B

To: The International Military Tribunal.

The undersigned, having seen and examined Rudolf Hess, have come to the following conclusions:

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 delusions of poisoning and other similar paranoid ideas.

Partly as a reaction to the failure of his mission these abnormal ideas got worse and led to a suicidal attempt.

In addition, he has a marked hysterical tendency, as shown by 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 has 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 decide to proceed with the Trial, the question should afterwards be reviewed on psychiatric grounds.

/s/J. R. REES/s/GEORGE RIDDOCH
M.D., F.R.C.P.M.D., F.R.C.P.
/s/MORAN
M.D., F.R.C.P.

19 November 1945.

C
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 15 and 19 November 1945 in his cell in the Military Prison in Nuremberg.

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 14 and 16 November 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 behavior 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/DR. JEAN DELAY
Professor of Psychiatry at the Faculty
of Medicine in Paris
/s/DR. NOLAN D. C. LEWIS
Professor of Psychiatry, Columbia University
/s/DR. D. EWEN CAMERON
Professor of Psychiatry, McGill University
/s/COL. PAUL L. SCHROEDER
A.U.S. Neuropsychiatric Consultant

REPORT OF PRISON PSYCHOLOGIST ON
MENTAL COMPETENCE OF DEFENDANT HESS[[18]]

17 August 1946

SUBJECT:Competence of Defendant Rudolf Hess
TO:General Secretary, International Military Tribunal.

1. In compliance with the Tribunal’s request, the following facts and studied opinions are submitted with respect to the competence of Rudolf Hess, based on my continual tests and observations from October 1945 to the present time, in the capacity of prison psychologist:

2. Amnesia at beginning of trial. There can be no doubt that Hess was in a state of virtually complete amnesia at the beginning of the trial. The opinions of the psychiatric commissions in this regard and with respect to his sanity have only been substantiated by prolonged subsequent observation.

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.