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D. MEMORANDUM FILED BY THE UNITED STATES
CHIEF OF COUNSEL
TO THE INTERNATIONAL MILITARY TRIBUNAL
The United States, by its Chief of Counsel, respectfully shows:
The order of the Tribunal, that “The charges in the indictment against Gustav Krupp von Bohlen shall be retained upon the docket of the Tribunal for trial hereafter, if the physical and mental condition of the Defendant should permit," requires the United States to make clear its attitude toward subsequent trials, which may have been misapprehended by the Tribunal, in order that no inference be drawn from its silence.
The United States never has committed itself to participate in any Four Power trial except the one now pending. The purpose of accusing organizations and groups as criminal was to reach, through subsequent and more expeditious trials before Military Government or military courts, a large number of persons. According to estimates of the United States Army, a finding that the organizations presently accused are criminal organizations would result in the trial of approximately 130,000 persons now held in the custody of the United States Army; and I am uninformed as to those held by others. It has been the great purpose of the United States from the beginning to bring into this one trial all that is necessary by way of defendants and evidence to reach the large number of persons responsible for the crimes charged without going over the entire evidence again. We, therefore, desire that it be a matter of record that the United States has not been, and is not by this order, committed to participate in any subsequent Four Power trial. It reserves freedom to determine that question after the capacity to handle one trial under difficult conditions has been tested. Respectfully submitted :
[signed] Robert H. Jackson
ROBERT H. JACKSON,
Chief of Counsel for the United States, 16 November 1945
E. MOTION BY THE SOVIET, FRENCH, AND AMERICAN CHIEF PROSECUTORS TO DESIGNATE ALFRIED
KRUPP AS A DEFENDANT
TO THE INTERNATIONAL MILITARY TRIBUNAL:
Upon the Indictment, the motion of Gustav Krupp von Bohlen und Halbach and the answers thereto, and all proceedings had
thereunder, the Committee of Prosecutors created under the Charter hereby designates Alfried Krupp von Bohlen und Halbach as a defendant and respectfully moves that the Indictment be amended by adding the name of Alfried Krupp von Bohlen und Halbach as a defendant, and by the addition of appropriate allegations in reference to him in the Appendix A thereof. It also moves that the time of Alfried Krupp be shortened from thirty days to December 2, 1945. For this purpose, the Committee of Prosecutors adopts and ratifies the Answer filed on behalf of the United States on November 12, 1945 in response to the Gustav Krupp von Bohlen und Halbach motion, and the motion made by Robert H. Jackson in open Court on behalf of the United States of America, The Soviet Union, and The Provisional Government of France. This motion is authorized by a resolution adopted at a meeting of the Committee of Prosecutors held on November 16, 1945.
[signed] Pokrovsky For the Union of Soviet Socialist Republics
[signed] Francois de Menthon For the Provisional Government of France
[signed] Robert H. Jackson
For the United States of America. 16 November 1945.
F. RULING OF THE TRIBUNAL REJECTING THE PROSECUTION'S MOTION TO NAME ALFRIED KRUPP
AS A DEFENDANT
INTERNATIONAL MILITARY TRIBUNAL
In session 1500 hours THE PRESIDENT: The motion to amend the indictment by adding the name of Alfried Krupp has been considered by the Tribunal in all its aspects and the application is rejected. The Tribunal will now adjourn. (Whereupon at 1505 the Tribunal adjourned.)
3. MARTIN BORMANN
As the day of the trial approached, Martin Bormann, although named as a defendant in the Indictment, had not yet been apprehended despite the efforts of numerous special investigators. On 17 November 1945 the Tribunal requested the views of the prosecution on the question of trial in absentia. Sir David MaxwellFyfe, Deputy Chief Prosecutor of Great Britain, reviewed the in
formation available and, on behalf of the United States and France as well as Great Britain, stated that: "The prosecution cannot say that the matter is beyond a probability that Bormann is dead. There is still the clear possibility that he is alive." Notice had been publicly given, in the manner prescribed by the Tribunal, that Bormann had been named a defendant, and it was therefore suggested that the case fell within Article 12 of the Charter authorizing trial in absentia. The Soviet representative expressed concurrence; whereupon Lord Justice Lawrence, presiding, orally announced the Tribunal's ruling, on the same date:
“The Tribunal has decided that, in pursuance of Article 12 of the Charter, it will try the Defendant Bormann in his ab-' sence, and it announces that counsel for the Defendant Bor
mann will be appointed to defend him." Thereafter, the counsel named to defend Bormann moved for postponement of the proceedings against the defendant. The Tribunal announced on 22 November through Lord Justice Lawrence, presiding, that:
in view of the fact that the provisions of the Charter and the Tribunal's rule of procedure have been strictly carried out in the notices which have been given, and the fact that counsel for Bormann will have ample time before they are called upon to present defense on his behalf, the motion is denied.”
4. ERNST KALTENBRUNNER
On 18 November 1945, two days before the opening of the trial, Kaltenbrunner suffered a spontaneous subarachanoid hemorrhage and was taken to the hospital for treatment. He remained there until 6 December, when he was returned to the jail. He attended the 10 December session of the Tribunal and was in court for several days thereafter, but his condition deteriorated so that it was necessary to return him to the hospital for further treatment. Medical opinion expects at this writing (23 January), that he will be required to remain under hospital care for a considerable period.
On 2 January Kaltenbrunner's counsel, Dr. Kauffmann, requested the Tribunal to postpone the case against his client because of his illness. The Tribunal ruled (1) that the prosecution should proceed with any evidence which it proposed to direct against the criminality of organizations with which Kaltenbrunner was connected, (2) that any prosecution evidence directed against Kaltenbrunner as an individual should be withheld until 685964-46--8
the prosecution reached that part of its case in which it had planned to trace the responsibility of individual defendants, and (3) that Kaltenbrunner's case should properly be left until the end of this section of the evidence. If at that time the defendant should be still unable to be present in court, the Tribunal ruled that "the evidence will have to be given in his absence."
A closed session followed at which the Tribunal heard both the prosecution and defense counsel, as a result of which the Tribunal modified its ruling. Since the prosecution's evidence was so inextricably mingled that it was impossible to divide it between that which bore against Kaltenbrunner as an individual and that which bore against the organizations which he headed, the Tribunal ruled that it would hear the prosecution's evidence in its entirety. Counsel for Kaltenbrunner, however, was given the privilege of cross-examining at a later date any witnesses which the prosecution might call against Kaltenbrunner. The Tribunal pointed out that defense counsel would also, of course, have an opportunity to deal with any documentary evidence against Kaltenbrunner when the time came for the presentation of the defense case.
5. JULIUS STREICHER
Counsel for Streicher orally requested the Tribunal, on 15 November 1945, to appoint a commission to make a psychiatric examination of the defendant. This was requested for the Defense Counsel's "own protection”, although the defendant thought himself normal and did not wish an examination. The Tribunal directed the Defense Counsel to make his motion in writing. The Soviet prosecutor suggested to the Tribunal the desirability of having such an examination, if it were necessary at all, while medical experts from the Soviet Union remained in Nurnberg. Subsequently a panel of three medical experts examined Streicher and reported that he was fit to stand trial. The Tribunal thereupon ruled, Lord Justice Lawrence making the announcement orally in court on 22 November, that
the Tribunal wishes me to announce the decision on the application made on behalf of the Defendant Julius Streicher by his counsel that his condition should be examined. It has been examined by three medical experts on behalf of the Tribunal and their report has been submitted to and considered by the Tribunal; and it is as follows:
"'1. The Defendant Julius Streicher is sane.
“ '2. The Defendant Julius Streicher is fit to appear before the Tribunal, and to present his defense.
“'3. It being the unanimous conclusion of the examiners that Julius Streicher is sane, he is for that reason capable of understanding the nature and policy of his acts during the period of time covered by the indictment.'
“The Tribunal accepts the report of the medical experts and the trial against Julius Streicher will, therefore, proceed.”
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
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