II. ARRAIGNMENT
Extract from the official Transcript of Military Tribunal I in the matter of the United States of America vs. Karl Brandt et al., defendants, sitting at Nuernberg, Germany, on 21 November 1946, Judge Beals presiding.
Presiding Judge Beals: We will now proceed to arraign the defendants on the cause now pending before this Tribunal. As the names of the defendants are called each defendant will stand, and will remain standing until told to be seated. Mr. Secretary General of the Tribunal will call the roll of the defendants.
The Secretary General: Karl Brandt, Siegfried Handloser, Paul Rostock, Oskar Schroeder, Karl Genzken, Karl Gebhardt, Kurt Blome, Rudolf Brandt, Joachim Mrugowsky, Helmut Poppendick, Wolfram Sievers, Gerhard Rose, Siegfried Ruff, Hans Wolfgang Romberg, Viktor Brack, Hermann Becker-Freyseng, Georg August Weltz, Konrad Schaefer, Waldemar Hoven, Wilhelm Beiglboeck, Adolf Pokorny, Herta Oberheuser, Fritz Fischer. (As their names are called, the defendants rise.)
If the Honorable Tribunal please, all of the defendants are in the dock.
Presiding Judge Beals: The defendants will be seated.
The counsel for the prosecution will now proceed with the arraignment of the defendants.
[Here Brigadier General Taylor read the indictment in full. See pp. [8]-[17].]
Presiding Judge Beals: I shall now call upon the defendants to plead guilty or not guilty to the charges against them. Each defendant, as his name is called, will stand and speak into the microphone. At this time there will be no arguments, speeches, or discussion of any kind. Each defendant will simply plead either guilty or not guilty to the offenses with which he is charged by the indictment.
Karl Brandt.
Dr. Pelckmann: Mr. Chairman, before the defendant pleads guilty or not guilty, may I say a word? I am defense counsel for the defendant Schaefer, number 18.
Presiding Judge Beals: For which defendant?
Dr. Pelckmann: Schaefer, number 18.
Presiding Judge Beals: We are now receiving the plea of the defendant Karl Brandt. You do not represent him as counsel, do you?
Dr. Pelckmann: No.
Presiding Judge Beals: Then I see no reason for counsel for another defendant making any remarks at this time.
Dr. Pelckmann: May I speak before the defendant Schaefer speaks? A formal objection.
Presiding Judge Beals: When the name of the defendant Schaefer is called, you may address the Court.
Karl Brandt, are you represented by counsel in this proceeding?
Defendant Karl Brandt: Yes.
Presiding Judge Beals: How do you plead to the charges and specifications and each thereof set forth in the indictment against you, guilty or not guilty?
Defendant Handloser: Yes.
Presiding Judge Beals: Be seated.
Siegfried Handloser, are you represented by counsel in this cause?
Defendant Handloser: No, I have no counsel yet.
Presiding Judge Beals: Do you desire that the Tribunal appoint counsel for you?
Defendant Handloser: I hope that today or tomorrow I may receive an affirmative answer from a defense counsel.
Presiding Judge Beals: Are you at this time ready to plead to the indictment, guilty or not guilty?
Defendant Handloser: Yes.
Presiding Judge Beals: How do you plead to the charges and specifications and each thereof set forth in the indictment against you, guilty or not guilty?
Defendant Handloser: Not guilty.
Presiding Judge Beals: Be seated.
[At this point the defendants Paul Rostock, Oskar Schroeder, Karl Genzken, Karl Gebhardt, Kurt Blome, Rudolf Brandt, Joachim Mrugowsky, Helmut Poppendick, Wolfram Sievers, Gerhard Rose, Siegfried Ruff, Hans Wolfgang Romberg, Viktor Brack, Hermann Becker-Freyseng and Georg August Weltz were arraigned. All were represented by counsel. All pleaded not guilty to the indictment.]
Dr. Pelckmann: Your Honor, may I speak?
Presiding Judge Beals: What is the purpose of the remarks you desire to make?
Dr. Pelckmann: I should like to object to the indictment. I should like to say that in my opinion, as far as Schaefer is concerned, the indictment does not conform to Ordinance No. 7. I can explain that.
Presiding Judge Beals: How much time do you desire to present your argument?
Dr. Pelckmann: Three minutes.
Presiding Judge Beals: You may proceed. First, have you filed in the proceeding any written notice of the objection to the indictment and served it upon the prosecutor?
Dr. Pelckmann: I have not had the indictment long enough. I have just had the written material for 2 days. What I have to say I could submit in writing later. Because of the brief time, I ask to be allowed to make a brief statement now.
Presiding Judge Beals: You may make a brief statement and submit argument in support of your objection within 5 days.
Dr. Pelckmann: Very well. May I now say something?
Presiding Judge Beals: You may proceed for 3 minutes.
Dr. Pelckmann: Ordinance No. 7, in Article IV (a), prescribes the following according to the English text: “The indictment shall state the charges plainly, concisely and with sufficient particulars to inform defendant of the offenses charged.” Schaefer is charged only on one count, count two (G). Experiments with sea-water in Dachau are charged against 12 defendants. In two sentences the indictment goes on to say that the 12 persons who are then named are charged with special responsibility for these crimes and participation in them. I am of the opinion that this does not contain sufficient particulars. “Responsibility” and “participation” are legal concepts. There is no evidence of “sufficient particulars,” which implies details.
The indictment, in my opinion, must give facts to indicate how and why each one of these 12 defendants who, ostensibly, participated in these experiments, is responsible and participated. My client cannot tell what the nature of his participation is supposed to have been.
The indictment says, in count one, number 2, that all defendants were principals in, accessories to, ordered, abetted, took a consenting part in, and were connected with plans and enterprises involving the commission of war crimes and crimes against humanity. Those also are only legal concepts.
Presiding Judge Beals: You may file a written brief in support of your position.
Dr. Pelckmann: I should like to add, without the knowledge of the indictment, my client is not ready to answer the question as to whether he is guilty or not guilty.
Presiding Judge Beals: You will serve a copy of your brief upon the prosecution and file it with the Secretary General.
Dr. Pelckmann: Very well, your Honor.
Presiding Judge Beals: In connection with this matter, General Taylor, do you desire to make any remarks or suggestions?
Brigadier General Taylor: Your Honor, needless to say, we have no objection to the making of this motion or the filing of this brief. It is needless to say, also, that we think the indictment quite adequately specifies the date, place, and type of experiment charged. The defendant’s connection with it is better known to the defendant than to anyone else. There is no reason why he should not enter his plea at this time.
Judge Sebring: That would not go to the jurisdictional aspect of the indictment, but it would go to the question of particulars. The consideration is whether or not upon the showing of the motion, more particulars as to the charges specified, should be included. Do you understand my point?
Brigadier General Taylor: Yes, your Honor. That is what I understood. The prosecution will consider the motion, and if need be, submit particulars, although we think the indictment is adequate enough. We think there is no challenge of the jurisdiction. The defendant should be required to promptly plead.
Judge Crawford: How do you plead to the charges against you?
Defendant Schaefer: Not guilty.
Presiding Judge Beals: Be seated.
[At this point the balance of the defendants: Waldemar Hoven, Wilhelm Beiglboeck, Adolf Pokorny, Herta Oberheuser and Fritz Fischer were arraigned. All were represented by counsel. All pleaded not guilty to the indictment.]
Dr. Servatius: Servatius for the defendant Karl Brandt. Your Honor, may I make an application regarding the submission of documents by the prosecution?
Presiding Judge Beals: You may state your application.
Dr. Servatius: Your Honor, I ask the Tribunal to instruct the prosecution that the documents be submitted to the defense in time, the documents on which the charge is based. This would make the proceedings easier and give the defense an opportunity to examine the documents in time, and to obtain counterproof.
In the first trial before the International Military Tribunal, we were given a list of documents with the indictment; although these documents were not enclosed, we could look at them and we could work on them. Up to now we have nothing on which we can build our defense. In other words, on the 9th of December, we will have proceeded no further than today, and we will not be able to advise our clients.
Presiding Judge Beals: You may be seated and we will hear from the prosecution, Brigadier General Telford Taylor.
Brigadier General Taylor: Your Honor, the counsel for the defense who has just spoken is thoroughly familiar with the procedures used in the prior case. The prosecution in this case plans to follow the same procedures and give the defense counsel the same opportunities and, if possible, more. The Defense Information Center, which is the place where the documents have in the past been made available, will be supplied in advance with copies of the documents on which our evidence is based. I would suggest, your Honor, that after all counsel for the defense are here that it would be most useful if there be a meeting between representatives of the prosecution and the defense so that procedures can be developed. But at the moment only half of the counsel for the defense are here and it would be economical if these matters could be arranged after they are all present.
Dr. Servatius: Your Honor, may I ask one question? May I add one thing, that the documents be given to us in German. In the previous trial, there was difficulty at the beginning because we got them in English.
Presiding Judge Beals: I believe if counsel for the defense will refer to the rules promulgated by this Tribunal on 2 November 1946, you will see that a requirement is made that all such matters be submitted in a language that is understood by each of the defendants.
Dr. Servatius: Yes, but for technical reasons that was not always done. There were great difficulties. The conferences with the prosecution will make it possible to eliminate the difficulties. If it is not possible, I will address the Court again.
Presiding Judge Beals: Do you have anything further, General Taylor?
Brigadier General Taylor: Your Honor, the prosecution merely wishes to note that it has filed with the Secretary General a motion to amend the indictment in paragraph 8 of count two and paragraph 13 of count three, by changing 1943 to 1944. The motion has been filed with the Secretary General and copies of the motion are in German and are in the hands of defense counsel.
Presiding Judge Beals: How many of the defendants are concerned with the amendment to the indictment? My point is that if the—
Mr. McHaney: If the Tribunal please, the amendment occurs first in paragraph 8 on page 14 of the indictment and it affects only two of the defendants; namely, Blome and Rudolf Brandt. The amendment is also made in paragraph 13 because the same facts are there charged as a crime against humanity. In paragraph 13 only the same two defendants are involved; that is, defendants Blome and Rudolf Brandt.
Presiding Judge Beals: What are the particulars of the amendment?
Mr. McHaney: The only change made by the amendment is to say the date January 1944 for the date January 1943; in other words, it extends the period covered by the crime for 1 year. The date 1943 was inserted by mistake in the indictment as filed with the Tribunal.
Presiding Judge Beals: Are these two defendants represented by counsel here present this morning?
Mr. McHaney: I think that Rudolf Brandt answered “Yes”.
Defendant Blome: Yes, your Honor.
Presiding Judge Beals: Has this motion been served upon counsel for these two defendants?
Mr. McHaney: Your Honor, my understanding is that the motion for amendment was filed with the Secretary General. If we understand the rules correctly, the Secretary General then serves it upon the defendants.
Presiding Judge Beals: I was just asking for information whether they had received copies of the motion.
Mr. McHaney: That I don’t know. Yes, the counsel for these defendants say “Yes”.
Presiding Judge Beals: Does counsel for defendant Blome raise any objection to the amendment of the indictment?
Dr. Sauter: No.
Dr. Kauffmann: Kauffmann for Rudolf Brandt. I have no objection to the change.
Presiding Judge Beals: You represent Rudolf Brandt?
Dr. Kauffmann: Yes.
Presiding Judge Beals: Well, the other defendant affected is defendant Blome, I understand. Is he represented here?
Dr. Sauter: Dr. Sauter for the defendant Blome. We don’t have any objection.
Presiding Judge Beals: The indictment will be amended in accordance with the motion.
Is it agreeable to counsel for these two defendants that the arraignment as to them upon this count which has just been amended be considered as pleas to the count as amended now—their pleas of “Not Guilty”?
Dr. Sauter: Yes.
Dr. Kauffmann: Yes.
Presiding Judge Beals: These matters will appear in the records of the Tribunal. The pleas of the defendants will all be entered in the minutes of the Tribunal.
III. STATEMENT OF THE TRIBUNAL ON THE ORDER OF TRIAL AND RULES OF PROCEDURE, 9 DECEMBER 1946[[6]]
Presiding Judge Beals: I have a statement which I desire to make for the benefit of the prosecution, defendants, and all concerned: Before opening the trial of Case No. 1, The United States of America against Karl Brandt, et al., there are certain matters which the Tribunal desires to call to the attention of the counsel for the prosecution and the counsel for the defendants.
1. The prosecution may be allowed, for the purpose of making the opening statement in this case, time not to exceed one trial day. This time may be allocated by the chief prosecutor, between himself and any of his assistants, as he desires.
2. When the prosecution has rested its case, defense counsel will be allowed two trial days in which to make their opening statements, and which will comprehend the entire theory of their respective defenses. The time allocated will be divided between the different defense counsel, as they may themselves agree. In the event the defense counsel cannot agree, the Tribunal will allocate the time, not to exceed 30 minutes to each defendant.
3. The prosecution shall, not less than 24 hours before it desires to offer any record or document or writing in evidence as part of its case-in-chief, file with the Defense Information Center not less than one copy of such record, document, or writing for each of the counsel for defendants, such copies to be in the German language. The prosecution shall also deliver to the Defense Information Center at least four copies thereof in the English language.
4. When the prosecution or any defendant offers a record, document, or any other writing, or a copy thereof, in evidence, there shall be delivered to the Secretary General in addition to the original document or other instrument in writing so offered for admission in evidence, six copies of the document. If the document is written or printed in a language other than English there shall also be filed with the copies of the document above referred to six copies of an English translation of the document. If such document is offered by any defendant, suitable facilities for procuring English translations of that document shall be made available.
5. At least 24 hours before a witness is called to the stand, either by the prosecution or by any defendant, the party who desires to interrogate the witness shall deliver to the Secretary General an original and six copies of a memorandum which shall disclose: (1) the name of the witness; (2) his nationality; (3) his residence or station; (4) his official rank or position; (5) whether he is called as an expert witness or as a witness to testify to facts, and if the latter, a prepared statement of the subject matter on which the witness will be interrogated. When the prosecution prepares such a statement in connection with the witness whom it desires to call, at the time of the filing of this statement, two additional copies thereof shall be delivered to the Defense Information Center. When a defendant prepares such a statement concerning a witness whom it desires to call, the defendant shall at the same time as the copies are filed with the Secretary General deliver one additional copy to the prosecution.
6. When either the prosecution or a defendant desires the Tribunal to take judicial notice of any official Government documents or reports of the United Nations, including any action, ruling or regulation of any committee, board, or counsel, heretofore established by or in the Allied Nations for the investigation of war crimes, or any record made by, or the findings of, any military or other tribunal, this Tribunal may refuse to take judicial notice of such documents, rules, or regulations, unless the party proposing asks this Tribunal to notice such documents, rules, or regulations judicially, and places a copy thereof in writing before the Tribunal.
This Tribunal has learned with satisfaction of the procedure adopted by the prosecution with the intention of furnishing to the defense counsel information concerning the writings or documents which the prosecution expects to offer in evidence for the purpose of affording the defense counsel information to help them prepare their respective defense to the indictments. The desire of the Tribunal is that this be made available to the defendants so as to aid them in the presentation of their respective defense.
The United States of America having established this Military Tribunal I, pursuant to law, through properly empowered military authorities, and the defendants having been brought before Military Tribunal I pursuant to the indictment filed 25 October 1946 in the Office of the Secretary General of the Military Tribunal at Nuernberg, Germany by an officer of the United States Army, regularly designated as Chief of Counsel for War Crimes, acting on behalf of the United States of America, pursuant to appropriate military authority, and the indictment having been served upon each defendant for more than 30 days prior to this date, and a copy of the indictment in the German language having been furnished to each defendant and having been in his possession more than 30 days and each defendant having had ample opportunity to read the indictment, and having regularly entered his plea of “not guilty” to the indictment, the Tribunal is ready to proceed with the trial.
This Tribunal will conduct the trial in accordance with controlling laws, rules, and regulations, and with due regard to appropriate precedents in a sincere endeavor to insure both to the prosecution and to each and every defendant an opportunity to present all evidence of an appropriate value bearing upon the issues before the Tribunal; to this end, that under law and pending regulations impartial justice may be accomplished.
The trial, of course, will be a public trial, not one behind closed doors; but, because of limited facilities available, the Tribunal must insist that the number of spectators be limited to the seating capacity of the courtroom. Passes will therefore be issued by the appropriate authorities to those who may enter the courtroom. The Tribunal will insist that good order be at all times maintained, and appropriate measures will be taken to see that this rule is strictly enforced.
For the information of all concerned, the Tribunal announces that hearings will be held each day this week commencing at 9:30 o’clock through Friday. The Tribunal will reconvene at 9:30 o’clock, Monday, 16 December 1946, and will hold sessions every day of that week including Saturday, on which day, however, the Tribunal will recess until 9:30 o’clock, Thursday, 2 January 1947, when the Tribunal will convene at the usual time.
[6] Tr. pp. 9-11.
IV. OPENING STATEMENT OF THE PROSECUTION BY
BRIGADIER GENERAL TELFORD TAYLOR,
9 DECEMBER 1946.[[7]]
The defendants in this case are charged with murders, tortures, and other atrocities committed in the name of medical science. The victims of these crimes are numbered in the hundreds of thousands. A handful only are still alive; a few of the survivors will appear in this courtroom. But most of these miserable victims were slaughtered outright or died in the course of the tortures to which they were subjected.
For the most part they are nameless dead. To their murderers, these wretched people were not individuals at all. They came in wholesale lots and were treated worse than animals. They were 200 Jews in good physical condition, 50 gypsies, 500 tubercular Poles, or 1,000 Russians. The victims of these crimes are numbered among the anonymous millions who met death at the hands of the Nazis and whose fate is a hideous blot on the page of modern history.
The charges against these defendants are brought in the name of the United States of America. They are being tried by a court of American judges. The responsibilities thus imposed upon the representatives of the United States, prosecutors and judges alike, are grave and unusual. It is owed, not only to the victims and to the parents and children of the victims, that just punishment be imposed on the guilty, but also to the defendants that they be accorded a fair hearing and decision. Such responsibilities are the ordinary burden of any tribunal. Far wider are the duties which we must fulfill here.
These larger obligations run to the peoples and races on whom the scourge of these crimes was laid. The mere punishment of the defendants, or even of thousands of others equally guilty, can never redress the terrible injuries which the Nazis visited on these unfortunate peoples. For them it is far more important that these incredible events be established by clear and public proof, so that no one can ever doubt that they were fact and not fable; and that this Court, as the agent of the United States and as the voice of humanity, stamp these acts, and the ideas which engendered them, as barbarous and criminal.
We have still other responsibilities here. The defendants in the dock are charged with murder, but this is no mere murder trial. We cannot rest content when we have shown that crimes were committed and that certain persons committed them. To kill, to maim, and to torture is criminal under all modern systems of law. These defendants did not kill in hot blood, nor for personal enrichment. Some of them may be sadists who killed and tortured for sport, but they are not all perverts. They are not ignorant men. Most of them are trained physicians and some of them are distinguished scientists. Yet these defendants, all of whom were fully able to comprehend the nature of their acts, and most of whom were exceptionally qualified to form a moral and professional judgment in this respect, are responsible for wholesale murder and unspeakably cruel tortures.
It is our deep obligation to all peoples of the world to show why and how these things happened. It is incumbent upon us to set forth with conspicuous clarity the ideas and motives which moved these defendants to treat their fellow men as less than beasts. The perverse thoughts and distorted concepts which brought about these savageries are not dead. They cannot be killed by force of arms. They must not become a spreading cancer in the breast of humanity. They must be cut out and exposed, for the reason so well stated by Mr. Justice Jackson in this courtroom a year ago—
“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.”
To the German people we owe a special responsibility in these proceedings. Under the leadership of the Nazis and their war lords, the German nation spread death and devastation throughout Europe. This the Germans now know. So, too, do they know the consequences to Germany: defeat, ruin, prostration, and utter demoralization. Most German children will never, as long as they live, see an undamaged German city.
To what cause will these children ascribe the defeat of the German nation and the devastation that surrounds them? Will they attribute it to the overwhelming weight of numbers and resources that was eventually leagued against them? Will they point to the ingenuity of enemy scientists? Will they perhaps blame their plight on strategic and military blunders by their generals?
If the Germans embrace those reasons as the true cause of their disaster, it will be a sad and fatal thing for Germany and for the world. Men who have never seen a German city intact will be callous about flattening English or American or Russian cities. They may not even realize that they are destroying anything worthwhile, for lack of a normal sense of values. To reestablish the greatness of Germany they are likely to pin their faith on improved military techniques. Such views will lead the Germans straight into the arms of the Prussian militarists to whom defeat is only a glorious opportunity to start a new war game. “Next time it will be different.” We know all too well what that will mean.
This case, and others which will be tried in this building, offer a signal opportunity to lay before the German people the true cause of their present misery. The walls and towers and churches of Nuernberg were, indeed, reduced to rubble by Allied bombs, but in a deeper sense Nuernberg had been destroyed a decade earlier, when it became the seat of the annual Nazi Party rallies, a focal point for the moral disintegration in Germany, and the private domain of Julius Streicher. The insane and malignant doctrines that Nuernberg spewed forth account alike for the crimes of these defendants and for the terrible fate of Germany under the Third Reich.
A nation which deliberately infects itself with poison will inevitably sicken and die. These defendants and others turned Germany into an infernal combination of a lunatic asylum and a charnel house. Neither science, nor industry, nor the arts could flourish in such a foul medium. The country could not live at peace and was fatally handicapped for war. I do not think the German people have as yet any conception of how deeply the criminal folly that was nazism bit into every phase of German life, or of how utterly ravaging the consequences were. It will be our task to make these things clear.
These are the high purposes which justify the establishment of extraordinary courts to hear and determine this case and others of comparable importance. That murder should be punished goes without the saying, but the full performance of our task requires more than the just sentencing of these defendants. Their crimes were the inevitable result of the sinister doctrines which they espoused, and these same doctrines sealed the fate of Germany, shattered Europe, and left the world in ferment. Wherever those doctrines may emerge and prevail, the same terrible consequences will follow. That is why a bold and lucid consummation of these proceedings is of vital importance to all nations. That is why the United States has constituted this Tribunal.