6. RUDOLF HESS
Through his pre-trial confinement in the Nurnberg prison, Hess had consistently maintained that he was suffering from amnesia and therefore could not remember facts concerning his previous activities. In order to determine Hess’ mental state the Tribunal appointed a commission of psychiatric experts from the United States, Great Britain, Russia, and France, to examine the defendant and furnish a report. After receiving the medical report the Tribunal directed that oral argument by the prosecution and defense counsel should be heard on 30 November 1945 concerning the issues raised by the medical report. Prior to the oral argument, both the prosecution and defense filed written motions which outlined substantially the positions later taken in court.
At the conclusion of the oral arguments, the Tribunal called upon Hess for a statement. Hess thereupon announced that he had simulated loss of memory for tactical reasons and that his memory was “again in order.” On the following day the Tribunal ruled that Hess was capable of standing trial and that his case would proceed.
The papers pertaining to these matters are set out below.
A. RULING OF THE TRIBUNAL ORDERING ARGUMENT ON THE ISSUES PRESENTED BY THE MEDICAL REPORTS
1. Counsel for the defendant Hess has made application to the Tribunal to appoint an expert designated by the medical faculty of the University of Zurich or of Lausanne to examine the defendant Hess with reference to his mental competence and capacity to stand trial. This application is denied.
2. The Tribunal has designated a commission composed of the following members:
Eugene Krasnuchkin, M.D., Professor Psychiatry,
Medical Institute of Moscow, assisted by
Eugene Sepp, M.D., Professor Neurology,
Medical Institute of Moscow
Member, Academy of Medical Sciences, USSR; and,
Nicolas Kuraskov, M.D., Professor of Medicine
Medical Institute of Moscow,
Chief Internist, Commissariat of Public Health, USSR.
Lord Moran, M.D., F.R.C.P.
President of the Royal College of Physicians, assisted by
Dr. T. Reece, M.D., F.R.C.P.
Chief Consultant Psychiatrist to the War Office, and
Dr. George Ruddock, M.D., F.R.C.P.
Director of Neurology to the London Hospital and
Chief Consultant Neurologist to the War Office
Dr. Nolan D. C. Lewis, assisted by
Dr. D. Ewen Cameron and
Col. Paul Schroeder, M.D.
Professor Jean Delay.
The Tribunal has requested the commission to examine the defendant Hess and furnish a report on the mental state of the defendant with particular reference to the question whether he is able to take his part in the trial, specifically: (1) Is the defendant able to plead to the indictment? (2) Is the defendant sane or not, and on this last issue the Tribunal wishes to be advised whether the defendant is of sufficient intellect to comprehend the course of the proceedings of the trial so as to make a proper defense, to challenge a witness to whom he might wish to object and to understand the details of the evidence.
3. The examiners have presented their reports to the Tribunal in the form which commends itself to them. It is directed that copies of the reports be furnished to each of the Chief Prosecutors and to defense counsel. The Tribunal will hear argument by the Prosecution and by defense counsel on the issues presented by the reports on Friday, November 30 at 4 P. M.
INTERNATIONAL MILITARY TRIBUNAL
[signed] Geoffrey Lawrence
Geoffrey Lawrence
President
Dated Nurnberg, Germany this 24th day of November, 1945
Copies of four (4) Medical Reports attached:
(1) British Medical Report
REPORT on Rudolf Hess, telephoned from London.
“The undersigned, having seen and examined Rudolf Hess, have come to the following conclusion:
1. There are no relevant physical abnormalities.
2. His mental state is of a mixed type. He is an unstable man, and what is technically called a psychopathic personality. The evidence of his illness in the past four years, as presented by one of us who has had him under his care in England, indicates that he has had a delusion of poisoning, and other similar paranoid ideas.
Partly as a reaction to the failure of his mission, these abnormalities got worse, and led to suicidal attempts.
In addition, he has a marked hysterical tendency, which has led to the development of various symptoms, notably a loss of memory, which lasted from November 1943 to June 1944, and which resisted all efforts at treatment. A second loss of memory began in February 1945 and lasted till the present. This amnesic symptom will eventually clear, when circumstances change.
3. 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 defense, and to understand details of the past, which arise in evidence.
4. We recommend that further evidence should be obtained by narco-analysis and that if the Court decides to proceed with the Trial, the question should afterwards be reviewed on psychiatric grounds.”
[signed] Moran
J. Rees, MD, FRCP
George Riddoch
Dated 19th November, 1945
(2) Joint American and French Medical Report
20 November 1945
MEMORANDUM TO: Brigadier General Wm. L. Mitchell, General Secretary for the International Military Tribunal.
In response to request of the Tribunal that the defendant Rudolf Hess be examined, the undersigned psychiatrists examined Rudolf Hess on November 15th and 19th, 1945, in his cell in the Military Prison in Nurnberg.
The following examinations were made: physical, neurological and psychological.
In addition, documents were studied bearing information concerning his personal development and career. Reports concerning the period of his stay in England were scrutinized. The results of all psychological, special psychometric examinations and observations carried out by the prison psychiatrist and his staff were studied. Information was also derived from the official interrogation of the defendant on November 14th and November 16th, 1945.
(1) We find, as a result of our examinations and investigations, that Rudolf Hess is suffering from hysteria characterized 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 defense.
In addition there is a conscious exaggeration of his loss of memory and a tendency to exploit it to protect himself against examination.
(2) We consider that the existing hysterical behaviour which the defendant reveals was initiated as a defense against the circumstances in which he found himself while in England; that it has now become in part habitual and that it will continue as long as he remains under the threat of imminent punishment, even though it may interfere with his undertaking a more normal form of defense.
(3) It is the unanimous conclusion of the undersigned that Rudolf Hess is not insane at the present time in the strict sense of the word.
(s) D. Ewen Cameron
DR. D. EWEN CAMERON
Professor of Psychiatrie, McGill University
(s) Paul L. Schroeder
COL. PAUL L. SCHROEDER
A.U.S. Neuropsychiatric Consultant
(s) Jean Delay
DR. JEAN DELAY
Professor of Psychiatrie at the Faculty of Medicine in Paris
(s) Nolan D. C. Lewis
DR. NOLAN D. C. LEWIS
Professor Psychiatry, Columbia University
(3) Soviet Medical Report
TO THE INTERNATIONAL MILITARY TRIBUNAL
In pursuance of the assignment by the Tribunal, we, the medical experts of the Soviet Delegation, together with the physicians of the English Delegation and in the presence of one representative of the American Medical Delegation, have examined Rudolf Hess and made a report on our examination of Mr. Hess together with our conclusions and interpretation of the behavior of Mr. Hess.
The statement of the general conclusions has been signed only by the physicians of the Soviet Delegation and by Professor Delay, the medical expert of the French Delegation.
Appendix: 1 Conclusions and 2 the Report on the examination of Mr. Hess.
(signed) Professor Krasnushkin,
Doctor of Medicine
(signed) Professor Sepp,
Honorary Scientist, Regular Member of the
Academy of Medicine
(signed) Professor Kushakov,
Doctor of Medicine, Chief Therapeutist of the
Commissariat of Health of the U.S.S.R.
November 17, 1945
(a) Conclusions
After observation and an examination of Rudolf Hess the undersigned have reached the following conclusions:
1. No essential physical deviations from normality were observed.
2. His mental conditions are of a mixed type. He is an unstable person, which in technical terms is called a psychopathic personality. The data concerning his illness during the period of the last four years submitted by one of us who had him under observation in England, show that he had a delusion of being poisoned and other similar paranoic notions.
Partly as a reaction to the failure of his mission there, the abnormal manifestations increased and led to attempts at suicide. In addition to the above-mentioned he has noticeable hysterical tendencies which caused a development of various symptoms, primarily, of amnesia that lasted from November 1943 to June of 1944 and resisted all attempts to be cured.
The amnesia symptom may disappear with changing circumstances.
The second period of amnesia started in February of 1945 and has lasted up through the present.
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 defense and to understand details of the past which would appear as factual data.
4. To clarify the situation we recommend that a narco-analysis be performed on him and, if the Court decides to submit him to trial, the problem should be subsequently reexamined again from a psychiatric point of view.
The conclusion reached on November 14 by the physicians of the British Delegation, Lord Moran, Dr. T. Rees and Dr. G. Riddoch, and the physicians of the Soviet Delegation, Professors Krasnushkin, Sepp, and Kurshakov, was also arrived at on November 15 by the representative of the French Delegation, Professor Jean Delay.
After an examination of Mr. Hess which took place on November 15, 1945, the undersigned Professors and experts of the Soviet Delegation, Krasnushkin, Sepp and Kurshakov, and Professor Jean Delay, the expert from the French Delegation, have agreed on the following statement:
Mr. Hess categorically refused to be submitted to narco-analysis and resisted all other procedures intended to effect a cure of his amnesia, and stated that he would agree to undergo treatment only after the trial. The behavior of Mr. Hess makes it impossible to apply the methods suggested in Paragraph 4 of the report of November 14 and to follow the suggestion of that Paragraph in present form.
(signed) Professor Krasnushkin,
Doctor of Medicine
(signed) Professor Sepp,
Honorary Scientist, Regular Member of the
Academy of Medicine
(signed) Professor Kurshakov,
Doctor of Medicine, Chief Theraputist of the
Commissariat of Health of the U.S.S.R.
(signed) Professor Jean Delay
of the School of Medicine in Paris
November 16, 1945
(b) Record of Examination of Rudolf Hess
According to the information obtained on Nov. 16, 1945, during the interrogation of Rosenberg who had seen Hess immediately before the latter’s flight to England, Hess gave no evidence of any abnormality either in appearance or conversation. He was, as usual, quiet and composed. Nor was it apparent that he might have been nervous. Prior to this, he was a calm person, habitually suffering pains in the region of the stomach.
As can be judged on the basis of the report of the English psychiatrist, Doctor Rees, who had Hess under observation from the first days of his flight to England, Hess, after the airplane crash, disclosed no evidence of a brain injury, but, upon arrest and incarceration, he began to give expression to ideas of persecution. He feared that he would be poisoned, or killed and his death represented as a suicide, and that all this would be done by the English under the hypnotic influence of the Jews. Furthermore, these delusions of persecution were maintained up to the news of the catastrophe suffered by the German Army at Stalingrad when the manifestations were replaced by amnesia. According to Doctor Rees, the delusions of persecution and the amnesia were observed not to take place simultaneously. Furthermore, there were two attempts at suicide. A knife wound, inflicted during the second attempt, in the skin near the heart gave evidence of a clearly hysterico-demonstrative character. After this there was again observed a change from amnesia to delusions of persecution, and during this period he wrote that he was simulating his amnesia, and, finally, again entered into a state of amnesia which has been prolonged up to the present.
According to the examination of Rudolf Hess on Nov. 14, 1945, the following was disclosed.
Hess complains of frequent cramping pains in the region of the stomach which appear independent of the taking of food, and headaches in the frontal lobes during mental strain, and, finally, of loss of memory.
In general his condition is marked by a pallor of the skin and a noticeable reduction in food intake.
Regarding the internal organs of Hess, the pulse is 92, and a shakening of the heart tone is noticeable. There has been no change in the condition of the other internal organs.
Concerning the neurological aspect, there are no symptoms of organic impairment of the nervous system.
Psychologically, Hess is in a state of clear consciousness; knows that he is in prison at Nurnberg 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 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, M.D., bears out the testimony that the intelligence of Hess is normal and in some instances above the average. His movements are natural and not forced.
He has expressed no delirious fancies nor does he give any delirious explanation for the painful sensation in his stomach or the loss of memory, as was previously attested to by Doctor Rees, namely, when Hess ascribed them to poisoning. At the present time, to the question about the reason for his painful sensations and the loss of memory, Hess answers that this is for the doctors to know. According to his own assertions, he can remember almost nothing of his former life. The gaps in Hess’ memory are ascertained only on the basis of the subjective changing of his testimony about his inability to remember this or that person or event given at different times. What he knows at the present time is, in his own words, what he allegedly learned only recently from the information of those around him and the films which have been shown him.
On Nov. 14 Hess refused the injection of narcotics which were offered for the purpose of making an analysis of his psychological condition. On Nov. 15, in answer to Prof. Delay’s offer, he definitely and firmly refused narcosis and explained to him that, in general, he would take all measures to cure his amnesia only upon completion of the trial.
All that has been exposed above, we are convinced, permits, of the interpretation that the deviation from the norm in the behavior of Hess takes the following forms:
I. In the psychological personality of Hess there are no changes typical of the progressive schizophrenic disease, and therefore the delusions, from which he suffered periodically while in England, cannot be considered as manifestations of a schizophrenic paranoia, and must be recognized as the expression of a psychogenic paranoic reaction, that is, the psychologically comprehensible reaction of an unstable (psychologically) personality to the situation (the failure of his mission, arrest and incarceration). Such an interpretation of the delirious statements of Hess in England is bespoken by their disappearance, appearance and repeated disappearance depending on external circumstances which affected the mental state of Hess.
II. The loss of memory of Hess is not the result of some kind of mental disease but represents hysterical amnesia, the basis of which is a subconscious inclination toward self-defense as well as a deliberate and conscious tendency toward it. Such behavior 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.
III. 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 behavior with signs of a conscious-intentional (simulated) character, which does not exonerate him from his responsibility under the indictment.
(signed) Professor Krasnushkin,
Doctor of Medicine
(signed) Professor Sepp,
Honorary Scientist, Regular Member of the
Academy of Medicine
(signed) Professor Kurshakov,
Doctor of Medicine, Chief Theraputist of the
Commissariat of Health of the U.S.S.R.
17 November 1945
B. MOTION BY DEFENSE COUNSEL FOR POSTPONEMENT OF PROCEEDINGS AGAINST HESS
Attorney-at-law von Rohrscheidt
Defense Counsel for Rudolf Hess
Nurnberg, 29 November 1945
To the General Secretary of the International Military Tribunal, Nurnberg:
Reference: Rudolf Hess—Session of 30 November 1945.
I. Reply to the request of the Tribunal of 28 November 1945.
II. Preparatory statement for the trial.
I
I, as Counsel for the Defendant Hess, answer the request of the Tribunal of 28 November 1945 as follows:
1. No formal objection is being raised by Defense against presentation and use of the expert opinions obtained by the Tribunal.
2. The Defense does not think the defendant Hess to be “verhandlungsfaehig” (in a state of health to be tried).
3. Material objections are being raised by the Defense, inasmuch as the expert opinion denies the competence of the defendant as a consequence of a mental disorder.
II
For the proceedings, I, as Counsel for the Defendant Hess, wish to make the following statement:
1. I move:
a. That a decision be made to adjourn the proceedings against the defendant temporarily.
b. That in case incapacity to be tried is asserted, proceedings in absentia against the defendant should not be carried on.
c. That in case my motion ad a is rejected, a super expert opinion be obtained from additional eminent psychiatrists.
2. I argue these motions as follows:
| ad 1-a: | The adjournment of the proceedings is necessary because of the unfitness of the defendant to follow them. |
In this respect the (medical) opinions state unanimously upon the questions asked by the Tribunal, that “the ability of the Defendant Hess is impaired to the extent that he cannot defend himself, nor oppose a witness, nor understand the details of evidence.” Even if the amnesia does not keep him from understanding what happens about him or to understand the course of the trial, this amnesia nevertheless has a disturbing effect on his defense.
The impairment of the defendant in his defense, through his amnesia, recognized by all opinions as a mental defect, has to be acknowledged as such, in view of the statements in the opinions of the Soviet, English and American Delegations of 14 November 1945, which designate the mental condition as one of a mixed kind, but more as one of a sort of mental abnormality. This will not make a pertinent defense possible for him (Hess).
In this respect, it does not have to be considered that the defendant is not mentally ill “in the literal meaning of the word” and that he can follow the proceedings. The question whether the defendant is at present incapable, as a result of the diminution of his “mental powers,” to understand all occurrences and to defend himself properly, has nothing to do with his mental derangement when committing the crime.
In the opinion of counsel, the defendant is in no case in a position to make himself understood or to understand argument, because he is impaired in his mental clarity through the loss of his memory and because he has completely lost the knowledge of previous events and of people of former acquaintance.
Since the expert establishment of his mental disorder which impairs the defendant in the full execution of his defense, makes proceedings against him inadmissible, the statement of the defendant that he thinks himself capable of being tried has no significance.
According to expert opinion, the impairment of the defendant cannot be removed within a measurable space of time. It is not sure whether treatment through Narco-Analysis, as proposed by the medical experts, will have the desired result. The defendant has refused to submit to this treatment only because he thinks of himself as capable of being tried and consequently not in need of such treatment. Furthermore, because he is opposed to any forcible influence upon the body, and finally, he is afraid of physical disturbances which would prevent him from participating in the trial if such method of treatment is used at this time. The proceedings would have to be dropped in case of an illness of long duration which excludes his fitness to be tried.
| ad 1-b: | According to Article 12 of the Statutes, the Tribunal has the right to proceed against a defendant in absentia if |
he, the defendant, cannot be located or if the Tribunal thinks it necessary, for other reasons, in the interests of justice. If the Tribunal, on the basis of convincing expert opinions, establishes that the defendant is not in a position to put up a pertinent defense and consequently decides not to proceed against him, proceedings in absentia, according to Article 12, could then only be carried on if this is in the interest of justice. It would not be compatible with objective justice, in case that actual proof of this fact is available, if the defendant is impeded by an impairment based upon health reasons, in personally standing up for his rights and in being present at the trial.
In proceedings which accuse the defendant of such serious crimes and possibly carry the death penalty, it would not be compatible with objective justice if he were personally denied the opportunity to look after his rights as stated in Article 16 of the Statutes. These rights provide for his self-defense. The possibility to “personally present evidence for one’s defense and to cross-examine each witness of the prosecution” is of such importance that any exclusion of such rights has to be considered an injustice toward the defendant. Proceedings in absentia can, under no circumstances, be accepted as a “fair trial.”
The same is true for the exclusion of the defendant from the rights which are granted him during the proceedings according to Article 24.
If the defendant is impaired in his ability to defend himself for the reasons of the expert opinions, and to the extent explained therein, then he is just as little in a position to give his Counsel the necessary information and to enable him to take care of the defense in his absence.
Since the Statutes establish the rights for the defense in this precise manner, it does not seem fair to withhold these from a defendant in a case when he is prevented from personally taking care of his defense during the proceedings. The rules in Article 12, regarding the proceedings against an absent defendant, have to be considered as an exception which should only be used against a defendant who tries to dodge in spite of his being in a position to be tried. The Defendant Hess has always been prepared to be tried in order to avoid proceedings in absentia, which he considers an injustice of the highest measure.
| ad 1-c: | In case the Court should not agree with the explanations and should not consider the statements of the expert |
opinion in the sense of the defense, and therefore come to a denial of the Application ad a, it seems necessary to obtain the super opinion because the opinions testify to the fact that the defendant is a psychopathic personality who suffers from hallucinations and still today shows, in the loss of memory, clear signs of a serious hysteria. If the Tribunal does not consider these sentiments alone as sufficient for the establishment of incapability to be tried, a more intensive examination would have to follow which would not be confined to an examination of only one or two hours on several days, but require a clinical observation.
The opinions, themselves, provide for another examination of the mental condition of the defendant, which seems to prove that the experts possibly have a “disturbance of the mental capacity” in mind if the condition of the defendant lasts and the Tribunal, against expectations, declares the defendant unfit to be tried and therewith incompetent under all circumstances.
/Signed/ von Rohrscheidt
Attorney-at-Law
Translator: Dr. H. v. V. Veith
C. ANSWER BY THE FOUR CHIEF PROSECUTORS
TO THE INTERNATIONAL MILITARY TRIBUNAL:
MATTER OF RUDOLF HESS
The undersigned representatives of their respective nations answer the request of the Tribunal of 28 November, 1945 respectfully as follows:
1. We do not challenge or question the report of the Committee.
2. It is our position that the defendant Rudolf Hess is fit to stand trial.
3. Observations may be filed by any of the undersigned based on their respective relationships to the subject matter.
[signed] R. RUDENKO
For the Union of Soviet Socialist Republics
[signed] C. DUBOST
For the Provisional Government of France
[signed] DAVID MAXWELL-FYFE
For the United Kingdom of Great Britain and Northern Ireland
[signed] ROBERT H. JACKSON
For the United States of America
29 November 1945
(1) Answer by the United States Chief of Counsel
TO THE INTERNATIONAL MILITARY TRIBUNAL:
The United States respectfully files the following observations on the application of RUDOLF HESS:
Hess’ condition was known to the undersigned representative of the United States immediately after his delivery to the Nurnberg prison and was the subject of a report by Major Douglas McG. Kelley of the Medical Corps of the United States Army, which report is attached hereto.
The report of Major Kelley and his recommendation for treatment were submitted to me and on October 20, 1945, I advised that “any treatment of this case involving the use of drugs which might cause injury to the subject is disapproved.” This was not because I disapproved of the treatment. I approve of the treatment and would insist on its being employed if the victim were a member of my own family. But I was of the opinion that the private administration of any kind of drug to Hess would be dangerous because if he should thereafter die, even of natural causes, it would become the subject of public controversy. This completely agreed with the opinion of the Security Officer, Colonel B. C. Andrus, whose report is attached.
In view of the statements contained in the medical report of the Commission and in view of the facts which I have recited, the United States must regard Hess as a victim, at most, of a voluntary amnesia and presenting no case for excuse from trial.
Respectfully submitted
[signed] Robert H. Jackson
Chief of Counsel for the United States.
29 November 1945.
[Enclosure]
HEADQUARTERS
INTERNAL SECURITY DETACHMENT
OFFICE US CHIEF OF COUNSEL
APO 403, US ARMY
16 October 1945
SUBJECT: Psychiatric Status of Internee.
TO: Commanding Officer, Internal Security Detachment.
1. Internee Rudolf HESS has been carefully studied since his admission to Nurnberg Prison.
2. On entry HESS manifested a spotty amnesia. The British psychiatrist accompanying him stated that from 4 October 43 to 4 February 45 HESS presented symptoms of total amnesia. From 4 February 45 to 12 July 45 he recovered, and is said to have made a statement that his previous amnesia was simulated. On 12 July 45 he again developed amnesia which has lasted to the present. Also while in England HESS claimed he was being poisoned and sealed up numerous samples of food, chocolate, medicine, etc. as “evidence” to be analyzed prior to his trials. Such behavior could be either simulated or a true paranoid reaction.
3. Present examination reveals a normal mental status with the exception of the amnesia. Attitude and general behavior are normal, mood and affect, while slightly depressed, are intact and normal. Sensorium is intact and insight is good. Content reveals vague paranoid trends, but there is no evidence of any actual psychosis. His reactions to his suspicions are not fixed—and delusioned trends—are distinctly spotty and disconnected. His reactions are those of an individual who has given up a simulated behavior pattern rather than those of the psychotic. Oddly enough his memory for this phase of behavior is excellent.
4. Special examinations with Rorschach cards indicate some neurotic patterns. They point to a highly schizoid personality with hysterical and obsessive components. Such findings are confirmed in the patient’s present reactions. He complains bitterly of “stomach cramps” which are obviously neurotic manifestations. He is over-dramatic in his actions presenting typical hysterical gestures, complaints and symptoms. His amnesia is at present limited to personal events concerning his history after joining the party. The amnesia however shifts in a highly suspicious fashion. Such amnesias may be hysterical in nature but in such cases do not change in depth from day to day and facts recently learned are not lost as with Hess.
5. In HESS’ case there is also the factor of his long amnesia in England. It is quite possible that he has suggested an amnesia to himself for so long that he partially believes in it. In a person of hysterical make-up such auto suggestion could readily produce an amnesic state. Also the “gain” or protection found in amnesia, fancied or real, would be a bar to its easy clearance. Finally a large conscious element may well be present.
6. In this case I believe all those factors are present. Treatment will have to be formulated along lines attacking the suggestive factors and overcoming conscious restraints. Hypnosis would be a value but probably chemical hypnosis will be required. Such narco-hypnosis and analysis require the use of intra venous drugs of the barbitol series, either sodium amytol or sodium pentothal. Such treatment is in general innocuous if proper precautions are taken. It must be borne in mind, however, that occasional accidents happen in any intravenous technique. With the drugs mentioned above rare fatalities have been reported although in more than 1000 such cases personally treated, I have never seen one.
7. Essentially the present situation is as follows:
a. Internee HESS is sane and responsible.
b. Internee HESS is a profound neurotic of the hysterical type.
c. His amnesia is of mixed etiology, stemming from auto suggestions and conscious malingering in a hysterical personality.
d. Treatment will be required if it is felt desirable to remove this amnesia.
e. Such treatment, though it cannot eliminate the conscious element is of great value in estimating its importance. With such techniques accurate estimates of malingering can be made. If this is a true amnesia, total recovery can be predicted.
f. Such treatment is essentially harmless except in extremely rare instances. In ordinary practice the value of the treatment far outweighs any of its hazards.
8. Clarification as to the desired degree of treatment in this case is requested.
[signed] DOUGLAS McG. KELLEY
Major, MC
1st Ind
HEADQUARTERS, INTERNAL SECURITY DETACHMENT, OFFICE US CHIEF OF COUNSEL—APO 403, U. S. ARMY—17 OCTOBER 1945
TO: Mr. Justice Jackson’s Office US Chief of Counsel
APO 403, U. S. Army
(Attention: Colonel Gill)
HESS believes or has pretended that the British attempted to poison him. Treatment with drugs might call forth the same suspicion or allegation against us by him. Undue alarm might be injurious to the patient.
/s/ B. C. Andrus
/t/ B. C. ANDRUS
Colonel Cav
Commandant
2nd Ind
OFFICE US CHIEF OF COUNSEL, EXECUTIVE OFFICE, APO, 403, U. S. ARMY
20 October 1945
TO: Headquarters, Internal Security Detachment.
Office US Chief of Counsel
Any treatment of this case involving the use of drugs which might cause injury to the subject is disapproved.
ROBT. J. GILL
Colonel, CMP
Executive
D. STATEMENT BY HESS TO THE TRIBUNAL CONCERNING HIS MEMORY
30 November 1945
Afternoon Session
“Mr. President: At the beginning of this afternoon’s proceedings, I handed my defense counsel a note stating that I am of the opinion that these proceedings could be shortened if I could speak briefly. What I have to say is as follows: In order to prevent any possibility of my being declared incapable of pleading—although I am willing to take part in the rest of the proceedings with the rest of them, I would like to make the following declaration to the Tribunal although I originally intended not to make this declaration until a later time. My memory is again in order. The reason why I simulated loss of memory was tactical. In fact, it is only that my power for concentration is slightly reduced but in conflict to that my capacity to follow the trial, my capacity to defend myself, to put questions to witnesses or even to answer questions—in these, my capacities are not influenced. I emphasize the fact that I bear full responsibility for everything that I have done, signed or have signed as co-signatory. My fundamental attitude that the Tribunal is not legally competent, is not affected by the statement I have just made. Hitherto, in my conversations with my official defense counsel, I have maintained my loss of memory. He was, therefore, acting in good faith when he asserted I had lost my memory.”
E. RULING OF THE TRIBUNAL
The ruling of the International Military Tribunal was announced orally by Lord Justice Lawrence, presiding, on 1 December 1945:
“The Tribunal has given careful consideration to the motion of Counsel for the Defendant Hess, and it has had the advantage of hearing full argument upon it both from the Defense and from the Prosecution. The Tribunal has also considered the very full medical reports, which have been made on the condition of the Defendant Hess, and has come to the conclusion that no grounds whatever exist for a further examination to be ordered.
“After hearing the statement of the Defendant Hess in court yesterday, and in view of all the evidence, the Tribunal is of the opinion that the Defendant Hess is capable of standing his trial at the present time, and the motion of Counsel for the Defense is, therefore, denied, and the trial will proceed.”
Chapter V
OPENING ADDRESS FOR THE UNITED STATES
The following address, opening the American case under Count I of the Indictment, was delivered by Justice Robert H. Jackson, Chief of Counsel for the United States, before the Tribunal on 21 November 1945:
May it please Your Honors,
The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant and so devastating, that civilization cannot tolerate their being ignored because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power ever has paid to Reason.
This tribunal, while it is novel and experimental, is not the product of abstract speculations nor is it created to vindicate legalistic theories. This inquest represents the practical effort of four of the most mighty of nations, with the support of seventeen more, to utilize International Law to meet the greatest menace of our times—aggressive war. The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils which leave no home in the world untouched. It is a cause of this magnitude that the United Nations will lay before Your Honors.
In the prisoners’ dock sit twenty-odd broken men. Reproached by the humiliation of those they have led almost as bitterly as by the desolation of those they have attacked, their personal capacity for evil is forever past. It is hard now to perceive in these miserable men as captives the power by which as Nazi leaders they once dominated much of the world and terrified most of it. Merely as individuals, their fate is of little consequence to the world.
What makes this inquest significant is that those prisoners represent sinister influence that will lurk in the world long after their bodies have returned to dust. They are living symbols of racial hatreds, of terrorism and violence, and of the arrogance and cruelty of power. They are symbols of fierce nationalisms and militarism, of intrigue and war-making which have embroiled Europe generation after generation, crushing its manhood, destroying its homes, and impoverishing its life. They have so identified themselves with the philosophies they conceived and with the forces they directed that any tenderness to them is a victory and an encouragement to all the evils which are attached to their names. Civilization can afford no compromise with the social forces which would gain renewed strength if we deal ambiguously or indecisively with the men in whom those forces now precariously survive.
What these men stand for we will patiently and temperately disclose. We will give you undeniable proofs of incredible events. The catalogue of crimes will omit nothing that could be conceived by a pathological pride, cruelty, and lust for power. These men created in Germany, under the Fuehrerprinzip, a National Socialist despotism equalled only by the dynasties of the ancient East. They took from the German people all those dignities and freedoms that we hold natural and inalienable rights in every human being. The people were compensated by inflaming and gratifying hatreds toward those who were marked as “scape-goats.” Against their opponents, including Jews, Catholics, and free labor the Nazis directed such a campaign of arrogance, brutality, and annihilation as the world has not witnessed since the pre-Christian ages. They excited the German ambition to be a “master race,” which of course implies serfdom for others. They led their people on a mad gamble for domination. They diverted social energies and resources to the creation of what they thought to be an invincible war machine. They overran their neighbors. To sustain the “master race” in its war-making, they enslaved millions of human beings and brought them into Germany, where these hapless creatures now wander as “displaced persons”. At length bestiality and bad faith reached such excess that they aroused the sleeping strength of imperiled civilization. Its united efforts have ground the German war machine to fragments. But the struggle has left Europe a liberated yet prostrate land where a demoralized society struggles to survive. These are the fruits of the sinister forces that sit with these defendants in the prisoners’ dock.
In justice to the nations and the men associated in this prosecution, I must remind you of certain difficulties which may leave their mark on this case. Never before in legal history has an effort been made to bring within the scope of a single litigation the developments of a decade, covering a whole Continent, and involving a score of nations, countless individuals, and innumerable events. Despite the magnitude of the task, the world has demanded immediate action. This demand has had to be met, though perhaps at the cost of finished craftsmanship. In my country, established courts, following familiar procedures, applying well thumbed precedents, and dealing with the legal consequences of local and limited events seldom commence a trial within a year of the event in litigation. Yet less than eight months ago today the courtroom in which you sit was an enemy fortress in the hands of German SS troops. Less than eight months ago nearly all our witnesses and documents were in enemy hands. The law had not been codified, no procedure had been established, no Tribunal was in existence, no usable courthouse stood here, none of the hundreds of tons of official German documents had been examined, no prosecuting staff had been assembled, nearly all the present defendants were at large, and the four prosecuting powers had not yet joined in common cause to try them. I should be the last to deny that the case may well suffer from incomplete researches and quite likely will not be the example of professional work which any of the prosecuting nations would normally wish to sponsor. It is, however, a completely adequate case to the judgment we shall ask you to render, and its full development we shall be obliged to leave to historians.
Before I discuss particulars of evidence, some general considerations which may affect the credit of this trial in the eyes of the world should be candidly faced. There is a dramatic disparity between the circumstances of the accusers and of the accused that might discredit our work if we should falter, in even minor matters, in being fair and temperate.
Unfortunately, the nature of these crimes is such that both prosecution and judgment must be by victor nations over vanquished foes. The worldwide scope of the aggressions carried out by these men has left but few real neutrals. Either the victors must judge the vanquished or we must leave the defeated to judge themselves. After the First World War, we learned the futility of the latter course. The former high station of these defendants, the notoriety of their acts, and the adaptability of their conduct to provoke retaliation make it hard to distinguish between the demand for a just and measured retribution, and the unthinking cry for vengeance which arises from the anguish of war. It is our task, so far as humanly possible, to draw the line between the two. We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well. We must summon such detachment and intellectual integrity to our task that this trial will commend itself to posterity as fulfilling humanity’s aspirations to do justice.
At the very outset, let us dispose of the contention that to put these men to trial is to do them an injustice entitling them to some special consideration. These defendants may be hard pressed but they are not ill used. Let us see what alternative they would have to being tried.
More than a majority of these prisoners surrendered to or were tracked down by forces of the United States. Could they expect us to make American custody a shelter for our enemies against the just wrath of our Allies? Did we spend American lives to capture them only to save them from punishment? Under the principles of the Moscow Declaration, those suspected war criminals who are not to be tried internationally must be turned over to individual governments for trial at the scene of their outrages. Many less responsible and less culpable American-held prisoners have been and will be turned over to other United Nations for local trial. If these defendants should succeed, for any reason, in escaping the condemnation of this Tribunal, or if they obstruct or abort this trial, those who are American-held prisoners will be delivered up to our continental Allies. For these defendants, however, we have set up an International Tribunal and have undertaken the burden of participating in a complicated effort to give them fair and dispassionate hearings. That is the best known protection to any man with a defense worthy of being heard.
If these men are the first war leaders of a defeated nation to be prosecuted in the name of the law, they are also the first to be given a chance to plead for their lives in the name of the law. Realistically, the Charter of this Tribunal, which gives them a hearing, is also the source of their only hope. It may be that these men of troubled conscience, whose only wish is that the world forget them, do not regard a trial as a favor. But they do have a fair opportunity to defend themselves—a favor which these men, when in power, rarely extended to their fellow countrymen. Despite the fact that public opinion already condemns their acts, we agree that here they must be given a presumption of innocence, and we accept the burden of proving criminal acts and the responsibility of these defendants for their commission.
When I say that we do not ask for convictions unless we prove crime, I do not mean mere technical or incidental transgression of international conventions. We charge guilt on planned and intended conduct that involves moral as well as legal wrong. And we do not mean conduct that is a natural and human, even if illegal, cutting of corners, such as many of us might well have committed had we been in the defendants’ positions. It is not because they yielded to the normal frailties of human beings that we accuse them. It is their abnormal and inhuman conduct which brings them to this bar.
We will not ask you to convict these men on the testimony of their foes. There is no count of the Indictment that cannot be proved by books and records. The Germans were always meticulous record keepers, and these defendants had their share of the Teutonic passion for thoroughness in putting things on paper. Nor were they without vanity. They arranged frequently to be photographed in action. We will show you their own films. You will see their own conduct and hear their own voices as these defendants reenact for you, from the screen, some of the events in the course of the conspiracy.
We would also make clear that we have no purpose to incriminate the whole German people. We know that the Nazi Party was not put in power by a majority of the German vote. We know it came to power by an evil alliance between the most extreme of the Nazi revolutionists, the most unrestrained of the German reactionaries, and the most aggressive of the German militarists. If the German populace had willingly accepted the Nazi program, no Stormtroopers would have been needed in the early days of the Party and there would have been no need for concentration camps or the Gestapo, both of which institutions were inaugurated as soon as the Nazis gained control of the German state. Only after these lawless innovations proved successful at home were they taken abroad.
The German people should know by now that the people of the United States hold them in no fear, and in no hate. It is true that the Germans have taught us the horrors of modern warfare, but the ruin that lies from the Rhine to the Danube shows that we, like our Allies, have not been dull pupils. If we are not awed by German fortitude and proficiency in war, and if we are not persuaded of their political maturity, we do respect their skill in the arts of peace, their technical competence, and the sober, industrious and self-disciplined character of the masses of the German people. In 1933, we saw the German people recovering prestige in the commercial, industrial and artistic world after the set-back of the last war. We beheld their progress neither with envy nor malice. The Nazi regime interrupted this advance. The recoil of the Nazi aggression has left Germany in ruins. The Nazi readiness to pledge the German word without hesitation and to break it without shame has fastened upon German diplomacy a reputation for duplicity that will handicap it for years. Nazi arrogance has made the boast of the “master race” a taunt that will be thrown at Germans the world over for generations. The Nazi nightmare has given the German name a new and sinister significance throughout the world which will retard Germany a century. The German, no less than the non-German world, has accounts to settle with these defendants.
The fact of the war and the course of the war, which is the central theme of our case, is history. From September 1st, 1939, when the German armies crossed the Polish frontiers, until September, 1942, when they met epic resistance at Stalingrad, German arms seemed invincible. Denmark and Norway, The Netherlands and France, Belgium and Luxembourg, the Balkans and Africa, Poland and the Baltic States, and parts of Russia, all had been overrun and conquered by swift, powerful, well-aimed blows. That attack upon the peace of the world is the crime against international society which brings into international cognizance crimes in its aid and preparation which otherwise might be only internal concerns. It was aggressive war, which the nations of the world had renounced. It was war in violation of treaties, by which the peace of the world was sought to be safeguarded.
This war did not just happen—it was planned and prepared for over a long period of time and with no small skill and cunning. The world has perhaps never seen such a concentration and stimulation of the energies of any people as that which enabled Germany twenty years after it was defeated, disarmed, and dismembered to come so near carrying out its plan to dominate Europe. Whatever else we may say of those who were the authors of this war, they did achieve a stupendous work in organization, and our first task is to examine the means by which these defendants and their fellow conspirators prepared and incited Germany to go to war.
In general, our case will disclose these defendants all uniting at some time with the Nazi Party in a plan which they well knew could be accomplished only by an outbreak of war in Europe. Their seizure of the German state, their subjugation of the German people, their terrorism and extermination of dissident elements, their planning and waging of war, their calculated and planned ruthlessness in the conduct of warfare, their deliberate and planned criminality toward conquered peoples, all these are ends for which they acted in concert; and all these are phases of the conspiracy, a conspiracy which reached one goal only to set out for another and more ambitious one. We shall also trace for you the intricate web of organizations which these men formed and utilized to accomplish these ends. We will show how the entire structure of offices and officials was dedicated to the criminal purposes and committed to use of the criminal methods planned by these defendants and their co-conspirators, many of whom war and suicide have put beyond reach.
It is my purpose to open the case, particularly under Count One of the Indictment, and to deal with the common plan or conspiracy to achieve ends possible only by resort to crimes against peace, war crimes, and crimes against humanity. My emphasis will not be on individual barbarities and perversions which may have occurred independently of any central plan. One of the dangers ever-present is that this trial may be protracted by details of particular wrongs and that we will become lost in a “wilderness of single instances.” Nor will I now dwell on the activity of individual defendants except as it may contribute to exposition of the common plan.
The case as presented by the United States will be concerned with the brains and authority back of all the crimes. These defendants were men of a station and rank which does not soil its own hands with blood. They were men who knew how to use lesser folk as tools. We want to reach the planners and designers, the inciters and leaders without whose evil architecture the world would not have been for so long scourged with the violence and lawlessness, and wracked with the agonies and convulsions, of this terrible war.