Part 16
3. _Recovery._ On the day of the special hearing in his case, 30 November 1945, Rudolf Hess did, in fact, recover his memory. The cause of his sudden recovery is an academic question, but the following event probably played a part: Just before the hearing I told Hess (as a challenge) that he might be considered incompetent at that time and excluded from the proceedings, but I would sometimes see him in his cell. Hess seemed startled and said he thought he was competent. Then he gave his declaration of malingering in court, apparently as a face-saving device. In later conversations he admitted to me that he had not been malingering, and that he knew he had lost his memory twice in England. During the months of December 1945, and January 1946, his memory was quite in order.
4. _Relapse._ At the end of January I began to notice the beginnings of memory failure. This increased progressively during February, until he returned to a state of virtually complete amnesia again about the beginning of March, and he has remained in that state ever since. (At the beginning of relapse, Hess expressed anxiety over it, saying that no one would believe him this time after he had said he had faked his amnesia the first time.) The amnesia is progressive, each day’s events being quickly forgotten. At present his memory span is about one-half day, and his apprehension span has dropped from 7 to 4 digits repeated correctly immediately after hearing.
5. _Competence and sanity._ I have read the application of Dr. Seidl both in German and in English, and wish to make the following comment:
_a._ Lay discussion of psychiatric concepts does not help throw any light on this case, because psychiatrists themselves are not in agreement on the definition of terms like “psychopathic constitution”, “hysterical reaction”, etc., and these terms have entirely different meanings in English and German usage.
_b._ The psychiatric commissions have agreed, and my further observations have confirmed, that Hess is _not_ insane (in the legal sense of being incapable of distinguishing right from wrong or realizing the consequences of his acts).
_c._ Hess did recover his memory for a sufficient period of time (2-3 months) to give his counsel ample cooperation in the preparation of his defense. If he failed to do so, it was the result of a negativistic personality peculiarity, which I have also observed, and not incompetence.
_d._ There has been no indication in his case history or present behavior that he was insane at the time of the activities for which he has been indicted. His behavior throughout the trial has also shown sufficient insight and reason to dispel any doubts about his sanity. (He may have gone through a psychotic episode in England, but that in no way destroys the validity of the previous two statements. He has exhibited signs of a “persecution complex” here too, but these have not been of psychotic proportions.)
_e._ In my opinion, another examination by a psychiatric commission at this time would not throw any further light on the case, because the clinical picture is the same and the conclusions would necessarily be the same as those of the original psychiatric commissions, to wit: Hess is not insane but suffering from hysterical amnesia. I have discussed this case with the present prison psychiatrist, Lt. Col. Dunn, who has recently examined Hess, and he is also of the opinion that Hess’s present mental state is apparently the same as that indicated in the original psychiatric reports, which he has read.
/s/ G. M. GILBERT, Ph.D. Prison Psychologist
[18] This report was referred to Counsel for Defendant Hess by order of the Tribunal, 20 August 1946, in reference to the motion of 2 August 1946 on behalf of the defendant. This motion, which reviewed at length the previous examinations and psychiatric history of Defendant Hess, was a request “to subject the Defendant Hess once more . . . to an examination by psychiatric experts with regard to his ability to stand trial and his soundness of mind.”
MOTION ADOPTED BY ALL DEFENSE COUNSEL[19]
19 November 1945
Two frightful world wars and the violent collisions by which peace among the States was violated during the period between these enormous and world embracing conflicts caused the tortured peoples to realize that a true order among the States is not possible as long as such State, by virtue of its sovereignty, has the right to wage war at any time and for any purpose. During the last decades public opinion in the world challenged with ever increasing emphasis the thesis that the decision of waging war is beyond good and evil. A distinction is being made between just and unjust wars and it is asked that the Community of States call to account the State which wages an unjust war and deny it, should it be victorious, the fruits of its outrage. More than that, it is demanded that not only should the guilty State be condemned and its liability be established, but that furthermore those men who are responsible for unleashing the unjust war be tried and sentenced by an International Tribunal. In that respect one goes now-a-days further than even the strictest jurists since the early middle ages. This thought is at the basis of the first three counts of the Indictment which have been put forward in this Trial, to wit, the Indictment for Crimes against Peace. Humanity insists that this idea should in the future be more than a demand,that it should be valid international law.
However, today it is not as yet valid international law. Neither in the statute of the League of Nations, world organization against war, nor in the Kellogg-Briand Pact, nor in any other of the treaties which were concluded after 1918 in that first upsurge of attempts to ban aggressive warfare, has this idea been realized. But above all the practice of the League of Nations has, up to the very recent past, been quite unambiguous in that regard. On several occasions the League had to decide upon the lawfulness or unlawfulness of action by force of one member against another member, but it always condemned such action by force merely as a violation of international law by the State, and never thought of bringing up for trial the statesmen, generals, and industrialists of the state which recurred to force. And when the new organization for world peace was set up last summer in San Francisco, no new legal maxim was created under which an international tribunal would inflict punishment upon those who unleashed an unjust war. The present Trial can, therefore, as far as Crimes against Peace shall be avenged, not invoke existing international law, it is rather a proceeding pursuant to a new penal law, a penal law enacted only after the crime. This is repugnant to a principle of jurisprudence sacred to the civilized world, the partial violation of which by Hitler’s Germany has been vehemently discountenanced outside and inside the Reich. This principle is to the effect that only he can be punished who offended against a law in existence at the time of the commission of the act and imposing a penalty. This maxim is one of the great fundamental principles of the political systems of the Signatories of the Charter for this Tribunal themselves, to wit, of England since the Middle Ages, of the United States since their creation, of France since its great revolution, and the Soviet Union. And recently when the Control Council for Germany enacted a law to assure the return to a just administration of penal law in Germany, it decreed in the first place the restoration of the maxim, “No punishment without a penal law in force at the time of the commission of the act”. This maxim is precisely not a rule of expediency but it derives from the recognition of the fact that any defendant must needs consider himself unjustly treated if he is punished under an _ex post facto_ law.
The Defense of all defendants would be neglectful of their duty if they acquiesced silently in a deviation from existing international law and in disregard of a commonly recognized principle of modern penal jurisprudence and if they suppressed doubts which are openly expressed today outside Germany, all the more so as it is the unanimous conviction of the Defense that this Trial could serve in a high degree the progress of world order even if, nay in the very instance where it did not depart from existing international law. Wherever the Indictment charges acts which were not punishable at the time the Tribunal would have to confine itself to a thorough examination and findings as to what acts were committed, for which purposes the Defense would cooperate to the best of their ability as true assistants of the Court. Under the impact of these findings of the Tribunal the States of the international legal community would then create a new law under which those who in the future would be guilty of starting an unjust war would be threatened with punishment by an International Tribunal.
The Defense are also of the opinion that other principles of a penal character contained in the Charter are in contradiction with the maxim, “_Nulla Poena Sine Lege_”.
Finally, the Defense consider it their duty to point out at this juncture another peculiarity of this Trial which departs from the commonly recognized principles of modern jurisprudence. The Judges have been appointed exclusively by States which were the one party in this war. This one party to the proceeding is all in one: creator of the statute of the Tribunal and of the rules of law, prosecutor and judge. It used to be until now the common legal conception that this should not be so; just as the United States of America, as the champion for the institution of international arbitration and jurisdiction, always demanded that neutrals, or neutrals and representatives of all parties, should be called to the Bench. This principle has been realized in an exemplary manner in the case of the Permanent Court of International Justice at The Hague.
In view of the variety and difficulty of these questions of law the Defense hereby pray:
That the Tribunal direct that an opinion be submitted by internationally recognized authorities on international law on the legal elements of this Trial under the Charter of the Tribunal.
On behalf of the attorneys for all defendants who are present.
/s/ DR. STAHMER
[19] The Tribunal rejected this motion 21 November 1945, ruling that insofar as it was a plea to the jurisdiction of the Tribunal it was in conflict with Article 3 of the Charter.
JUDGMENT
On 8 August 1945, the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, the Provisional Government of the French Republic, and the Government of the Union of Soviet Socialist Republics entered into an Agreement establishing this Tribunal for the Trial of War Criminals whose offenses have no particular geographical location. In accordance with Article 5, the following Governments of the United Nations have expressed their adherence to the Agreement:
Greece, Denmark, Yugoslavia, the Netherlands, Czechoslovakia, Poland, Belgium, Ethiopia, Australia, Honduras, Norway, Panama, Luxembourg, Haiti, New Zealand, India, Venezuela, Uruguay, and Paraguay.
By the Charter annexed to the Agreement, the constitution, jurisdiction, and functions of the Tribunal were defined.
The Tribunal was invested with power to try and punish persons who had committed Crimes against Peace, War Crimes, and Crimes against Humanity as defined in the Charter.
The Charter also provided that at the Trial of any individual member of any group or organization the Tribunal may declare (in connection with any act of which the individual may be convicted) that the group or organization of which the individual was a member was a criminal organization.
In Berlin, on 18 October 1945, in accordance with Article 14 of the Charter, an Indictment was lodged against the defendants named in the caption above, who had been designated by the Committee of the Chief Prosecutors of the signatory Powers as major war criminals.
A copy of the Indictment in the German language was served upon each defendant in custody, at least 30 days before the Trial opened.
This Indictment charges the defendants with Crimes against Peace by the planning, preparation, initiation, and waging of wars of aggression, which were also wars in violation of international treaties, agreements, and assurances; with War Crimes; and with Crimes against Humanity. The defendants are also charged with participating in the formulation or execution of a common plan or conspiracy to commit all these crimes. The Tribunal was further asked by the Prosecution to declare all the named groups or organizations to be criminal within the meaning of the Charter.
The Defendant Robert Ley committed suicide in prison on 25 October 1945. On 15 November 1945 the Tribunal decided that the Defendant Gustav Krupp von Bohlen und Halbach could not then be tried because of his physical and mental condition, but that the charges against him in the Indictment should be retained for trial thereafter, if the physical and mental condition of the defendant should permit. On 17 November 1945 the Tribunal decided to try the Defendant Bormann in his absence under, the provisions of Article 12 of the Charter. After argument, and consideration of full medical reports, and a statement from the defendant himself, the Tribunal decided on 1 December 1945 that no grounds existed for a postponement of the Trial against the Defendant Hess because of his mental condition. A similar decision was made in the case of the Defendant Streicher.
In accordance with Articles 16 and 23 of the Charter, Counsel were either chosen by the defendants in custody themselves, or at their request were appointed by the Tribunal. In his absence the Tribunal appointed Counsel for the Defendant Bormann, and also assigned Counsel to represent the named groups or organizations.
The Trial, which was conducted in four languages—English, Russian, French, and German—began on 20 November 1945, and pleas of “Not Guilty” were made by all the defendants except Bormann.
The hearing of evidence and the speeches of Counsel concluded on 31 August 1946.
Four hundred and three open sessions of the Tribunal have been held. Thirty-three witnesses gave evidence orally for the Prosecution against the individual defendants and 61 witnesses, in addition to 19 of the defendants, gave evidence for the Defense.
A further 143 witnesses gave evidence for the Defense by means of written answers to interrogatories.
The Tribunal appointed Commissioners to hear evidence relating to the organizations, and 101 witnesses were heard for the Defense before the Commissioners, and 1,809 affidavits from other witnesses were submitted. Six reports were also submitted, summarizing the contents of a great number of further affidavits.
Thirty-eight thousand affidavits, signed by 155,000 people, were submitted on behalf of the Political Leaders, 136,213 on behalf of the SS, 10,000 on behalf of the SA, 7,000 on behalf of the SD, 3,000 on behalf of the General Staff and OKW, and 2,000 on behalf of the Gestapo.
The Tribunal itself heard 22 witnesses for the organizations. The documents tendered in evidence for the Prosecution of the individual defendants and the organizations numbered several thousands. A complete stenographic record of everything said in Court has been made, as well as an electrical recording of all the proceedings.
Copies of all the documents put in evidence by the Prosecution have been supplied to the Defense in the German language. The applications made by the defendants for the production of witnesses and documents raised serious problems in some instances, on account of the unsettled state of the Country. It was also necessary to limit the number of witnesses to be called, in order to have an expeditious hearing, in accordance with Article 18 (c) of the Charter. The Tribunal, after examination, granted all those applications which in its opinion were relevant to the defense of any defendant or named group or organization, and were not cumulative. Facilities were provided for obtaining those witnesses and documents granted through the office of the General Secretary established by the Tribunal.
Much of the evidence presented to the Tribunal on behalf of the Prosecution was documentary evidence, captured by the Allied armies in German army headquarters, Government buildings, and elsewhere. Some of the documents were found in salt mines, buried in the ground, hidden behind false walls and in other places thought to be secure from discovery. The case, therefore, against the defendants rests in a large measure on documents of their own making, the authenticity of which has not been challenged except in one or two cases.
_The Charter Provisions_
The individual defendants are indicted under Article 6 of the Charter, which is as follows:
“Article 6. The Tribunal established by the Agreement referred to in Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes:
“The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:
“(a) Crimes Against Peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing:
“(b) War Crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public of private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity:
“(c) Crimes Against Humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
“Leaders, organizers, instigators, and accomplices, participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.”
These provisions are binding upon the Tribunal as the law to be applied to the case. The Tribunal will later discuss them in more detail; but, before doing so, it is necessary to review the facts. For the purpose of showing the background of the aggressive war and war crimes charged in the Indictment, the Tribunal will begin by reviewing some of the events that followed the first World War, and in particular, by tracing the growth of the Nazi Party under Hitler’s leadership to a position of supreme power from which it controlled the destiny of the whole German People, and paved the way for the alleged commission of all the crimes charged against the defendants.
_The Nazi Regime in Germany the Origin and Aims of the Nazi Party_
On 5 January 1919, not two months after the conclusion of the Armistice which ended the first World War, and six months before the signing of the peace treaties at Versailles, there came into being in Germany a small political party called the German Labor Party. On 12 September 1919 Adolf Hitler became a member of this Party, and at the first public meeting held in Munich, on 24 February 1920, he announced the Party’s program. That program, which remained unaltered until the Party was dissolved in 1945, consisted of 25 points, of which the following five are of particular interest on account of the light they throw on the matters with which the Tribunal is concerned:
“_Point 1._ We demand the unification of all Germans in the Greater Germany, on the basis of the right of self-determination of peoples.
_Point 2._ We demand equality of rights for the German People in respect to the other nations; abrogation of the peace treaties of Versailles and Saint Germain.
_Point 3._ We demand land and territory for the sustenance of our people, and the colonization of our surplus population.
_Point 4._ Only a member of the race can be a citizen. A member of the race can only be one who is of German blood, without consideration of creed. Consequently no Jew can be a member of the race . . . .
_Point 22._ We demand abolition of the mercenary troops and formation of a national army.”
Of these aims, the one which seems to have been regarded as the most important, and which figured in almost every public speech, was the removal of the “disgrace” of the Armistice, and the restrictions of the peace treaties of Versailles and Saint Germain. In a typical speech at Munich on 13 April 1923, for example, Hitler said with regard to the Treaty of Versailles:
“The Treaty was made in order to bring 20 million Germans to their deaths, and to ruin the German Nation . . . . At its foundation our movement formulated three demands:
1. Setting aside of the Peace Treaty.
2. Unification of all Germans.
3. Land and soil to feed our Nation.”
The demand for the unification of all Germans in the Greater Germany was to play a large part in the events preceding the seizure of Austria and Czechoslovakia; the abrogation of the Treaty of Versailles was to become a decisive motive in attempting to justify the policy of the German Government; the demand for land was to be the justification for the acquisition of “living space” at the expense of other nations; the expulsion of the Jews from membership of the race of German blood was to lead to the atrocities against the Jewish people; and the demand for a national army was to result in measures of rearmament on the largest possible scale, and ultimately to war.
On 29 July 1921, the Party which had changed its name to National Sozialistische Deutsche Arbeiter Partei (NSDAP) was reorganized, Hitler becoming the first “Chairman”. It was in this year that the Sturmabteilung or SA was founded, with Hitler at its head, as a private para-military force, which allegedly was to be used for the purpose of protecting NSDAP leaders from attack by rival political parties, and preserving order at NSDAP meetings, but in reality was used for fighting political opponents on the streets. In March 1923 the Defendant Göring was appointed head of the SA.
The procedure within the Party was governed in the most absolute way by the “Leadership Principle” (Führerprinzip).
According to the principle, each Führer has the right to govern, administer, or decree, subject to no control of any kind and at his complete discretion, subject only to the orders he received from above.
This principle applied in the first instance to Hitler himself as the leader of the Party, and in a lesser degree to all other Party officials. All members of the Party swore an oath of “eternal allegiance” to the leader.