinion which, in my view, is expressed in the medical statements, should consider he is fit to plead, I should ask for one more medical opinion and that this question may be investigated once more, because I have seen from the medical statements already available that the experts have only spoken with Hess for a short time, in one case only for two days, and in any case for a very short period. In a case of such world-wide importance it seems to me necessary that a complete picture should be given.
For this longer examination would be necessary, perhaps in a suitable hospital, and he observed for weeks at a time. The experts themselves are obviously not quite sure whether the Defendant Hess is mentally ill, even beyond what is admitted; that is, not capable of pleading that he is mentally deficient. This opinion I have gained because all the medical statements emphasize that the accused is not considered fit to plead, that he should be again subjected to a psychiatric examination. I think this suggestion should be followed in accordance with the suggestion made by the psychiatrists we have already examined him. I should therefore plead, if the Tribunal should consider the defendant fit to plead, that the suggestion of psychiatrists should be followed and that another opinion should be taken.
THE PRESIDENT: I want to ask you one question: Is it not consistent with all the medical opinions that the defendant is capable of understanding the course of the proceedings, and that the only illness from which he is suffering is his forgetfulness about what happened before he flew to England?
DR. von ROHRSCHEIDT: Mr. President, it is true that the experts say that the Defendant Hess is capable of following the proceedings. That is true. But they emphasize, on the other hand, that the defendant is not capable of defending himself. In the manner in which the questions were put to the experts, the Tribunal asked the experts to state their views on the following: Is the Defendant mentally sound or not? This question is answered by all experts in the affirmative, that he is mentally sound. But that does not exclude the fact that the Defendant might at the moment be incapable of pleading and in this respect the experts again, referring to the questions put to them -- the Tribunal would like to know whether the Defendant is capable of following the course of the proceedings, can he carry out adequate defense as a witness and understand the evidence? question, give the answer that the defendant is not capable of carrying out an adequate defense, to put objections to the witness, or to follow the details of the evidence given.
That is, I consider, contained in all the experts' opinions. delegations, if I may submit that to the Court, the date 20th of November, "as a result of our said investigations, we find that Hess is suffering from hysteria and loss of memory." Now comes this passage, "The loss of memory is of such a kind that it will not disturb his understanding of the proceedings, but in respect to questions about his past, he will not respond and that would reduce the weight of his defense. Therefore the capability of the accused for defense is reduced." And in the medical opinion of the French delegation, signed by Professor Delay, that too says that the defendant can understand everything that goes on around him, but that his amnesia has such an effect on his capability of carrying out his defense, and to understand all the' details which refer to his past, that these facts must be looked upon as disturbing. I considered that if one interprets these statements as the experts intended, the experts mean that the Defendant is not insane, he can follow the proceedings but he cannot defend himself because he is suffering from a credible amnesia.
THE TRIBUNAL (Judge Biddle): Do you accept the opinion of the experts?
DR. von ROHRSCHEIDT: Yes.
THE TRIBUNAL (General Nikitchenko): I should like to know the translation. I should like to draw the attention of the defense that he is incorrectly referring to the experts' opinion of the Soviet experts and French expert. Very good translating; not quite correctly. It was a free translation.
DR. von ROHRSCHEIDT: May I read to the Tribunal what my translation says? The translation was made here in the Bureau and was given to me in this translation. May I repeat that the translation in my possession refers to the 16th of November 1945, and was signed by the members of the Soviet delegation, and Professor Delay in Paris.
Sub-number three:
"At the present moment the Defendant is not insane in the strict sense of the word. His amnesia does not prevent him from following everything that is going on around him. But it affects his capability of carrying out the defense and of remembering all details of the past, and might be disturbing."
THE PRESIDENT: That is all we wish to ask you. Does the Chief Prosecutor for the United States wish to address the Tribunal?
MR. JUSTICE JACKSON: I think General Rudenko would like to open discussion, if that is agreeable.
THE PRESIDENT: Yes. Are you going on?
GENERAL RUDENKO: In connection with the statement made by the defense, and as a result of the Doctors' opinion, I am inclined to say the following: The condition of Hess was examined by experts. These experts appointed by the Tribunal have agreed that Hess is sane and can answer for his actions. The Chief Prosecutors have discussed the results of this according to the orders of the Tribunal and have answered the question of the Tribunal as follows:
One, we have no questions and doubts about the Commission's report. We are of opinion that Hess can be tried.