Nuremberg Trial – The Ninth Day

Ninth Day:

Friday, 30th November, 1945

THE PRESIDENT: I call on the prosecutor for the United States.

MR. JUSTICE JACKSON: Colonel Amen will represent the United States this morning.

COLONEL JOHN H. AMEN: May it please the Tribunal, I propose to call as the first witness for the prosecution, Major- General Erwin Lahousen.

THE PRESIDENT: The Tribunal wish me to state that the evidence of the witness, whom you propose to call, must be strictly confined to the Count with which the United States are dealing, Count One.

COLONEL AMEN: May I have a moment to discuss that with the Chief Counsel of the United States?

THE PRESIDENT: Yes, certainly.

DR. OTTO NELTE: Mr. President, so far as I know the prosecution –

THE PRESIDENT: Could you state for whom you appear? Do you appear for the defendant, Keitel?

DR. NELTE: Yes.

As far as I know, an agreement was reached between the prosecution and the defence, to the effect that whenever possible, questions to be discussed on the following day should be communicated beforehand. The obvious purpose of this understanding, which seems reasonable to me, was to give the defence counsel the possibility to discuss forthcoming questions with their clients, and thus expedite the rapid and smooth progress of the trial.

I did not hear that the witness, Lahousen, was to be summoned by the prosecution today, nor did I hear on what questions he was to be heard.

This was particularly important, because today, I believe, we were not to deal with questions, nor was the witness, Lahousen, to be heard on questions connected with the address delivered by the prosecution during the preceding days.

THE PRESIDENT: That is the contrary of what I said. What I said was that the witness was to be confined to evidence relating to Count One, which is the count that has been solely discussed up to the present date.

DR. NELTE: Does the President wish to say that in order to make it possible for the defence to subject the witness to cross-examination, they will be given the possibility, after interrogation by the prosecution, to speak with the defendant during a recess, so that they will know what questions to ask? The witness, Lahousen, as far as I recall, has not been mentioned in the address of the prosecution.

THE PRESIDENT: Is that all you have to say?

DR. NELTE: Yes.

THE PRESIDENT: I think the Tribunal would like to hear counsel for the United States upon the agreement which counsel for the defendant, Keitel, alleges, namely, an agreement to the effect that what was to be discussed on the following day should be communicated to the defendants’ counsel beforehand.

MR. JUSTICE JACKSON: I know of no agreement to inform defendants’ counsel of any witness, nor of his testimony; nor would I want to make such. There are security reasons involved in disclosing to defence counsel the names of witnesses, which I don’t need to enlarge.

I am quite sure we did advise them that they would be given information as to the documentary matters, and I think that has been adhered to.

As to witnesses, however, a matter of policy arises. These witnesses are not always prisoners. They have to be treated in somewhat different fashion to prisoners; and the protection of their security is a very important consideration, when we are trying this case in the very hotbed of the Nazi Organisation with which some of defence counsel were identified.

THE PRESIDENT: I think, Mr. Justice Jackson, that that is sufficient. If you tell the Tribunal that there was no such agreement, the Tribunal will, of course, accept that.

MR. JUSTICE JACKSON: I know of nothing of that character, relating to witnesses, that does apply.

We find it very difficult to know just the meaning of the ruling which the Court has just announced. Count One of the Indictment is a conspiracy count, covering the entire substantive part of the Indictment. There are problems, of course, of overlapping, which I had supposed to have been worked out between the prosecutors until this morning. It is impossible, in trying a conspiracy case, to keep from mentioning the fact that the act, which was the object of the conspiracy, was performed. In fact, that is a part of the evidence of the conspiracy.

I know I do not need to enlarge upon the wide scope of evidence in a conspiracy case. I think, perhaps, the best thing to do is to swear the witness, and that the other prosecutors, if they feel their field is being trespassed upon, or the judges, if they feel that we are overlapping, raise the objection specifically; because I don’t know how we can separate, particularly on a moment’s notice, Count One from the other counts.

We have tried our best to work out an arrangement that would be fair, as between ourselves and the other prosecutors, but we find it impossible always to please everybody.

With the greatest deference to the ruling of the Court, I would like to suggest that we proceed. I don’t know just what the bounds of the ruling might be, but I think the only way we can find out is to proceed, and have specific objections to the specific things, which anyone feels have been transgressed; and in doing that, I want to say that we do it with the greatest respect to the ruling, but that we may find ourselves in conflict with it, because of the difficulty of any boundary on the subject.

THE PRESIDENT: Doctor Stahmer?

DR. STAHMER (counsel for defendant Goering): Mr. President, I must return to the matter, raised by Doctor Nelte, namely, his assertion that before the beginning of the trial the defence and the prosecution reached an agreement to the effect that the next day’s programme should always be made known to the defence on the day before. Such an agreement has actually been reached, and I cannot understand that the prosecution should not have been informed of it. In a conference we considered this possibility, and were given assurances by Doctor Kempner, our liaison man, that it would be reached. I should further like to point out the following:

The prosecution has stated that, for security reasons, the defence could not be furnished with the names of witnesses to be summoned during next day’s proceedings. The Press, however, received, as early as yesterday, information concerning the witnesses to be heard today. We were informed of this, this morning, by representatives of the Press and, as far as I know, a statement to this effect appeared in to- day’s papers. I cannot understand why such information should be withheld from us because, for security reasons, such statements are not to be made. It seems to me that this amounts to an unjustified distrust of the discretion of the defence. It is, furthermore, incorrect that we are now being furnished with documents in good time. Documents still reach us belatedly. This morning, for instance, a document to be dealt with to-day was put on our desks and, moreover, the language it was written in could not be understood by most of the defence counsel since they do not know English.

As I have already submitted this objection in writing, I should be glad if the Tribunal will decide this matter as soon as it may.

THE PRESIDENT: Have you finished?

DR. STAHMER: Yes.

MR. JUSTICE JACKSON: It is quite correct that the name of the witness who is to be used to-day was given to the Press. The question of our policy as to giving witnesses’ names was submitted to me last night after the Court recessed, because we had not been using witnesses heretofore; and I then stated to Colonel Storey that witnesses’ names must not be given to the defence counsel for security reasons.

He communicated that, I believe, to Doctor Dix. I found that later it had been given to the Press. They, of course, have had adequate information therefore as to this witness. However, I am speaking about the policy. We cannot be under an obligation to inform those counsel of the names of witnesses who will be called. who are here in Nuremberg, but not in prison; the situation does not permit of that. Neither can we furnish transcripts of testimony or that sort of thing of witnesses in advance.

Now we want to give the defence counsel everything that in the fair conduct of the trial they ought to have. They are now receiving much more than any citizen of the United States gets on trial in the courts of the United States, in some respects, as to advance information and copies and help and service, and I do think that to ask us to disclose to them in advance either the names or substance of testimony- oftentimes the substance would disclose the witness-would not be proper. It was stated yesterday that we would take up a witness to-day.

THE PRESIDENT: We have already heard two counsel on behalf of the defence. Have you anything to add which is different to what they have said?

DR. DIX (Counsel for defendant Schacht): Yes. I believe that I can elucidate a misunderstanding and contribute to the simplification of the whole problem. May I address the Court?

I believe that there is a misunderstanding here. I do not know what was discussed before I attended the Court, but the situation so far has been the following:-

No agreement was reached between the prosecution and the defence counsel. There is, as your Lordship knows, only an agreement regarding documents, which is known to the Court and which I therefore need not repeat. As far as witnesses are concerned, I believe that I may presuppose that we are all of one mind in finding justified the wish of the defence to know beforehand what witnesses will appear.

The high Tribunal must decide to what extent this wish, which is in itself justified, cannot be granted for security reasons. That is a matter which lies outside the determination of the defence. But I believe that I understood Mr. Justice Jackson correctly in thinking that if the Press is being informed what witnesses will appear the next day, it is a matter of course that the same communication should be made to defence counsel, but that it was only an unhappy concatenation of circumstances, an incident that can always happen, and which can and will be obviated in future by mutual understanding and good will.

As I said, I do not know what was agreed upon before I was present here. I cannot therefore contradict my colleague, Dr. Stahmer, in this matter. I think it possible, however, that the misunderstanding arose because the readiness of the Court to have documents submitted and notice given to us forty-eight hours ahead of time, and even the film shown to us beforehand, led my colleagues to the conclusion, which I consider justified, that all evidence was to be submitted to them. We do not, of course, expect to be informed of the contents of the witness’ account, because the contents evolve during the session and cannot be determined prior to it.

After this elucidation I should like to express the wish that we be informed in future what witness is to be called, and to add a further wish, that security considerations be guided by the certainty that the counsellors of the defence are reliable, determined and capable of assisting the Court in passing judgement by maintaining the discipline of proceedings. In consequence, the cases in which the security officer believes that he should not communicate the name of the witness beforehand, should be reduced to an absolute minimum.

THE PRESIDENT: The Tribunal will consider the submissions which have been made to them on behalf of defence counsel with reference to what shall or what shall not be communicated to them. With reference to the witness whom the United States desire to call, they will now be permitted to call him. With reference to what I said about confining his evidence to Count One, the Tribunal thinks that the best course would be for the other prosecutors to have the opportunity now to ask any questions which they think right, and that they may have the opportunity, if they wish, of calling the witness later upon their own counts.

As to cross-examination by the defendants’ counsel, that will be allowed to them in the most convenient way possible, so that if they wish to have an opportunity of communicating with their clients before they cross-examine, they may have the opportunity of doing so. Now we will continue.

COLONEL AMEN: May we have General Lahousen brought before the Tribunal?

THE PRESIDENT: Will you stand in front of the microphone there so that you can be heard?

Q. Where were you born?

A. I was born in Vienna.

Q. On what date?

A. On 25th of October, 1897.

Q. What has been your occupation?

A. I was a professional soldier.

Q. Where were you trained?

A. I was trained in Austria, in the Military Academy in Wiener Neustadt.

Q. Were you immediately commissioned as an officer?

A. In 1915 I was commissioned a lieutenant in the infantry.

Q. Did you serve in the first World War?

A. Yes, as first and second lieutenant in the infantry.

Q. Were you promoted from time to time thereafter?

A. Yes, I was promoted according to the normal regulations valid in Austria at the time.

Q. By 1930 what rank had you attained?

A. In 1930 I was captain.

Q. And commencing in 1930 did you take any additional training?

A. In 1930 I entered the Austrian War School, which corresponds to the Military Academy in the German Army. I received the education of an officer of the General Staff.

Q. How long did this training last?

A. This training lasted three years.

Q. In 1933 to what regular army unit were you assigned?

A. In 1933 I was serving in the Second Austrian Division, the so-called Vienna Division.

Q. What type of work did you do there?

A. I was an Intelligence officer; that branch of the service for which I was destined already during my training with the General Staff.

Q. Did you then receive a further promotion?

A. I was promoted in accordance with the regulations valid in Austria, and roughly at the end of 1933 I became a Major. About 1935 or the beginning of 1936 I was transferred into the General. Staff – and, in June or at any rate, in the summer of 1936, I became lieutenant Colonel of the Austrian General Staff.

Q. And were you assigned to the intelligence division at or about that time?

A. I entered the Austrian Intelligence Service; that corresponds technically to what is called in the German Army “Abwehr.” I must add that a “Nachrichten Abteilung” was only added to the Austrian Army about this time, i.e., 1936; before that there was no such department. Because the plan was to re-establish, within the framework of the Austrian Federal Army, the military intelligence service, which had ceased to exist after the collapse of the Austrian- Hungarian Empire, I was trained for it in order to organise the “Nachrichtenabteilung” which had by then come into existence.

Q. After being assigned to the Intelligence Division, how were your activities principally directed?

A. My responsible chief, or rather the responsible chief at that time, was Colonel of the General Staff, Boehme; the section chief to whom I was subordinate, was the chief of the Intelligence Service, that is to say, the man responsible to me or rather the one to whom I was responsible, from whom I received my orders and instructions; later on it was the Chief of the Austrian General Staff.

THE PRESIDENT: Can’t you shorten this, Colonel Amen? We really needn’t have all this detail.

COLONEL AMEN: Very good, Sir. It is, however, I think important for the Tribunal to understand more of this information than they ordinarily would by virtue of the fact that he was transferred subsequently to a corresponding position in the German Army, a point which I did want the Tribunal to appreciate.

BY COLONEL AMEN:

Q. Now, will you state to the Tribunal what your principal activities were after being assigned to the Intelligence Division? What information were you interested in and seeking to obtain?

A. If I understand your question correctly, I was a member of the Austrian Intelligence Service, that is to say, in the Austrian Intelligence Service and not in the German so- called “Abwehr.”

Q. After the Anschluss, what position did you assume?

A. After the Anschluss I was automatically taken into the High Command of the German Armed Forces, and did the same job there. My chief there was Admiral Canaris.

Q. And what was the position of Admiral Canaris?

A. Canaris was, at that time, Chief of the Bureau of the “Ausland-Abwehr,” that is to say, of the Intelligence.

Q. And will you explain briefly the responsibility of the principal departments of the Abwehr under Admiral Canaris?

A. When, in 1938, I entered the Ausland-Abwehr, after the “Anschluss,” there were three Abwehr Divisions, and the division then called Ausland-Abwehr at least, I was acquainted with this Organisation. How it was before, I cannot say exactly.

Q. And what were your duties?

A. First of all, I was automatically placed in “Abwehr” Division 1. That is the section which was concerned with collecting information on secret communications, as it was also called. At the time I worked under the Chief of Section, Colonel-General Pieckenbrock, as well as Canaris, whom I knew from my Austrian past.

Q. Admiral Canaris was your immediate superior?

A. Admiral Canaris was my immediate superior.

Q. From time to time did you act as his personal representative?

A. Yes, in all cases and on all occasions when his immediate representative – that is, Colonel Pieckenbrock-was not present, or when Canaris, for one reason or another, considered it necessary or advisable for me to appear as his representative.

Q. And in this capacity did you have any contact with Field -Marshal Keitel?

A. Yes.

Q. Did you also have contact with Jodl

A. To a much lesser degree, but occasionally …

Q. And did you occasionally attend conferences at which Herr Hitler was also present?

A. Yes, I attended a few of the sessions or meetings at which Hitler was present and which he conducted.

Q. Will you tell the Tribunal whether the leaders of the Abwehr were in sympathy with Hitler’s war-programme?

A. I have to make it clear in this connection that we chiefs, at that time, in the Intelligence Department were deeply influenced and captivated by the personality of Canaris, his inner orientation, which was perfectly clear and unequivocal to a small group of us.

Q. And was there a particular group or groups in the Abwehr who worked against the Nazis?

A. Within the Ausland-Abwehr Office there were two groups which, as far as their intentions and actions were concerned, were closely connected, but which, nevertheless, must be strictly kept apart.

Q. And what were those two groups?

A. Before I answer this question, I must briefly discuss the personality of Canaris, who was the centre and focus of this group.

Q. Please make it as brief as you can.

A. Canaris was a personality of pure intellect. We relied on his inner, very unique and complicated nature, for this reason. He hated violence and hated and abominated therefore Hitler, his system, and particularly his methods. Canaris was, in whatever way you may look upon him, a human being.

Q. Now, will you refer back to the two groups of which you spoke and tell me about each of those two groups and their respective memberships?

A. One might characterise one of the groups as Canaris’ circle. It included, in the “Ausland-Abwehr,” and particularly amongst its leaders, Canaris himself as its spiritual leader; General Oster, Chief of the Central Division (the Fuehrer of the Abwehr) and my predecessor, Lieutenant-Colonel Grosskurt, who had joined the circle along with Canaris in Vienna as early as 1938. Further, the Chief of Abwehr Section 1, Colonel Pieckenbrock, who was a close friend of Canaris; and Pieckenbrock’s successor, Colonel Hansen, who was executed on 28th June; then there was my successor, Colonel Freytag-Lorrindhofen, who was executed, or rather, who committed suicide on 26th July, 1944, before his arrest; also, somewhat differentiated, the Chief of Abwehr Section III, Colonel Bentivigny. There were, too, various people in all these sections; most of them were executed or imprisoned in connection with the events of 20th July, 1944.

In this connection I have to mention a person who did not belong to the said groups, but who knew about certain actions designed to prevent orders or foil the execution of orders for murder and other atrocities: namely, Admiral Burckner who was chief of the Auslandsabteilung at that time. These were essentially the leaders of the group called the Canaris-circle.

The second and smaller group was attached to General Oster, who was the spiritual leader of the persons in the office of the Ausland-Abwehr who, as early as 1938 – I could recognise this clearly by 1939-1940 and later on – were actively concerned with schemes and plans designed to do away by force with Hitler, the instigator of this catastrophe.

Q. What was the purpose of the group to which you belonged; that is, Canaris’ inner circle?

A. As regards the political motives or aims, I was not informed. I can only reiterate the train of thought best known to me, having been one of Canaris’ most intimate confidants, which determined his basic attitude. This, his inner attitude, which determined the actions not only of myself but of the other people whom I mentioned, was as follows:-

We did not succeed in preventing this war of aggression. The war signified the annihilation of Germany and of ourselves and, as such, would be a misfortune and a catastrophe of the greatest extent. However, a misfortune even greater than this catastrophe would be a triumph of this system. To prevent this was the ultimate aim and purpose of our struggle.

What I have just said was often expressed by Canaris in the group of which I am speaking.

Q. Now, did this group of which you and Canaris were members meet frequently?

A. I must explain that this group or circle was not to be regarded as an organisation in the technical sense, or as a sort of conspirators’ club. That would have been completely contradictory to Canaris’ nature. It was more of a spiritual organisation of people of the same convictions, who were perspicacious and well informed. Their official functions provided them with the necessary knowledge. These people understood each other and acted jointly, while maintaining their complete individuality.

This is the reason for the differentiation of which I spoke in the beginning. Different demands were made on each individual. Canaris approached at any one time the person whose character he knew from his personal knowledge to be the fittest to carry out a certain task.

Q. Did you have conversations at those official meetings, at which Canaris expressed his views with respect to the use of force in Poland, for example?

A. These and similar methods were repeatedly, I may say, discussed in our circle. They were repudiated as a matter of course.

Q. Do you recall what Canaris said about the Polish war at the time of its commencement?

A. I very well recall the hour at which Canaris entered, completely broken, and informed us of the fact that the situation had become serious after all, although it had appeared before as if the matter might still be postponed. He told us then: “This is the end.”

Q. Did you have conversations with Canaris and the other members of your group with respect to eliminating Nazis from your staff?

A. While I was still in Vienna, before entering service in the O.K.W., I received instructions from Canaris not to admit to his office in Berlin any National Socialists. I was also instructed, whenever possible, not to admit any Party members or officers sympathising with the Party to high positions in my section. Thus the actual organisation –

Q. Did Canaris keep a diary?

A. Yes, Canaris kept a diary – he had done so even before the beginning of the war – a diary to which I personally contributed many portions.

Q. Was it a part of your duties to make entries in that diary?

A. No, it was not a part of my immediate duties, but it just turned out as a matter of course that, as regards those conferences which I attended as Canaris’ representative, or at which I was present, I recorded such conferences in his diary.

Q. And did you keep copies of the entries which you made in Canaris’ diary?

A. Yes, I kept copies, with Canaris’ knowledge and approbation.

Q. I have you the original of some of those copies with you here to-day?

A .I have not got them on my person, but they are available.

Q. And you have refreshed your recollection in reference to those entries

A. Yes.

Q. What was the purpose of Canaris in keeping such a diary

A. If I answer this question I must, in the interests of truth, repeat the words that Canaris addressed to me on this subject. Others know also what I am saying now.

The purpose of his diary – and it is Canaris’ voice speaking now through me – the purpose of his diary was to show the German people and the world, once and for all, how those who were guiding the fate of the people at this time acted.

Q. Now, do you recall attending conferences with Canaris at the Fuehrer’s headquarters just prior to the fall of Warsaw?

A. I and Canaris took part in a conference which did not take place in the Fuehrer’s headquarters, but in the so- called Fuehrer’s train, shortly before the fall of Warsaw.

Q. And having refreshed your recollection from reference to the entries in Canaris’ diary, can you tell the Tribunal the date of those conferences?

A. According to the notes and documents at my disposal, it was on 12th September, 1939.

Q. Did each of these conferences take place on the same day?

A. The conferences in the Fuehrer’s train took place on 12th September, 1939.

Q. And was there more than one conference on that day? Were they split into several conferences?

A. I cannot call them sessions; they were discussions, conversations, of shorter or longer duration, but not actually conferences.

Q. And who was present on this occasion?

A. Present, independent of time and location, were the following: Foreign Minister von Ribbentrop; Keitel, the Chief of the O.K.W.; the president of the “Wehrmacht- Fuehrungstab” at that time, Jodl; Canaris; and myself.

Q. Do you see Ribbentrop in this court room?

A. Yes.

Q. Will you indicate for the record where he is sitting?

A. Over there – (indicating) – in the first row, third from the left.

Q. Do you also see Keitel in the court room

A. Yes; he is next to Ribbentrop.

Q. Do you also see Jodl in the court room?

A. Yes; he is in the second row, next to Herr von Papen.

Q. Now, to the best of your knowledge and recollection, will you please explain, in as much detail as possible, to the Tribunal, exactly what was said and what took place at this conference in the Fuehrer’s train?

A. First of all, Canaris had a short talk with Ribbentrop, in which von Ribbentrop explained political aims in general, with regard to the Polish regions, and in particular with regard to the Ukrainian question. Later the Chief of the O.K.W. took up the Ukrainian question in subsequent discussions which took place in his private working carriage. These are recorded in the notes which I took down immediately, on Canaris’ commission. While we were still in the train of the Chief of the O.K.W., Canaris expressed serious scruples regarding the bombardment of Warsaw, stressing the devastating repercussions on foreign policy of such a bombardment. The Chief of the O.K.W. at that time, Keitel, answered that these measures had been laid down directly by the Fuehrer and Goering, and that he, Keitel, had had no influence on these decisions. He spoke these words – I can repeat them only after having read my notes – the Fuehrer and Goering telephoned frequently back and forth; sometimes I heard something of what was said, but not always.

Secondly, Canaris gave an earnest warning against the measures which he knew about, i.e., the projected shooting and extermination which were to be directed particularly against the Polish intelligentsia, the nobility, the clergy, as well as all elements that could be regarded as embodying the national resistance movement. Canaris said at that time – I am quoting more or less verbatim – “the world will at some time make the armed forces under whose eyes these events occurred also responsible for these events.”

The then Chief of the O.K.W. replied – and what I am now going to say is based on my notes, which I looked through a few days ago – that these things had been determined by the Fuehrer, and that the Fuehrer, the Commander in Chief of the Army, had made it known that, should the armed forces refuse to have any part in these things or should they not agree with them, they would have to accept the fact that the S.S., the S.I.P.O. and such organisations would be simultaneously employed to carry out these very measures. Thus, at the side of each military commander, a corresponding civilian official would be appointed. This, in outline, was the subject of the discussion dealing with extermination measures and the policy of shooting.

Q. Was anything said about a so-called political house- cleaning?

A. Yes, the then Chief of the O.K.W. used an expression in this connection which was certainly derived from Hitler, and which characterised these measures “political housecleaning.” This expression remains very clearly in my recollection without the aid of my notes.

Q. In order that the record may be perfectly clear, exactly what measures did Keitel say had already been agreed upon?

A. According to the then Chief of the O.K.W., the bombardment of Warsaw and the shooting of those categories of people whom I characterised before, had been agreed upon already.

Q. And what were they?

A. Foremost of all, the Polish intelligentsia, the nobility, the clergy, and, of course, the Jews.

Q. What, if anything, was said about possible co-operation with a Ukrainian group?

A. Canaris was ordered by the then Chief of the O.K.W., who stated that he was transmitting a directive which he had apparently received from Ribbentrop in connection with the political plans of the Foreign Minister, to instigate a resistance movement in the Galician part of the Ukraine, which should have as its goal the extermination of Jews and Poles.

Q. At what point did Hitler and Jodl enter this meeting?

A. Hitler and Jodl entered either after what I have just described took place, or towards the conclusion of this discussion, and Canaris had already begun his report on the situation in the West: that is to say, on the news that had come in in the meantime, regarding the attitude of the French army at the West Wall.

Q. And what further discussions took place then?

A. After this discussion in the private working carriage of the Chief of the O.K.W., Canaris left the coach and had a short talk with Ribbentrop, who, returning to the theme of the Ukraine, told him once more that the uprising or the resistance movement should be so arranged that all farms and dwellings of the Poles should go up in flames, and all Jews be killed.

Q. Who said that?

A. The Foreign Minister at that time, Ribbentrop, said this to Canaris. I was standing next to him.

Q. Is there any slightest doubt in your mind about that?

A. No. I have not the slightest doubt about that. I remember with particular clarity the somewhat new formulation that “all farms and dwellings should go up in flames” because previously only terms like “liquidation” and “killing” had been used.

Q. Was there any note in Canaris’ diary which helped to refresh your recollection on that point also?

A. No.

Q. What, if anything, was said on the subject of France?

A. On the subject of France a discussion took place in the carriage of the Chief of the O.K.W. Canaris explained the situation in the West according to reports he had received from the “Abwehr” intelligence service. Canaris described the situation by saying that in his opinion a great attack was being prepared by the French in the sector of Saarbrucken. Hitler, who had entered the room in the meantime, intervened, took charge of the discussion and rejected in a lively manner the opinion which Canaris had just expressed, putting forward arguments which, looking back now, I must recognise as factually correct.

Q. Do you recall whether, in the course of this conference, Ribbentrop said anything about the Jews?

A. During the conversation, which was taking place in the private conference coach of the Chief of the O.K.W., Ribbentrop was not present.

Q. Do you recall whether at any time in the course of the conferences Ribbentrop said anything about the Jews?

A. In this discussion, I repeat – the one that took place in the coach – no.

Q. For purposes of keeping the record straight, whenever you have referred to the Chief of the O.K.W., you were referring to Keitel?

A. Yes.

Q. Was the Wehrmacht ever asked to furnish any resistance for the Polish campaign?

A. Yes.

Q. Did that undertaking have any special name?

A. As it is recorded in the diary of my section, the name of this undertaking that took place just before the Polish campaign, was given the name “Himmler.”

Q. Will you explain to the Tribunal the nature of the assistance required?

A. The matter in which I am now giving testimony is one of the most mysterious actions which took place in the atmosphere of the Abwehr office. Sometime, I believe it was the middle of August – the precise date can be found in the corresponding entry of the diary – Abwehr Section I, as well as my section, Abwehr Section II, were charged with the job of providing or keeping in readiness Polish uniforms and equipment, as well as identification cards, and so on, for the undertaking “Himmler”. This request, according to an entry in my diary made by my aide-de-camp, was received by Canaris from the Wehrmacht Fuehrungstab or from the “Landesverteidigung” – National Defence.

Q. Do you know whence this request originated?

A. Whence the request originated I cannot say. I can only repeat how it reached us in the form of an order. It was, to be sure, an order on which we, the chiefs of sections concerned, already had some misgivings without knowing what, in the last analysis, it was about. The name Himmler, however, was eloquent enough. In the pertinent entries of the diary, expression is given to the fact that I asked the question why Mr. Himmler was to receive uniforms from us.

Q. To whom was the Polish material to be furnished by the Abwehr?

A. These articles of equipment had to be kept in readiness, and one day some man from the S.S. or the S.D. – the name is given in the official war-diary of the department – fetched them.

Q. At what time was the Abwehr informed as to how this Polish material was to be used?

A. The real purpose, which we do not know in its details even to-day, was concealed from us, we did not learn it, though at the time we had a very understandable suspicion that something crooked was afoot, particularly because of the name of the undertaking.

Q. Did you subsequently find out from Canaris what in fact had happened?

A. The actual course of events was the following: When the first war-bulletin appeared, which spoke of the attack of Polish units on German territory, Pieckenbrock, who had the report in his hand, and read it, observed that now we knew what our uniforms had been needed for. the same day or a few days later, I cannot say exactly, Canaris informed us that people from concentration camps disguised in these uniforms had been ordered to make a military attack on the radio station at Gleiwitz. I cannot recall whether any other locality was mentioned. Although we were greatly interested, particularly General Oster, to learn details of this action, that is, where it had occurred and what had happened in detail – as a matter of fact we could well imagine it – we did not know for certain, and I cannot even to-day say exactly what happened.

Q. Did you ever find out what happened to the men from the concentration camps that wore the Polish uniforms and created the incident?

A. It is strange, this matter held my interest ever since, so much so that even after the capitulation, I spoke about these matters with an S.S. Hauptsturmfuehrer who was confined in the same hospital as I was, and I asked him for details on what had taken place. The man – his name was Burckel – told me, “It is peculiar, but even we in our circles only found out about these matters much, much later, and then what we did find out was only by implication. So far as I know,” he said, “all members of the S.D. who took part in that action were presumably put out of the way; that is to say, were killed.” That is the last I heard of this matter.

Q. Do you recall attending a meeting in 1940 at which the name of Weygand was under discussion?

A. Yes.

Q. Do you happen to recall the particular month in which this discussion took place?

A. The discussion took place in the winter of 1940, either November or December, if my memory does not deceive me. I have retained the precise date in my personal notes; in accordance with the wish and desire of Canaris.

Q. To the best of your knowledge and recollection, who was present?

A. At that time, we usually met at the conference, i.e., the three chiefs of sections and the Chief of the Ausland Section, the former Admiral Burckner.

Q. What were you told at this meeting by Canaris?

A. In this conversation Canaris told us that for a considerable time Keitel had put pressure on him to execute an action leading to the elimination of the French Marshal Weygand; and that I – that is to say, my section – would be charged with the execution of this task, as a matter of course.

Q. When you say “elimination”, what do you mean?

A. Killing.

Q. What was Weygand doing at this time?

A. Weygand was, so far as I recall, at that time in North Africa.

Q. What was the reason given for attempting to kill Weygand?

A. The reason given was the fear that the unbeaten part of the French Army in North Africa might find in Weygand a point of crystallisation for resistance. That, of course, is only the main outline of what I still remember to-day. It may be that there were other contributing factors.

Q. After you were so informed by Canaris, what else was said at this meeting?

A. This request, which was put to the military Abwehr openly and without restraint by a representative of the Armed Forces, was repudiated strongly and indignantly by all those present. I, myself, as the person most involved, since MY department was charged with the action, stated before all present that I had no intention of executing this order. My section and my officers are fighters but they are not a murderers’ organisation or murderers.

Q. What then did Canaris say?

A. Canaris said: “Calm down. We’ll talk it over later on.”

Q. Did you then talk it over later with Canaris?

A. After the other gentlemen had left the room, I spoke alone with Canaris. Canaris told me immediately, “It is obvious that this order will not only not be carried out, but it will not even be communicated any further;” and so it happened.

Q: Were you subsequently questioned as to whether you had carried out this order?

A. At an audience that Canaris had with Keitel, at which I was present, I was addressed by the then Chief of the O.K.W., Keitel, on this subject. He asked me what had happened or what had been undertaken so far with regard to this matter. The date of this event is recorded in my notes, with Canaris’ knowledge and with his approval.

Q. What reply did you make to Keitel?

A. Naturally I cannot recall the precise words I spoke, but one thing is certain; I certainly did not answer that I had no intention of carrying out this order. I could not do this, and did not do it; otherwise, I would not be sitting here to-day. Probably, as in many similar cases, I gave the answer that it was very difficult but whatever was possible would be done, or something of that sort. Naturally, I cannot recall my precise words.

Q. Incidentally, are you the only one of this intimate Canaris group who is still alive to-day?

A. I believe that I am at least one of the very few. Possibly Pieckenbrock is still alive; perhaps, Bentivigny, who, however, did not belong to the inner circle. Most of the others fell as a result of the events of July 20th.

COLONEL AMEN: I have another subject to take up now. I don’t know if you want me to start in before recess.

THE PRESIDENT: We will continue until 12.45.

(Further examination of the witness by Colonel Amen.)

Q. In 1941 did you attend a conference at which General Reinecke was present?

A. Yes.

Q. Who was General Reinecke?

A. General Reinecke was at that time Chief of the General Army Office; that is to say, i.e., a member-office of the O.K.W.

Q. Do you recall the approximate date of that meeting?

A. It was roughly in the summer of 1941, shortly after the beginning of the Russian campaign; possibly in July.

Q. To the best of your knowledge and recollection, will you state exactly who was present at that conference?

A. At this conference, which is also recorded in the notes taken for Canaris, in which I participated as his representative, the following were present: General Reinecke as the presiding officer, ObergruppenFuehrer Muller, of the R.S.H.A., General Breuer representing the office in charge of prisoners of war, and I, as a representative of Canaris, i.e., “Ausland-Abwehr”.

Q. Will you explain who Muller was and why he was at this meeting?

A. Muller was a Division Chief in the main office of Reichsecurity (R.S.H.A.) and took part in the session because he was responsible for the measures regarding the treatment of the Russian prisoners; i.e., the executions.

Q. Will you explain who Colonel Breuer was and why he was there?

A. Colonel Breuer was in charge of matters relating to prisoners of war. I do not know in which precise front Organisation detachment he worked at the time. He took care of questions regarding prisoners of war within the O.K.W.

Q. What was the purpose of this conference?

A. The purpose of this conference was to examine the orders received so far, regarding the treatment of prisoners of war, and also to comment on, explain and give reasonable grounds for these commands.

Q. Did you learn from the conversation at this conference what the substance of these orders under discussion was?

A. Its content concerned itself essentially with two groups of measures that were to be taken. First of all was the killing of Russian commissars. Second was the killing of all those elements among the Russian prisoners of war who, according to a special segregation by the S.D., could be identified as Bolshevists or as active representatives of the Bolshevistic attitude toward life.

Q. Did you also learn from the conversation what the basis for these orders were?

A. The basis for these orders was explained by General Reinecke in its essential features as this: That the war between Germany and Russia was not a war between two States or two armies but between two attitudes toward the world, namely, the National Socialist and the Bolshevistic. The Red Army soldier was not to be looked upon as a soldier in the ordinary sense of the word, such as our Western opponents, but as an ideological enemy. That is, as an enemy-to-the- death of National Socialism, and he was to be treated accordingly.

Q. Did Canaris tell you why he had selected you to go to this conference?

A. Canaris gave me two or perhaps three reasons for ordering me to this session, although he was himself present in Berlin. First, he wanted to avoid a personal contact with Reinecke, whom he regarded as the prototype of the always willing National Socialist Generals and whom he personally considered very antipathetic. Secondly, he told me my guiding principle was to be to attempt through factual argument – that is to say, through appeals to reason – to oppose this brutal and senseless order, or at least to mitigate its evil effects as far as that might be possible. He selected me for tactical reasons also since, as department chief, he could by no means be as outspoken as I, who, thanks to my subordinate position, could use much stronger language.

Thirdly, he was well acquainted with my personal attitude, an attitude that I manifested, wherever practical, in my many trips to the front where I saw mistreatment of prisoners of war. This fact is also clearly recorded in my notes.

Q. Did Canaris and the other members of your group have a particular name for Reinecke?

A. Not only in our group but in other places, he was called the “small” or the “other Keitel”.

Q. Prior to your going to this conference, did Canaris make any other comment on those orders?

A. Even at the time when these orders were given, Canaris said to our circle – and when I say our circle I mean the section chiefs – that he had put himself in a position of sharp opposition to this command and protested through Burckner. I cannot say now whether that was done in writing or orally, whether that was communicated to Keitel in writing or orally, I don’t know, but, at any rate, Burckner communicated it to Keitel; probably by both media.

Q. When you say “protested through Burckner”, what do you mean?

A. When I say Burckner, I mean the group or perhaps even a representative in his office.

Q. Will you repeat that?

A. This protest or this counter-argument, and the question regarding the treatment of the Russian prisoners of war, was communicated by Canaris via the Foreign Office, Ausland-Amt, and, through Burckner, communicated further. The Ausland office had a section that dealt with questions of International Law. The expert in that section was Count Moltke who, like some other men, belonged to Oster’s inner circle. After 20th July he was executed.

THE PRESIDENT: Would that be a convenient time to break off?

COLONEL AMEN: Yes, sir.

THE PRESIDENT: Until 2.00 o’clock.

(A recess was taken until 1400 hours.)

THE PRESIDENT: Yes, Colonel Amen.

(Erwin Lahousen resumed the stand and testified further as follows: )

BY COLONEL AMEN:

Q. Prior to the luncheon recess you were testifying about a conference in 1941 with Reinecke and others. Prior to that conference did Canaris tell you what kind of appeal to make to those present at the meeting?

A. Before the discussion Canaris said, as I have already stated, that I should use arguments in order to ruin the case or to weaken its effects, but that otherwise I should not take it into my head to use arguments of a humanitarian nature, lest I should so make a fool of myself.

Q. And now will you explain to the Tribunal, to the best of your recollection, exactly what happened and what was said in the course of that conference?

A. The discussion was opened by General Reinecke, and he explained these orders in the manner in which I described them before the recess. He said that these measures were necessary, and that it was particularly necessary that this idea should also be made clear to the Wehrmacht, and above all to the officers corps, as they apparently still had ideas which belonged to the Ice Age and not to the present age of National Socialism.

Q. What views did you present at this conference?

A. According to my instructions from the Amt Ausland-Abwehr and as representative of Canaris, in the main I pointed out, first of all, the most unfavourable effect of such measures on the troops, namely, on the Front troops; that they would never understand such orders, particularly not the simple soldier. Besides, I said, we had reports that the executions were sometimes carried out before their eyes.

Secondly, I brought forward the objections of my office in regard to activities which referred to the office itself, the effect on the enemy of these measures which were, practically speaking, the hindering of deserters, to prevent Russians from deserting, who were surrendering without any opposition; and then the great difficulties which the Abwehr Division had in fighting agents, that is, people who for any reasons had voluntarily kept themselves prepared to help the Germans.

Q. In order that this may be clear on the record, because I think there was quite a bit of confusion in the translation, I want to point out one or two of those arguments again. What did you say at this conference about the effect of the execution of these orders on Russian soldiers?

A. I pointed out, first of all, that through these orders some elements among the Russian soldiers who were inclined to surrender were prevented from doing so. Secondly, that people who for any reason had offered their services to the Abwehr would also be prevented by these measures. And that, taking it all together, above all, the effect attained would be the opposite to that which they had desired, and that the resistance of the Russians would be increased to the utmost.

Q. And in order that we may be perfectly clear, what did you say about the effect of the execution of these orders on the German troops?

A. I said that, from several reports which we had from the Front, the effect on the morale and on the discipline of the troops was terrible, devastating.

Q. Was there any discussion about International Law at this conference?

A. No. In this connection there was no discussion of International Law. The manner of selection of the prisoners of war was particularly stressed. It was completely arbitrary, apart from the order in itself, the general order itself.

Q. We will get to that in a moment. Were your views accepted at this conference?

A. My views, which were the views of the Amt Abwehr which I was representing, were opposed in the sharpest possible manner by Muller, who, with the usual cliches, rejected the arguments that I had produced, and who made the sole concession that the executions, in order to consider the feelings of the troops, should not take place in the face of the troops but at a secret place. He also made a few concessions in the question of the selection, which was completely arbitrary, and was just left to the Kommando leaders or their viewpoints.

Q. And subsequent to this conference did you learn whether an order was issued with respect to having these killings take place out of the sight of the German troops?

A. Except for Muller’s promise, which I have just mentioned, I heard no more about it at the time. I found a confirmation of the results of this conference; and the promises then made to me, in an order which was submitted to me only now.

Q. Was there a conversation at this conference about the manner in which these orders for the killings were being executed?

A. Yes; in the course of discussions the entire problem was under discussion as well as the manner in which these orders were carried out by the riot-squads (Einsatzkommandos) of the S.D. – according to my recollection. These S.D. squads were in charge both of singling out of persons in camps, and in assembly centres for prisoners of war, and of carrying out the executions.

Reinecke also discussed measures regarding the treatment of Russian prisoners of war in the camps. Reinecke emphatically accepted the arguments put forth by Muller and not by myself, and voiced his conviction in very sharp words.

Q. Now, will you explain to the Tribunal, from what you learned at this conference, the exact manner in which the sorting of these prisoners was made and in what way it was determined which of the prisoners should be killed?

A. The prisoners were sorted out by commandos of the S.D. and according to peculiar and utterly arbitrary points of view. The leaders of these “Einsatzkommandos” were guided by racial characteristics; particularly if someone was a Jew or Jewish type or could otherwise be classified as racially inferior, he was picked for execution. Other leaders of the S.D. selected people according to their intelligence. Some had views all their own and usually most peculiar, so that I felt compelled to ask Muller, “Tell me, according to what principles does this selection take place? Do you determine it by the height of a person or the size of his shoes?”

Muller was very emphatic in rejecting these and any other objections, and Reinecke adopted rigidly the same point of view, instead of accepting my opinions, i.e., those of the Amt Ausland-Abwehr, which were offered him as a “golden bridge” for his acceptance. That was essentially the contents of the discussion in which I participated.

Q. Did you receive knowledge about the manner in which these orders were executed through official reports?

A. We were currently informed of all happenings by the organs either at the front or active in the camps. Officers of the Abwehr Division were active in these camps, and in this way, and through the normal service channels, we were informed by reports and oral presentation of all these measures and of their effects.

Q. Was the information which you received secret and confidential information not open to others?

A. The information was confidential since almost all which took place in our offices was treated confidentially. De facto, however, it was known to large groups of the Wehrmacht that these things happened in the camps, respectively in due execution.

Q. Now, at this conference did you learn anything from Reinecke with respect to the treatment of Russian prisoners in prison camps?

A. In this discussion the treatment of Russian prisoners in the camps was discussed by Reinecke, and Reinecke was of the opinion that in the camps their treatment must not be the same as the treatment of other Allied prisoners of war, but that here too, according to the principles laid down, discriminating measures must be used. The camp guards should be furnished with whips, and, in case of an attempted escape or other undesirable act, the guards should have the right to resort to arms.

Q. Besides the whips, what other equipment were the Stalag guards given?

A. Those are details which I do not remember for the moment. I can only say what was mentioned in this discussion.

Q. What, if anything, did Reinecke say about the whips?

A. Reinecke said that the guards, i.e., the guard details, should make use of their whips or sticks or whatever other primitive instruments they had.

Q. Now, through official channels did you learn of an order for the branding of Russian prisoners of war?

THE PRESIDENT: Colonel Amen, I think you should refer to them as “Soviet”, not “Russian” prisoners.

COLONEL AMEN: Yes, Your Honour.

BY COLONEL AMEN:

Q. Did you learn of such an order?

A. Yes, in one of the discussions at which most of the previously mentioned divisional chiefs were usually present. At least one of them must have been present.

Q. Do you know whether any protests were made with respect to that order?

A. When the intention was made known of branding these prisoners, a very sharp protest was voiced at once by Canaris, probably through Burckner himself.

Q. What, if anything, did Canaris tell you with regard to this order?

A. Canaris told us that the question had already been expounded in a medical opinion by some sort of physician; that there actually were people low enough to consent to giving a medical opinion on such madness. That was the main topic of this discussion.

Q. What information, if any, did you receive through official channels regarding plans to bring Soviet prisoners back to German territory?

A. Under similar circumstances, that is, during discussions between Canaris and the chiefs of his divisions, as well as in the General Staff talks, I heard that it had been planned to bring some Soviet prisoners into Germany, but that those projects were suddenly abandoned, and I remember that this was by direct order of Hitler. The reason for it was the conditions found in camps in the theatre of operations, where prisoners were crowded together and could not be adequately fed, housed or clothed, resulting in epidemics and cannibalism in these camps.

Q. I am not sure but what we missed some of your previous answer. Will you start again to tell us about the change which was made in these orders?

A. Will you please repeat the question once more?

Q. You referred to a change in the plans to take the Soviet prisoners back to German territory. Is that correct?

A. Yes, they were not brought back into Germany.

Q. And what was the result of this action, namely, of their not being brought back, at the direct order of Hitler?

A. The result was as described just now.

Q. But I want you to repeat it because we lost some of the answer in the interpreting process. Please just repeat it again.

A. The greater number of prisoners of war remained in the theatre of operation, without proper care – care in the sense of PW conventions, with regard to housing, food, medical care; and many of them died on the bare floor. Epidemics broke out and cannibalism – human beings devouring each other – driven by hunger – manifested itself.

Q. Were you personally at the front to observe these conditions?

A. I made several trips with Canaris and I saw some of these things which I have just described with my own eyes. I made notes of my impressions at the time, which were found amongst my papers.

Q. Did you also obtain information as to these matters through official channels of the Abwehr?

A. Yes, I received this information through our own legal department and through the Ausland-Abwehr.

Q. From your official information, to what extent was the Wehrmacht involved in the mistreatment of these prisoners?

A. According to my information, the Wehrmacht was involved in all matters which referred to prisoners of war, except the executions, which were the concern of the “Kommandos” of the S.D. and the Reichssicherheitshauptamt.

Q. But is it not a fact that the prisoner-of-war camps were entirely under the jurisdiction of the Wehrmacht?

A. Yes, prisoners of war were under the jurisdiction of the Supreme Command of the Wehrmacht.

Q. But before they were placed in these camps, the Special Purpose Kommandos of the S.S. were responsible primarily for the executions and the selection of the people to be executed, is that correct?

A. Yes.

Q. Did you receive through official channels information regarding the existence of an order for the killing of British Commandos?

A. Yes.

Q. What action, if any, did Canaris or yourself take with respect to this order?

A. The order, as far as I remember, and even the intention that such an order was to be issued, was discussed in our circle, that is, between Canaris and his section chiefs. We all, of course, absolutely agreed on its rejection. The reasons, apart from the aspects of International Law, being that the Amt Ausland had under its jurisdiction a formation, which was attached to our section, named “Regiment Brandenburg”, which had a task similar to that of the Kommandos. I immediately and most emphatically protested against this order, as the head of the section to which this regiment was attached, and for which I considered myself responsible, and also in view of the retaliation measures which were to be expected as a result.

Q. Did you personally assist in the drafting of these protests?

A. I know that twice a protest was lodged against this order by Canaris, and by Amt Ausland, through Burckner. The first time as soon as the order was issued orally or in writing, and the second time after the first executions had been carried out. I drafted one of these written protests – I do not know whether the first or the second; this very contribution was made in the interest of my section, and the Regiment Brandenburg, whose functions were similar, very similar, to those of the Kommandos.

Q. To whom in the ordinary course did these protests go?

A. The protests were addressed to Canaris’ superior officer, that is to say, to the Chief of the O.K.W.

Q. Who was that?

A. It was Keitel, at that time.

Q. Did these protests in the ordinary course go also to Jodl?

A. That I cannot say, but it is possible.

Q. Now, will you tell the Tribunal what the grounds of the protests which you made were.

A. The basis was, above all, that it was contrary to the interpretation of International Law that soldiers, that is to say, not agents or spies, but soldiers clearly recognisable as such, should be killed after they had been taken prisoner. That was the main point and one also of concern to my section, since it also comprised soldiers who had to carry out such or similar tasks in their capacity as soldiers.

Q. Were there any other grounds urged in protest against these orders?

A. Certainly. Other reasons were also mentioned in accordance with the interests of the different sections affected by these orders. For the Amt Ausland, it was the point of view of International Law. The Abwehr Division III was particularly interested to interrogate soldiers captured in commando raids, rather than see them killed.

Q. Were there any other chiefs of the Amt Abwehr who assisted in the preparation of these protests?

A. As far as I remember to-day, no.

Q. You mentioned Admiral Burckner, did you not?

A. Yes, Burckner belonged to the Amt-Ausland Abwehr, but he wasn’t the chief, but only Section Chief of Amt Ausland.

Q. Now, have you ever heard of an operation known as “Gustav”?

A. The name “Gustav” was applied not to an operation but to an undertaking very like or similar to the one which was demanded for the elimination of Marshal Weygand.

Q. Will you tell the Tribunal what was the meaning of “Gustav”?

A. “Gustav” was the expression used by the Chief of the O.K.W. as a cover name to be used in conversations on the question of General Giraud.

Q. When you say the Chief of the O.K.W., are you referring to Keitel?

A. Yes.

Q. And are you referring to General Giraud of the French Army?

A. Yes, General Giraud of the French Army who, according to my recollection, fled from Koenigstein in 1942.

Q. Do you know of any order issued with respect to General Giraud?

A. Yes.

Q. Who issued such an order?

A. The Chief of the O.K.W., Keitel, gave an order of this kind to Canaris, not in writing but an oral order.

Q. How did you come to know about this order?

A. I knew of this order in the same way as certain other chiefs of the sections, e.g., Chief of Abwehr Section 1, Bentivigny, and a few other officers. We all heard it at a discussion with Canaris.

Q. What was the substance of the order?

A. The essential part of this order was to eliminate Giraud in the same way as Weygand.

Q. When you say “eliminate” what do you mean?

A. I mean the same as in the case of Marshal Weygand, that is, he was to be killed.

Q. Do you recall the approximate date when this order was given by Keitel to Canaris?

A. This order was given to Canaris repeatedly. I cannot say for certain when it was given for the first time as I was not present. It was probably after the flight of Giraud from Koenigstein and it was probably given for the first time prior to the attempt on the life of Heydrich, in Prague. According to my notes, this subject was discussed with me by Keitel in July of the same year. Canaris also being present.

Q. Well now, what did Keitel first say to you personally about this affair?

A. I cannot give the exact text, but the meaning was that he proclaimed the intention of having Giraud killed, similarly as in the case of Weygand, and asked me how the matter was progressing.

Q. And what did you say to him on that occasion?

A. I cannot remember the exact words. I probably gave some evasive answer, or one that would permit time to be gained.

Q. Now, was this question later discussed by you at any time?

A. According to my recollection, this question was once more discussed in August. The exact date can be found in my notes. Canaris telephoned me in my private apartment one evening and said impatiently that Keitel was urging him again about Giraud, and the Section Chiefs were to meet the next day on this question.

The next day that meeting was held and Canaris repeated in this larger circle what he had said to me over the phone the night before, that he was being continually pressed by Keitel that something must at last be done in this matter. Our attitude was the same as in the matter of Weygand. All those present rejected flatly this new demand to carry out a murder. We mentioned our decision to Canaris, who also was of the same opinion, and Canaris thereupon went down to Keitel in order to induce him to leave the Military Abwehr out of all such matters and to request that, as agreed prior to this, such matters should be left to the S.D.

In the meantime, while we were all there, I remember Pieckenbrock spoke, and I remember every word he said. He said it was about time that Keitel was told clearly that he should tell his Herr Hitler, that we, the Military Abwehr, were no murder organisation like the S.D. or the S.S. After a short time, Canaris came back and said it was now quite clear that he had convinced Keitel that we the Military Abwehr, were to be left out of such matters, and further measures were to be left to the S.D.

I must observe here and recall that Canaris had said to me that once this order had been given, the execution must be prevented at any cost. He would take care of that and I was to support him.

Q. I don’t think you have yet told us just who were present at this conference?

A. The three Abwehr Chiefs were present, Colonel Pieckenbrock, whom I have already mentioned, Colonel-General Bentivigny, and I. Probably, also, General Oster, and possibly Burckner, but I cannot remember clearly. In my notes only those three chiefs are mentioned who all strictly rejected the proposal

Q. What was the next occasion when this matter was brought to your attention again?

A. A little later, it must have been September – the exact date has been recorded – Keitel rang me up in my private apartment. He asked me what was happening with “Gustav”. “You know what I mean by ‘Gustav’? ” I said, “Yes, I know.” “How is the matter progressing, I must know, it is very urgent.” I answered, “I have no information on the subject. Canaris has reserved this matter to himself, and Canaris is not here, he is in Paris.” Then came the order from Keitel, or rather, before he gave the order, he put one more question. “You know that the others are to carry out the order.” By the others, he means the S.S. and S.D. respectively. I answered, “Yes, I know.” Then came an order from Keitel to ask Muller immediately how the whole matter was progressing. “I must know it immediately,” he said. I said, “Yes.” I went at once to the office of the Ausland- Abwehr, General Oster, and informed him of what had happened, and asked for his advice as to what was to be done by Canaris and me in this extremely critical and difficult matter. I told him what, as Oster knew nothing yet of what it was expected to do, Canaris so far had told the S.D. concerning the murder of Giraud. General Oster advised me to fly to Paris immediately and to inform Canaris and to warn him. I flew the next day to Paris, and met Canaris at an hotel at dinner in a small circle, which included Admiral Burckner, and told Canaris what had happened. Canaris was horrified and amazed, and for a moment he saw no way out.

During the dinner Canaris asked me in the presence of Burckner and two other officers, i.e., Colonel Rudolph, and another officer whose name I have forgotten, as to the date when Giraud had fled from Koenigstein, and when Abwehr III had been in Prague, and at what time the assassination of Heydrich had taken place. I knew these dates, and told them to him. When he had the three dates, he was instantly relieved, and his face which had been very clouded, relaxed. He was certainly relieved in every way. I must say that in particular – at the three days’ conference of the Abwehr, Heydrich was present. It was a meeting between Amt Abwehr III and the co-ordinating functionaries at the meeting of Prague.

Canaris then based his whole plan on these three dates. His plan was to attempt to show that Heydrich, during the conference, had passed on the order to carry out the action. That is to say, his plan was to use the death of Heydrich to wreck the whole proposition. The next day we flew to Berlin, and Canaris reported to Keitel that the matter was taking its course, and that Canaris had given Heydrich the necessary instructions at the three days’ conference in Prague, and Heydrich had prepared everything, that is, a special purpose action had been started in order to have Giraud murdered, and that the matter was completed and all mapped out.

COLONEL AMEN: There was a mistake I think in the translation a little way back. If you don’t mind will you please go back to where you first referred to Heydrich with Canaris, and repeat the story, because I think that the translation was incorrect. In other words, go back to the point where Canaris suddenly seemed relieved, and started to tell you what the apparent solution might be.

THE WITNESS: All those present saw that Canaris was much relieved, when he heard from me the three dates. His whole plan or his manoeuvring was a purely mental combination, possibly on the basis of his three dates, of which the essential part was the date of the escape of Giraud, and the three-day conference, and typical of his mentality. Had this combination been made prior to Giraud’s escape, it would probably not have stood the test.

THE PRESIDENT: Colonel Amen, what is the reason for the repetition?

COLONEL AMEN: There was a mistake in the record. If it is the wish of the Tribunal, I shall not get him to repeat it any further.

THE PRESIDENT: It seems clear to the Tribunal what was said.

COLONEL AMEN: Very well.

Q. What, if anything, happened next in so far as the affair Giraud was concerned?

A. Nothing more happened. Giraud fled to North Africa, and I only heard that Hitler was very indignant about this escape, and said that the S.D. had failed miserably, that it would be written down in the records of the Hauptquartier. The man who told me this is in the American zone.

Q. Were you acquainted with Colonel Rowehls?

A. Yes.

Q. Who was he?

A. He was an officer. He was a colonel of the Luftwaffe.

Q. What was the work of the special squadron to which he was attached?

A. He had a special squadron for altitude flying, which operated together with the Ausland-Abwehr reconnaissance, in respect to certain States.

Q. Were you ever present when he reported to Canaris?

A. I was present occasionally.

Q. Do you recall what Rowehls told Canaris on those occasions?

A. He reported on the result of the reconnaissance flight and submitted his findings to Abwehr 1 – that is, Amt Abwehr 1. I was responsible for this, and noted the results.

Q. Did you know over what territories these reconnaissance flights had been made?

A. They were taken over Poland and England and in the South- east sphere. I cannot say in any greater detail what territory, and what State in the South-east, but I know that this squadron was stationed in Budapest for such reconnaissance.

Q. Did you personally see some of these photographs?

A. Yes.

Q. Now will you tell the Tribunal the dates when you know that these reconnaissance flights over London and Leningrad were being made?

A. I cannot give the exact dates. I only remember being present at the Abwehr with Canaris, or with Bentivigny who was there sometimes, and Pieckenbrock; that these reconnaissance flights did take place, and that photographic material was furnished, and that the squadron operated from Hungarian airfields. I flew back to Berlin with them at one time. I knew some of the pilots from their activities.

Q. What I am going to ask you about now is the year, or years we will say, when these reconnaissance flights were being made?

A. In a certain part of 1939 before the beginning of the Polish campaign.

Q. Were these flights kept secret?

A. Yes, of course, they were secret.

Q. And why were these flights being made from Hungary, do you know?

A. A Luftwaffe expert would have to give this information.

Q. Have you in your possession a report of the treatment of the Jews in certain territories?

A. Yes, I have a report which probably came to us through Department III, and I made several copies for Canaris and one for myself, regarding incidents in Borisov.

Q. Is that an official report?

A. Yes, and it was a report. The files would show from what office it came to us. In this connection Borisov to me recalls the particular name of an Abwehr officer in connection with this shooting of Jews, an officer whom I knew quite well.

COLONEL AMEN: Now, may it please the Tribunal, I should like to offer in evidence a photostatic copy or copies of the entries made by the witness in every detail, together with a photostatic copy of the report. The originals are here in court, but cannot be lifted out of the box in which they are contained. They are so much damaged by a bomb explosion that if they were to be lifted out of the box, they would be destroyed beyond use, but we have had them photostated, and the photostatic copies are now available. That letter would be exhibit USA 80 – document 3047-PS.

THE PRESIDENT: Do I understand, Colonel Amen, that only such portions of these documents as are read in court will be in evidence?

COLONEL AMEN: Well, these have been used by the witness to refresh his recollection.

THE PRESIDENT: Yes, I know they have.

COLONEL AMEN: And none of them have been read in full in Court, but they may be so read at any time, Sir.

THE PRESIDENT: If you want them to go into evidence as documents, you must read them, of course. Colonel Amen, do you want to use the documents any more than you already used them for the purpose of refreshing the witness’s memory?

COLONEL AMEN: I do not, Sir, except that having used them in this fashion, I now think it is only fair to offer them in evidence for the information and scrutiny of the Tribunal; for my own purpose they have served their ends.

THE PRESIDENT: If the defence wants to see them for the purpose of cross-examination, of course, they may do so.

COLONEL AMEN: Oh, yes, Sir. I have offered it already, Sir, to be exhibit USA 80 – document 3047-PS.

THE PRESIDENT: But otherwise they may not be put in evidence?

COLONEL AMEN: Correct.

THE PRESIDENT: From this damaged paper, it seems to contain a report on the execution of the Jews in Borisov.

COLONEL AMEN: Yes.

THE PRESIDENT: That again will not be in evidence unless you read it.

COLONEL AMEN: Correct, Sir. We will include that in the offer which I just made to you, that, unless what we are offering is desired by the Court, I will not offer it in evidence or read it.

THE PRESIDENT: Very well, the Court does not desire it.

COLONEL AMEN: Very well.

COLONEL AMEN: to witness: As a member of the Abwehr, were you generally well informed on the plan of the German Reich for waging of war?

WITNESS: In so far as the office of the Abwehr was concerned in the preparation for these matters.

Q. Did any intelligence information ever come to your attention which was not available to an ordinary person, or to an ordinary officer in the army?

A. Yes, certainly. It is a function of my office.

Q. And, on the basis of the knowledge which you so obtained, did you in your group come to any decisions as to whether or not the attack on Poland, for example, was an unprovoked act of aggression?

THE PRESIDENT: Well –

WITNESS: Would you be kind enough to repeat the question?

THE PRESIDENT: That is one principal question which this Court has to decide. You cannot produce evidence upon a question which is within the province of the Court to decide.

COLONEL AMEN: Very well, sir. The witness is now available for cross-examination.

THE PRESIDENT: Is it the Soviet prosecutor’s wish to ask any questions of this witness? General Rudenko

DIRECT EXAMINATION BY GENERAL RUDENKO: You have made definite replies to questions and I should like to have certain details. Am I to understand you rightly that the insurgent units of the Ukrainian nationalists were organised under the direction of the German High Command?

A. They were Ukrainian immigrants from Galicia.

Q. And from these immigrants were formed insurgent units (Commandos).

A. Yes, “Commando” perhaps is not quite the right expression. They were people who were brought together in tents and were given a military or a semi-military training.

Q. What was the function of these Commandos?

A. They were organisations of immigrants from the Ukraine Galicia, as I already previously stated, who worked together with the Amt Abwehr.

Q. What were these troops supposed to accomplish?

A. Tasks were assigned to them from time to time at the beginning of the operation by the office in charge of the command. That is, in the case of orders originating from the office to which I belonged, they were determined by the OKW.

Q. What functions did these groups have?

A. These Commandos were to carry out sabotage behind the enemy’s front line.

Q. That is to say, in what territory?

A. In those territories with which Germany had entered into war or, speaking of a concrete case, such as the trial is concerned with, in Poland.

Q. Of course, in Poland. Well, sabotage and what else.

A. Sabotage, wrecking of bridges and other objectives of military importance. The Wehrmacht operational staff determined what was of military importance; details of that activity I have just described, namely, destruction of militarily important objectives or objectives important for a particular operation.

Q. But what about terroristic activities? I am asking you about the terroristic activities of these units.

A. Political tasks were not assigned to them by us, i.e., the Amt Ausland-Abwehr. Political assignments were made by the respective Reich office where it should be said, often as a result of erroneous …

Q. You have misunderstood me. You are speaking about sabotage and I was asking you concerning terroristic acts of these organisations. Do you understand me? Was terror one of their tasks? Let me repeat again; as well as the sabotage acts, were there any terror acts assigned to them?

A. On our part never.

Q. You have told me that from your side there was no question of terrorism. From whose side was there? Who worked on this aspect?

A. Well, that was the whole point at the time. Each one of these military Abwehr units was being asked again and again to use their purely military organisation, which was established to take care of the tasks of the Armed Forces operation, for political or terroristic methods, as is clearly shown by the memorandum on our files concerning the campaign against Poland.

Q. Answering the question of Colonel Amen as to whether the Red Army men were looked upon as an ideological enemy and was subjected to corresponding measures, what do you mean by corresponding measures? I repeat the question. You have said that the Red Army man was looked upon by you, I mean by the German High Command, as an ideological enemy, and was to be subjected to the corresponding measures. What does it mean? What do you mean by “corresponding measures”?

A. By special measures I mean quite clearly all those brutal methods which were actually used and which I have already mentioned, and of which I am convinced there were many more, more than I could possibly have seen in my restricted field and more than were known to me.

Q. You have already told the Tribunal that there were special commandos for the screening of prisoners of war. I understand that they were screened in the following way: into those who were to be killed and the others who were to be interned in camps, is that right?

A. Yes, but these special commandos of the S.D. alone were concerned with the execution of those selected amongst the prisoners of war.

Q. That, of course, makes the chief of the commandos responsible and decisive for the question as to who was to die and who was not to die.

A. Yes, it was this very subject that was under discussion with Reinecke. The fact was mentioned that he was to be the head of one such commando which was to decide who, in view of the order, was to be looked upon as Bolshevistically tainted and who was not.

Q. And the chief of the commando decided upon his own authority, what to do with them.

A. Yes, at least up to the date of the discussion in which I participated upon an order from Canaris, this point, amongst others, was one of the most important ones of this discussion.

Q. You have told us about your protest and the protest of Canaris against these atrocities, killings and so forth. What were the results of these protests?

A. As I have already stated, there were some very modest results, so modest that you can hardly call them results at all. The fact that executions were to take place out of sight of the troops or at least at a 500-metres distance, I can in no way call a result.

Q. What conversation did you have with Muller on this subject, concerning his concessions? You told us when you were asked by General Alexandrov (please who is Alexandrov?) you were questioned by Colonel Rosenblith, a representative of the Soviet Delegation. I am sorry I made a mistake. Perhaps you will remember your communication to Colonel Rosenblith regarding the conversation and the concession that Muller made. I shall ask you to tell us that part again.

A. Yes, correct. Yes, if the name is Alexandrov, though I do not know what Alexandrov meant in this connection.

Q. Alexandrov was a mistake on my part, forget it. I am interested in the question of Muller, concerning the shootings, torturings, and so forth.

A. I had a long conversation with Muller, especially with regard to the selections. I cited, to be concrete, the case of the Crimean Tartars, i.e., the case of Soviet Russian soldiers who, according to their nationality, originated from the Crimea; and cases where, for certain reasons, Mohammedan people were declared Jews, and were then executed. Apart from the brutality of these and all other similar measures, these cases proved the entirely irrational point of view, or points of view, incomprehensible to any normal person, which characterised the handling of the entire matter. To that, among other things, I made reference.

Q. You told us where these measures were carried out.

THE PRESIDENT: He doesn’t hear you, carry on but do a little bit more slowly.

GENERAL RUDENKO: Have you finished your conversation with Muller?

WITNESS: No, I didn’t quite finish, I had many discussions with Muller and all this was a consensus of these discussions. All the subjects about which I have given evidence were discussed first with Muller as the man in authority in at least one sector. As for Reinecke, he then merely decided according to his own ideas, and his own point of view, and contrary to my views or those held by the Amt. I would be grateful if you would tell me what particular points you would like me to explain and I will gladly repeat them.

Q. Your usual topic of discussion was murders, shootings, and so forth, especially shootings. I am interested in all that. What did Muller say about it? How were shootings to take place, especially in relation to your protests?

A. He told me in a rather cynical form that in this case the shootings would take place somewhere else if the troops were too disturbed by them and if, as I described it, “their morale suffers,” etc ., and that was the main meaning of what he said.

Q. That was the result of your protest?

A. Yes, that was the very poor result of our protest, and then still a certain concession …

Q. And one last question. The conditions of the concentration camps where Soviet prisoners were taken and where mass destruction of prisoners was committed; were all these orders the result of directives of the German High Command?

A. In some sort of co-operation with the competent authorities, the Reichs-Sicherheitshauptamt. Corroborating all I have stated, I must point out that at the time, I myself did not read the orders, and that I learned of the work alone on parallel lines, or the collaboration, or the co-ordination in this question only from conversations and primarily from the conversations with Reinecke, and wherever I encountered a representative of the O.K.W. in the persons of Reinecke and of the afore-mentioned Muller.

Q. Excuse me, did you get to know that information in private or unofficial sessions or conversations?

A. It was a strictly official meeting called by General Reinecke. I was not there as “Lahousen”, but as a representative of the Ausland-Abwehr.

Q. The orders which are passed on in these sessions, did they come to you directly from the German High Command?

A. They came from the German High Command and from one of the highest officers of the R.S.H.A., according to what Reinecke said during one of these discussions. I have never seen them with my own eyes, therefore this is all I can state.

Q. But you have heard during these meetings where and when they were discussed?

A. Yes, during the discussions, the course of which I have already described, or at least in its essential aspects, of course.

Q. And during these sessions which you mentioned were the questions raised about murders, and burning of cities?

A. There was no talk at these discussions about setting on fire, but mention was made of the orders which had been issued with respect to the prisoners.

Q. About the murders only.

A. About the executions.

GENERAL RUDENKO: That is all.

THE PRESIDENT: Does the French prosecutor wish to ask any questions?

BY M. DUBOST: One single question.

Q. Who gave the orders for the liquidation of the army leaders?

A. I did not understand that – the destruction of the “Kommandos”? What was it exactly that you meant? Presumably the killing of members of the Kommando troops?

Q. Who gave the orders for the execution?

A. I did not read the order myself, but according to what was said in our circles about this subject, the idea came from Hitler himself, who was instrumental in reorganising the S.D., but who also has helped in the reforming of the S.D. I do not know.

Q. The defendants Keitel, Jodl, what orders did they handle; what orders did they give?

A. I cannot say that because I do not know.

Q. What were the reasons for these orders, as far as you know?

A. Not merely was it my opinion, but it was common knowledge, that the reasons for these orders were, to have an intimidating effect and thus to crush and paralyse the activity of the commandos.

Q. Who gave the order to have Generals Giraud and Weygand executed or murdered?

A. I did not hear the first part of the question. Who gave the order to kill Weygand and Giraud? The order to liquidate, that is, to be explicit, to murder Weygand and Giraud, as Canaris told me, came from Keitel. This order and this intention regarding the case Weygand, were furthermore directly transmitted to me in a personal remark on the part of Keitel. Keitel asked me after Canaris had read to him a report in my presence, On 23rd December, 1940, according to my notes, about the progress in the case Weygand.

As regards the second case, that is the case Giraud, it is a fact that the order came from Keitel to Canaris – this I heard first from Canaris himself – and so did the other chiefs who were present. I further heard of it a second time during a report from Canaris to Keitel, in my presence, in July, 1942, when this order was communicated to me in a manner similar to that of case Weygand, and, finally, in a direct manner, that is, a telephone conversation which I described here, received from Keitel and transmitted as urgent intelligence.

(The British Chief Prosecutor indicated that he had no questions to ask.)

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 now, or that at the next session this question may be discussed in cross-examination.

THE PRESIDENT: Very well. You shall have an opportunity to cross-examine at 10 o’clock to-morrow. Does any member of the Tribunal wish to ask any questions of the witness now?

BY THE TRIBUNAL (Mr. Biddle):

Q. I should like to ask the witness whether the orders for the killing of the Russians and in connection with the treatment of the prisoners were in writing?

A. As far as I know, yes, but I did not see or read these orders myself.

Q. Were they official orders?

A. Yes, they were official orders, of course, though the facts were brought out in a roundabout way. It was these orders which Reinecke and the others discussed and this is how I learned about their essential points; I did not read them myself at any time. Still, that they were not oral agreements I knew, because they were commented upon; consequently I knew that something existed in writing. Only, I cannot say whether there were one or more orders, or who signed them. This I did not claim to know. I submitted my knowledge which is based solely on discussions and reports from which I quite clearly could deduct the existence of orders.

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

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

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

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

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

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

THE PRESIDENT: General Nikitchenko wants to ask a question.

BY THE TRIBUNAL (Gen. Nikitchenko):

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

A. Well, I must correct something that I said. We didn’t get the order in the Ausland-Abwehr because it had nothing to do with us, but I knew about it, and went into this conference as a representative of the Ausland- Abwehr. But we ourselves had nothing to do with the treatment of prisoners of war, and certainly not in this negative sense.

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

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

Q. At headquarters?

A. In the O.K.W. – at headquarters.

Q. At the headquarters of the German Army?

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

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

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

Q. All these reports brought about results?

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

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

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

Q. These instructions were received from Ribbentrop and Keitel?

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

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

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

THE PRESIDENT: yes, Doctor

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Do you understand what I said?

DR. VON ROHRSCHEIDT: Yes.

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

The first quotation –

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

Which report are you referring to?

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

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

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

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

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

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

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

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

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

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

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

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 unsigned report of the 14th.

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

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

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

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

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

Have you got that?

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

THE PRESIDENT: That is two.

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

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

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

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

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

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

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

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

In view of my own experience I consider that the defendant is incapable of grasping the charges which the Tribunal will bring against him, to the extent that is required for his defence, because his memory is very unreliable. Because of his loss of memory he remembers neither events of the past nor the persons who were associated with him in the past. I am, therefore, of the opinion that defendant’s own claim that he is fit to plead is irrelevant. The reduction of the defendant’s capacity will not improve within a given time, according to the medical report and therefore I think that the proceedings against him should be suspended.

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

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

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

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

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

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

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

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

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

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

And now I wish to submit an additional motion:-

Should the Tribunal consider defendant Hess fit to plead – which, in my opinion, would be contrary to the opinion expressed in the medical reports – I request that a further medical test be made in order to investigate the question once more, for, as I have seen from the reports, each of the doctors examined and talked to the defendant for only a few hours during one day (during two days in one case). In a case as outstanding as this one, it seems to me, that, in order to obtain a complete picture of the defendant’s case, it would be advisable to place him in a suitable hospital, for an examination over an extended period of time, in order to obtain a reliable picture based on several weeks of observation. The experts themselves are, obviously, not quite sure whether defendant Hess is mentally ill, apart or beyond the admitted unfitness to plead, This clearly emerges from the fact that all the medical statements emphasise that should the accused, when called upon by the Court, not be considered fit to plead, he should again be subjected to a psychiatric examination. I think this course should be followed in accordance with the suggestion made by the psychiatrists who have already examined him. I should therefore request – in case the Tribunal considers the defendant fit to plead – that the suggestion of the psychiatrists who have already examined him be followed, and that another medical opinion be obtained.

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 defect from which he is suffering is forgetfulness about what happened before he flew to England?

DR. VON ROHRSCHEIDT: Mr. President, it is true that the experts find defendant Hess capable of following the proceedings. But when answering the questions put to them they emphasise on the other hand, that the defendant is incapable of defending himself. The Tribunal asked the experts to give their opinion on the following questions, and I beg to read them again: “Is the defendant mentally healthy or not?” The question was answered in the affirmative by all experts, i.e., that he is not mentally ill, which does not, however, exclude the fact that the defendant might, at this moment, be incapable of pleading. This is borne out again by the answer of the experts to the next question: “Is the defendant mentally capable of following the proceedings so as to adequately defend himself, to understand a witness he wishes to repudiate, and to comprehend evidence submitted?” This is the wording of the translation in my possession. It seems to me that this question is answered by the experts, to the effect that the defendant is incapable of suitably defending himself, of rejecting a witness he wishes to repudiate and of comprehending evidence submitted. That I consider is contained in all the experts’ reports with the exception of the report given by the Russians. Looking at the report given by the Franco-American delegation, if I may submit that to the Court, dated 20th November, it is stated under G, “as a result of our examination and investigations, we find that Hess is suffering from hysteria which partly manifests itself in a loss of memory.” Now I come to the passage to which I should like to draw the Court’s attention, “The loss of memory is of a kind that will not impair his understanding of the proceedings, but will do so with regard to his reactions to questions about his past, which would reduce the weight of his defence.”

This report thus establishes that Hess’s defence will be impaired. And I believe that the experts’ admission “that his memory is affected” means that his fitness to plead is greatly reduced. The report of the Soviet-French delegation, signed by the Russian professors and Professor Delay, goes even further in stating that, although the defendant is able to comprehend all that happens around him, amnesia affects his capacity to defend himself and to understand details of the proceedings, and that this amnesia must be considered an impediment. If one is to interpret this report in the spirit of the doctors who wrote it, it clearly means that the defendant is not insane, that he can follow the proceedings – to all appearances – but that he cannot defend himself, as he is suffering from a credible form of amnesia based on hysteria.

THE TRIBUNAL (Mr Biddle): Do you accept the opinion of the experts?

DR. VON ROHRSCHEIDT: Yes.

THE TRIBUNAL (GENERAL NIKITCHENKO): I should like to draw the attention of the defence counsel to the fact that he has referred inaccurately to the decision reached by the Soviet and French experts. He has rendered this decision in a free translation which does not correspond to the original content.

DR. VON ROHRSCHEIDT: May I ask whether the report of 16th November is meant? May I once more read what my translation says? I can only refer to the translation of the English text that was given to me. This translation was made in the Translation Division of the Secretariat and handed over to me in this shape.

May I repeat that the translation in my possession refers to the report of 16th November, 1945, which was signed by members of the Soviet delegation and by Professor Delay of Paris?

Under Point 3 of this report the following is stated:

“The defendant is not insane in the strict sense of the word at present. His amnesia does not prevent him from following everything that is going on around him. But it affects his capacity to defend himself and to understand all details of the defence which might be presented as actual facts.”

That is the text which I have here before me in the authentic German version.

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 defence counsel acting for Hess, concerning the results of the evidence regarding Hess’ certified psychological condition, I consider it essential to make the following declaration: his psychological condition was certified by experts appointed by the Tribunal. These experts appointed by the Tribunal came to the unanimous conclusion that he is sane and responsible for his actions. The chief prosecutors after discussing the results of the decision and acting in accordance with the order of the Tribunal, replied as follows to the inquiry of the Tribunal: First of all, we have no questions to ask, no doubts to cast on the Commission. We consider that the defendant, Rudolf Hess, is perfectly able to stand his trial. This is the unanimous statement made by the chief prosecutors.

THE PRESIDENT (interposing): Will you speak more slowly, please?

GENERAL RUDENKO: I consider that the findings of the experts are quite sufficient to declare Hess sane and able to stand his trial. We therefore request the Tribunal to make the requisite decision this very day.

The defence counsellor, in his statement, when submitting to the Tribunal his reasons either for the postponement of the proceedings or for the settlement of the defendant’s case, refers to the decision of the experts. I must, however, declare that this decision (and I do not know on what principle it was reached) has been quoted absolutely inaccurately. In the summary submitted by the defence counsel it is pointed out that the mental condition of the defendant Hess did not permit him to defend himself, to reply to the witnesses or to understand all the details of the evidence. This is contrary to the decision submitted by the experts, in their statement. The final conclusion of the experts definitely states that a similar loss of memory would not entirely prevent him from understanding the trial, but would preclude the possibility of defending himself and of remembering particulars of the past. I consider that these particulars, which Hess is unable to remember, would not interest the Tribunal unduly. The most important point is that which was emphasised by the experts in their decision, a point which they never doubted themselves and which, incidentally, was never doubted by Hess’ defence counsel, namely, the fact that Hess was sane, in which case he, Hess, comes under the jurisdiction of the International Tribunal. On the strength of the above- mentioned data, I consider that the petition of the defence should be declined as being devoid of foundation.

SIR DAVID MAXWELL FYFE: May it please the Tribunal:

It has been suggested that I might say just a word, and as shortly as the Tribunal desires, as to the legal conceptions which govern the position in which the Tribunal and this defendant are placed at the present time.

The question before the Tribunal is whether this defendant is able to plead to the Indictment, and should be tried at the present time.

If I might very briefly refer the Tribunal to the short passages in the report, which I submit are relevant, it might be useful at the present time. According to the attachments to the order, which I have, the first report is that signed by the British doctors on the 19th November, 1945. And in that report, I beg the Tribunal to refer to paragraph 3, in which the signatories say: “At the moment he is not insane in the strict sense. His loss of memory will not entirely interfere with his comprehension of the proceedings, but it will interfere with his ability to make his defence and to understand details of the past, which arise in evidence.”

The next report is that signed by the American and French doctors, and in paragraph I, the Tribunal will see: “We find, as a result of our examinations and investigations, that Rudolf Hess is suffering from hysteria, characterised in part by loss of memory. The nature of this loss of memory is such that it will not interfere with his comprehension of the proceedings, but it will interfere with his response to questions relating to his past, and will interfere with his undertaking his defence.”

If the Tribunal will proceed to the third report, signed by the Soviet doctors, at the foot of page 1, of the copy that I have, there is a paragraph beginning “Psychologically – “, which I submit is of importance – “Psychologically, Hess is in a state of clear consciousness. He knows that he is imprisoned at Nuremberg, under Indictment as a War Criminal; has read and, according to his own words, is acquainted with the charges against him. He answers questions rapidly and to the point. His speech is coherent. His thoughts are formed with precision and correctness and they are accompanied by sufficient emotionally expressive movements. Also, there is no kind of evidence of paralogism. It should also be noted here, that the present psychological examination, which was conducted by Lieut. Gilbert, Doctor of Medicine, bears out the testimony, that the intelligence of Hess is normal and in some instances, above average. His movements are natural and not forced.”

Now, if I may come to the next report, I am sorry – the report which is signed by the three Soviet doctors, and Professor Delay of Paris, dated the 16th, which is the last in my bundle; that says in paragraph 3:

“At present he is not insane in the strict sense of the word. His amnesia does not prevent him completely from understanding what is going on around him, but it will interfere with his ability to conduct his defence and to understand details of the past, which would appear as factual data.”

I refer, without quoting, because I do not consider that they are of such importance at this point, to the explanation of the kind and reason of the amnesia which appeared in the Soviet report, dated the 17th November, under the numbers one, two and three, at the end of the report. But I remind the Tribunal that all these reports unite in saying that there is no form of insanity.

In these circumstances, the question in English Law, and I respectfully submit that to the consideration of the Tribunal as being representative of natural justice in this regard, is, in deciding whether the defendant is fit to plead, the issue is whether the defendant be insane or not, and the time which is relevant for the deciding of that issue is at the date of the arraignment and not at any prior time.

Different views have been expressed as to the party on whom the onus of proof lies in that issue, but the later, and logically the better view, is that the onus is on the defence, because it is always presumed that a person is sane until the contrary is proved.

Now, if I might refer the Court to one case which I suspect, if I may so use my mind, has not been absent from the Court’s mind, because of the wording of the notice which we are discussing to-day, it is the case of Pritchard in 7 Carrington and Pike, which is referred to in Archibold, Criminal Pleading on the 1943 edition, at page 147:

In Pritchard’s case, where a prisoner arraigned on an indictment for felony appeared to be deaf, dumb, and also not of sane mind, Baron Alderson put three distinct issues to the jury, directing the jury to be sworn separately on each: (1) whether the prisoner was mute of malice, or by the visitation of God, (2) whether he was able to plead, (3) whether he was sane or not. And on the last issue they were directed to inquire whether the prisoner was of sufficient intellect to comprehend the course of the proceedings of the trial so as to make a proper defence, to challenge a juror, that is, a member of the jury, to whom he might wish to object, and to understand the details of the evidence; and he directed the jury that if there was no certain mode of communicating to the prisoner the details of the evidence, so that he could clearly understand them, and be able properly to make his defence to the charge against him, the jury ought to find that he was not of sane mind.

I submit to the Tribunal that the words there quoted, “to comprehend the course of the proceedings of the trial so as to make a proper defence”, emphasise that the material time, the only time which should be considered, is whether at the moment of plea and of trial the defendant understands what is charged against him, and the evidence by which it is supported.

THE PRESIDENT: And does not relate to his memory at that time.

SIR DAVID MAXWELL FYFE: That is, I respectfully agree with your Lordship, it does not relate to his memory. It has never, in English jurisprudence, to my knowledge, been held to be a bar either to trial or punishment, that a person who comprehends the charge and the evidence, has not got a memory as to what happened at the time. That, of course, is entirely a different question which does not arise either on these reports or on this application, as to what was the defendant’s state of mind when the act was committed. No one here suggests that the defendant’s state of mind when the action charged was committed was abnormal, and it does not come into this case. ,

THE PRESIDENT: He will, it seems to me, be able to put forward his amnesia as part of his defence.

SIR DAVID MAXWELL FYFE: Certainly, my Lord.

THE PRESIDENT: And to say, “I should have been able to make a better defence if I had been able to remember what took place at the time.”

SIR DAVID MAXWELL FYFE: Yes, Sir. If I might compare a very simple case within my experience, and I am sure within the experience of members of the Court where this has arisen scores of times in English courts, after a motor accident when a man is charged with manslaughter or doing grievous bodily harm, he is often in the position of saying, “because of the accident, my memory is not good, or fails as to the exact charge”. That should not, and no one has ever suggested that it could be a matter of relief from criminal responsibility. I hope that the Tribunal will not think that I have occupied too much of their time, but I thought it was useful just to present the matter on the basis of the English law as I understand it.

THE TRIBUNAL (Mr. Biddle): As I understand you, one of the tests under the Pritchard case is whether or not the defendant can make a proper defence?

SIR DAVID MAXWELL FYFE: With the greatest respect, will the learned judge read the preceding words which limit it? They say, “Whether a prisoner was of sufficient intellect to comprehend the course of the proceedings of the trial so as to make a proper defence.”

THE TRIBUNAL (Mr. Biddle): And would you interpret that to mean that this defendant could make a proper defence under the procedure of the trial, if you also find as a fact, which you, I think, do not dispute, and which you quoted in fact, that although not insane – now I quote: “He did not understand, or rather his amnesia does not prevent him completely from understanding, what is going on around him but it will interfere with his ability to conduct his defence, and understand details of the past.” You don’t think that is inconsistent with that finding?

SIR DAVID MAXWELL FYFE: No, I am submitting it is not. It is part of his defence, and it may well be “I don’t remember anything about that at all.” And he could actually add to that: “From my general behaviour or from other acts which I undoubtedly have done, it is extremely unlikely that I should do it.” That is the defence which is left to him. And he must take that defence, and that is my submission.

THE TRIBUNAL (Mr. Biddle): So even if we assume for the purpose of argument that his amnesia is complete, and that he remembers nothing that occurred before the indictment, though now understanding the proceedings, you think he should be tried?

SIR DAVID MAXWELL FYFE: I submit he should be tried. That is my submission as to the legal position. I especially did not discuss of course – the Tribunal will appreciate that – I did not discuss the quantum of amnesia here, because I am not putting that to the Tribunal, I wanted to put before the Tribunal the legal basis on which this application is opposed. Therefore I accept readily the extreme case which the learned American judge put to me.

THE TRIBUNAL (M. de Vabres): I ask in what period the real amnesia of Hess applies. He pretends to have forgotten facts which occurred more than fifteen days ago. It may be simulation or, as they say in the report, it may be real simulation. I would like to know if according to the reports Hess has really lost his memory of facts, which are referred to in the Indictment, facts which pertain to the part covered by the Indictment.

SIR DAVID MAXWELL FYFE: The facts which are included in the Indictment, the explanations that the doctors give as to his amnesia, are most clearly set out in these paragraphs of the Soviet report, that is the third report dated the 17th of November, 1945, page two, and the numbered paragraphs one to three. They say first:

“In the psychological personality of Hess there are no changes typical of the progressive schizophrenic disease. That is, there are no changes typical of a progressive double personality developing, from which he suffered periodically while in England. I am sorry, therefore, the delusions from which he suffered periodically while in England cannot be considered as manifestations of a schizophrenic paranoia, and must be recognised as the expression of a psychogenic paranoia reaction, that is, the psychologically comprehensible reaction.”

Now I ask the learned French judge to note the next sentence. “Of an unstable personality to the situation, the failure of his mission, arrest and incarceration. Such is the interpretation of the delirious statements of Hess in England, as bespoken by the disappearance, appearance, and repeated disappearance, depending on external circumstances which affected the mental state of Hess.”

Paragraph two: “The loss of memory by Hess is not the result of some kind of mental disease, but represents hysterical amnesia, the basis of which is a subconscious inclination towards self-defence.” Now I ask the learned French judge to note again the next words: As well as a deliberate and conscious tendency towards it.” Such behaviour often terminates when the hysterical person is faced with an unavoidable necessity of conducting himself correctly. Therefore the amnesia of Hess may end upon his being brought to trial.”

Three: “Rudolf Hess, prior to his flight to England, did not suffer from any kind of insanity, nor is he now suffering from it. At the present time he exhibits hysterical behaviour with signs of – and again I ask the learned French judge to note this point – with signs of a conscious intentional simulated character, which does not exonerate him from responsibility under the Indictment.

The last sentence is a matter for the Tribunal. But in these circumstances it would be impossible to say that the amnesia may continue to- be complete or is entirely unconscious. That is deliberately avoided by the learned doctors. Therefore the prosecution do not say that that is the case, but they do say that even if it were complete, the legal basis which I have suggested to the Court is a correct one for action in this matter.

THE PRESIDENT: Thank you, Sir David. Would Doctor Rohrscheidt like to add anything by way of reply? One moment: Mr Justice Jackson, I gathered from what Sir David said that he was speaking on behalf of you and of the French prosecution. Is that correct?

MR. JUSTICE JACKSON: I intend to adopt all that he said. I would only add a few more words, if I may.

THE PRESIDENT: Doctor Rohrscheidt, Mr. Justice Jackson has something to say first of all.

MR. JUSTICE JACKSON: I adopt all that has been said, and will not repeat. We have three applications before the Tribunal. One is for another examination. I will spend very little time on that. I think that we have made, up to this point in the examination, medical history in having seven psychiatrists from five nations who are completely in agreement. An achievement of that kind is not likely to be risked.

The only reason suggested here is that a relatively short time has been devoted to the examination, but I suggest to your Honour that that is not the situation, because there have been available the examinations and observations and medical history during the incarceration of Hess in England, extending from 1941, and the reports of the psychiatrists of the American Forces since he was brought to Nuremberg, and they all agree. So that there is a more complete medical history in this case than in most cases.

The next application was as to trial in absentia. I shall spend no time on that, for there seems to be no occasion for trying Hess in absentia if he should not be tried in his presence. If he is unable to be tried, why, he simply should not be tried at all. That is all I can see to it.

I would like to call your attention to the one thing in all this, the one statement on which any case can be made here for postponement. That is the statement with which we all agree: That Hess’ condition will interfere with his response to questions relating to his past, and will interfere with his undertaking his defence. Now, I think it will interfere with his defence if he persists in it, and I am sure that Counsel has a very difficult task. But Hess has refused the treatment, and I have filed with the Court the report of Major Kelly, the American psychiatrist, in whose care he was placed immediately after he was brought here.

He has refused every simple treatment that has been suggested. He has refused to submit to the ordinary things that we submit to every day, blood tests, examinations, and says he will submit to nothing until after the trial. The treatment which was suggested to bring him out of this hysterical condition every psychiatrist agrees that this is simply a hysterical condition if it is genuine at all-was the use of intravenous drugs of the barbital series, either sodium amytal or sodium phenotal, the ordinary sedative that you perhaps take on a sleepless night. We did not dare administer that, to be perfectly candid, against his objection, because we felt that however harmless – and in over a thousand cases observed by Major Kelly there had been no ill-effects, although some cases are reported where there has – we felt that should be he struck by lightening a month afterward it would still be charged that something we had done had caused his death; and we did not desire to impose any such treatment upon him.

But I respectfully suggest that a man cannot stand at the bar of the Court and assert this his amnesia is a defence to his being tried, and at the same time refuse the simple medical expedients which all agree might be useful.

He is in the volunteer class with his amnesia. When he was in England, he is reported to have made the statement that his earlier amnesia was simulated. He came out of this state during a period in England, and went back into it. It is now highly selective. That is to say, you cannot be sure what Hess will remember and what he will not remember. His amnesia is not of the type which is a complete, blotting out of the personality, of the type that would be fatal to his defence.

So we feel that so long as Hess refused the ordinary, simple expedients, even if his amnesia is genuine, he is not in a position to continue to assert that he must not be brought to trial. We think he should be tried, not in absentia, but that this trial should proceed.

THE TRIBUNAL (Mr. Biddle): Is not Hess asserting that he wants to be tried?

MR. JUSTICE JACKSON: Well, I don’t know about that. He had been interrogated and interrogated by us, interrogated by his co-defendants, and I would not attempt to say what he would now say he wants. I have not observed that it is causing him any great distress. Frankly, I doubt very much if he would like to be absent, but I would not attempt to speak for him.

THE PRESIDENT: Does M. Dubost wish to add anything?

(M. Dubost indicated that he did not.)

DR. VON ROHRSCHEIDT: May I just say a few words to the Tribunal to make my point of view clear once more?

As Hess’ defence counsel this is my point of view. First of all, it is a fact that Hess, according to the reports of the doctors which, all agree, is not mentally ill. It is therefore, not a question of his mental faculties being impaired.

Secondly, the defendant Hess is suffering from amnesia, which, as all medical experts admit, exists. They all agree, however, that this amnesia is caused by a pathological condition of his mind. The result is that the defendant is not insane, but has a mental defect. In a legal sense, I think, from this it can be deducted that the defendant cannot disdain responsibility for his actions, because at the time when the acts he is charged with were committed, he was certainly not mentally insane, consequently he can be held responsible. But there is a difference, according to German law at any rate, when the question is whether the defendant is at this moment in a position to follow the trial, that is, whether he is capable of participating in the proceedings. This question should, in my opinion, as I have already said, on the basis of the medical reports, be answered in the negative. He is not capable of pleading his case.

I admit that doubts are possible, and that the Court may not be completely satisfied that the answers of the experts, in the definition given, are sufficient to establish that the defendant’s ability to plead is actually impaired, in the light of the language, perhaps deliberately used by the Court, which speaks of ability to plead “adequately.” I believe that, perhaps, this is the point to be stressed.

It is my considered opinion that the amnesia, confirmed by all experts, would impair the ability to present an adequate defence.

The possibility exists that at times he might be able to plead or raise objections, and then at such times he may appear to follow the proceedings. But even then his defence could not be termed “adequate” and would not be comparable to that of a person in full possession of his mental faculties.

May I perhaps add one word. I have already explained that the defendant has expressed the wish to me that he would like to attend the sessions, as he does not feel himself unfit to plead, but that, in the opinion of the defence, is completely irrelevant. It is up to the Court to settle this question. The personal preference of the defendant is of no account. With respect to the conclusion which the American prosecutor might draw about the defendant’s refusal to be treated by narcotic means, that is not a question of truculence. He refused it because he was afraid that the intravenous injections at this particular moment might, in his weakened state, make him incapable of following the proceedings, which is exactly what he did not want to happen, and, as I have already mentioned, he himself thinks he is healthy and therefore says, “I do not need any intravenous treatment, I shall recover in the course of time.” The defendant also tells me that he has an abhorrence of such treatments, and that in the unhappy times of the National Socialist regime, he was always for the homeopathy. He even founded the Rudolf Hess Hospital in Dresden, which is conducted on a natural, rather than medical, therapeutical plane.

MR. JUSTICE JACKSON: May I make one observation, Your Honour?

THE PRESIDENT: Yes.

MR. JUSTICE JACKSON: The argument illustrates the selectivity of the memory of which I spoke to you. Hess apparently can inform his counsel about his attitude toward this particular matter during the National Socialist regime. His counsel is able to tell us how he felt about medical things during the National Socialist regime, but when we ask him about anything in which he participated that might have a criminal aspect, the memory becomes bad. I hope that the Court has not overlooked the statement of the matters that he does well recollect.

DR. VON ROHRSCHEIDT: May I make a correction?

THE PRESIDENT: It is unusual to hear counsel in a second reply, but as Mr. Justice Jackson has spoken again we will hear what you have to say.

DR. VON ROHRSCHEIDT: I would merely like to observe that I was misunderstood. It was not the defendant who told me that he was an adherent of natural medicine, thus proving that his memory works, but it was I who, from my own experience, ascertained this, and I know that he was an adherent. I gave that as my opinion and my experience in order to show that he has an instinctive aversion to medical treatments, but this remark was not based on memory of the defendant Hess but on a fact based on knowledge of my own.

THE PRESIDENT: Dr. Rohrscheidt, the Tribunal would like, if you consider it proper, that the defendant Hess should state what his views on this question are.

DR. VON ROHRSCHEIDT: As his defence counsel, I have certainly nothing to say against it, and I think it would be the defendant’s own wish, and the Tribunal would then be in a position to judge the mental state of the defendant, thus giving the Court an opportunity to observe Hess’ mental state.

THE DEFENDANT HESS: Mr. President, I would like to say this: At the beginning of the trial of this afternoon’s session, I gave my defence counsel a note that I am of the opinion that these proceedings could be shortened if I could be allowed to speak for myself. I wish to say the following:

In order to forestall the possibility of my being pronounced incapable of pleading in spite of my willingness to take part in further proceedings, and in order to receive sentence alongside my comrades, I would like to make the following declaration before the Tribunal, although, originally, I intended to make this declaration during a later part of the proceedings:

Henceforth my memory will again respond to the outside world. The reasons why I simulated loss of memory were tactical. The fact is that it is only my ability to concentrate that is somewhat reduced. However, my capacity to follow the trial, to defend myself, to put questions to witnesses or even to answer the questions, is not being affected hereby.

I emphasise that I bear the full responsibility for everything that I have done or signed as signatory or co- signatory. My attitude, in principle, that the Tribunal is not competent, is not affected by the statement I have just made. So far in conversations with my official defence counsel I have also simulated loss of memory. He has, therefore, represented me in good faith.

THE PRESIDENT: The trial is adjourned.

(The Tribunal adjourned until 10.00 hours on 1st December, 1945)

 

 

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