1947-01-10, #2: Doctors' Trial (late morning)

JUDGE BEALS: Is there any further cross-examination of this witness by defense counsel?

DR. FLEMMING (Counsel for the Defendant Mrugowsky):

Q: Witness, you formerly said that during the operations was a lack of asepsis. Well you please describe to the Tribunal why you conclude such fact?

A: Before the operations all these matters seemed to have been done correctly. After the operations there was gross negligence; bandages were not sterilized and the instruments were not sterilized either. The patients were left in terrible rooms. They were crowded together without any proper medical aid, without any care whatsoever. Because of the blackouts the window shutters had been closed during the right and the air in the rooms was terrible.

Q: Was there a difference between the operations in the operation room and in the bunker in this connection?

A: The operations which were carried out in the bunker were carried out at a time when conditions in the bunker were, of course, horrible. They had nothing whatsoever to do with an operating room.

Q: How many persons were infected with the individual kinds of cultures infected with streptococci and other cultures like that?

A: As far as I know, 13 bone transplantations were carried out. 1 nerve operation and 6 anaerobes, and the further ones can be divided into muscle operations and infecting operations with streptococci and staphylococci.

Q: You misunderstood me witness. What I meant was that during the anaerobe infections, how many persons were infected with the different kinds of cultures?

A: In my opinion, ** anaerobe operations.

Q: Six persons?

A: Yes, six persons.

Q: With anaerobes?

A: With anaerobes.

Q: And how about streptococci and others?

A: I have just explained to you that the further total number of 74 was divided between streptococci and staphylococci and muscle operations.

Q: I should like to know from you how the arc divided--how many persons were infected with each?

A: Exactly how many muscle and how many streptococci were carried out I cannot state in detail.

Q: You cannot state that. Did you hear, witness, whether during these operations the wounds were artificially infected with pieces of glass, pieces of wood, and other particles?

A: During the dressings we saw that with the flowing pus there were also other bodies.

Q: Did. you see, in the case of Weronika Kraska, anything like that happening?

A: No.

Q: Thank you, I have no further questions.

JUDGE BEALS: Is there any further cross-examination of this witness on the part of any defense counsel? There being none offered, is there any redirect examination by the Prosecution?

MR. HARDY: The Prosecution has no further questions to put to this witness, Your Honor.

JUDGE BEALS: There being no further examination of the witness, the witness may be excused.

MR. McHANEY: If the Tribunal please, we have a number of points to clear up and some what might be termed miscellaneous documents to put in before proceeding to the charge of Euthanasia in the Indictment. Perhaps the first thing we might dispense with is the statement made by Defense Counsel for Pokorny at the conclusion of yesterday's session, that the Prosecution was interested in interrogating a certain witness which he had requested. That matter has been straightened out to the satisfaction of both the Prosecution and Defense, and resulted from a misunderstanding on the part of the gentleman in charge of the Defense Information Center. As a matter of fact, the Prosecution has no intention of examining this witness requested by the defense. I might say, however, since this subject has been brought up, that there will be isolated occasions where both the Prosecution and the Defense have endeavored to locate a certain individual.

To give two specific examples, I would mention the names of Erick Hippke, the Chief of the Medical Service of the Luftwaffe prior to the time that Schroeder took over in 1944, and Eugen Haagen, the doctor abut whom the Tribunal has heard some proof in connection with typhus experiments at the Natzweiler Concentration Camp. As I recall, either one or both of those men have been requested as defense witnesses. The fact is, however, that the Prosecution has been endeavoring for some months past to locate Hippke and Haagen. We have now found then, through the efforts of our own investigation staffs, and in these cases and in such similar cases as may arise, the Prosecution intends to interrogate these men prior to the time that they are made available to defense counsel.

The second point which we might attempt to clarify at this time is the issue of interpretation raised with respect to Document Number NO-139which was admitted as Prosecution Exhibit No.317 late yesterday. The Tribunal will recall that this document concerned yellow fever and the defense counsel for Rose took issue with the interpretation of the German word "probe" (p-r-o-b-e). The full sentence in which that word appeared was translated by our department as follows:

In connection with my letter of 26 February and your long distance telephone call of....

JUDGE BEALS: On what page of the document book is that document found?

MR. McHANEY: It is on page 113 of the Typhus Document Book, Your Honor. The full sentence reads:

"In connection with may letter of 26 February and your long distance telephone call 6 March, I must advise that the Japanese Oberstabsarzt has in the meantime contacted Oberstarzt Prof. Dr. Rose of the Luftwaffe Medical Service and that the latter has promised to secure for him from Strasbourg all the accounts concerning the yellow fever virus experiments which are important to him" Now the dispute centers around the interpretation of the German word "probe" which we have translated as "experiments."

Rose and his defense counsel urge that the word should be translated "sample" and that the sense of the sentence would be that Rose had promised to secure information concerning the yellow fever virus samples which are important to the Japanese medical officer.

I think that the Prosecution must take the position that this interpretation is a matter of argument and that we must consequently insist that the interpretation as presented to the Tribunal be admitted as the position of the Prosecution. I do not think, as a matter of fact, that it is a point of great importance but in any event I have before me a German-English dictionary. It is Cassell's New German Dictionary by Karl Breul. It is the edition of 1939 and on page 461 we find the German word "Probe" and the English definitions following the word are, first, "trial," "experiment;" "probation," "proff", "test"; "exhibition;" "ordeal;" "assay;" "pattern," "sample," "specimen;" and so forth. Therefore it is apparent that the word can be translated in the manner in which we have translated it and therefore I submit it is a question of argument and the defense counsel for Rose is, of course, at liberty to urge that the context of the letter or to argue on the basis of other grounds that the correct interpretation is "sample" but under the circumstances I do not see that the Prosecution can concede the point although we do not regard it as of paramount importance.

We therefore urge that the translation as submitted be accepted by the Tribunal. Of course, the translation itself is not in evidence, and defense counsel can urge now and when he presents his case as we have stressed the meaning of the word, or that it is improperly translated.

DR. FRITZ: (Defense Counsel for defendant Rose): Mr. President, I am not well enough conversant in the English language in order to make an export statement in this case. However, according to the German text, in my opinion there cannot be any doubt at all, but in this case the word "probe" is used to imply an object or a sample which therefore would have to be translated with the word "sample". For the English description for the word "probe" in the sense of actions for available experiments, and so on, it has a completely different sense or meaning. At a later period of time in this trial, probably when Rose will be heard as a witness in his own case, I shall refer again to this matter.

THE PRESIDENT: Defendant Rose will, of course, bo sworn as a witness in his own case, and make any explanation of this letter he desires to make.

MR. McHANEY: The next matter which was brought into issue yesterday was the affidavit of Olga Eyer. As I recall this document was withdrawn after some confusion had arisen with respect to the German translation of the document, the original of which is in French. We have had the German re-translated, and think it is now correct. We have had the English, which is in your Honors' document book on Page 103,-- we have had the English rechecked, and it is substantially correct as contained in the document book, and the minor corrections which need to be made I will ask leave of the Court to read it and indicate the small corrections, which can be entered by Your Honor on your copy in the book.

This is Document No.883, and is offered as Prosecution Exhibit No.320. It is offered provisionally, inasmuch as we have yet to submit the certificate by General Taylor concerning the right of Tavarger and others to administer oaths. It is also offered with the understanding that the prosecution will make an honest endeavor to bring the Witness Eyer to Nurnberg to testify.

We have already taken steps in that direction, and I hope it will be possible to get her here before the prosecution concludes its case. If that proves to be impossible I would like to have it understood that the prosecution reserves the right to submit additional questions to the Witness Eyer when she arrives.

THE PRESIDENT: That right will be reserved to the prosecution.

MR. McHANEY: The affidavit reads as fellows:

I, the undersigned, EYER Olga, being duly sworn, depose and state:

1. I was born on January 17, 1907 in Strassbourg-Schiltigheim (BasRhin, France) and I am a French citizen. I went to the "Lucie Berger" College in Strasbourg. After I fulfilled various functions, I was secretary to Prof. Pautrier until June 1940.

2. I entered the service of Prof. Eugene Haagen as secretary of the Hygiene Institute of the Strasbourg faculty in the month of November 1941.

3. I had to do all the correspondence,---

and here is a small correction, an interlineation--

I had to do all the correspondence of the Institute, even the secret correspondence.

4. When I started to work for Prof. Haagen, I saw a letter, which had been written before I came, relating to experiments on yellow fever made by Haagen in an insane asylum near Berlin. I think I can remember that it was in Berlin-Reichenau. I add that those experiments had been made on human patients and certain names and results were mentioned.

5. I know that experiments on spotted fever had been made on inmates of the Natzweiler Concentration Camp. I know about these experiments from two letters which wore dictated to me by Haagen in the beginning of 1944. In the first letter which was addressed to the SS Hauptamt in Berlin through Prof. Hirt, Haagen asked for healthy prisoners (200) for his experiments. The second letter was also addressed to the SS Hauptamt in Berlin and stated that those prisoners were in a bad state of health and that a great part of them had died during the journey. At the same time, he asked for another 200 prisoners in good health, of the same constitution as the soldiers of the German Army.

6. From Haagen's correspondence, which I did myself, I know that experiments were made on influenza and epidemic jaundice. Other details are unknown to me.

7. Reports were made every three months on all the experiments to the Chief and Inspector of the Medical Service of the Luftwaffe' and to the 'Reichsforschungsrat' and to a Luftwaffe bureau in Berlin-Dahlen, from which Haagen depended directly and where he had to go from time to time. I add that I had to send reports to the 'High Command of the Wehrmacht'. From the report on spotted fever, which was sent to the Inspectorate of the Luftwaffe, it was clearly understandable that experiments had been made on human beings.

8. Haagen received a subsidy for his experiments from the 'Reichsforschungsrat' in Berlin. I think I can remember that the correspondence was signed by Prof. Rostock. Prof Rostock was in constant touch with Haagen and they made numerous oral reports to each other. Haagen used to visit Rostock in Berlin.

9. Prof. Rose, Inspector of the 'Medical Service of the Luftwaffe', came to Strassbourg twice to visit Haagen; the first time at the beginning of 1942; the second time at the beginning of 1944. Since Haagen showed him the whole Institute, I suppose that he spoke too, of his experiments on human beings and gave him the result of these experiments.

10, It was not a secret that Prof. Haagen went each week to Natzweiler with his female assistant, Brigitte Crodal and his male assistant, Dr. Graefe, to carry out his experiments with spotted fever. When we were protesting one day against these experiments on human beings in Schirmeck, Graefe answered us: 'One uses only Poles and no Alsations and the Poles are not human beings!'.

It is signed "Olga Eyer."

There is a correction in the statement made by Olga Eyer, that is the paragraph immediately proceeding her signature. There was a sentence omitted at the end of that paragraph, reading, "Sworn and signed in Strassbourg on 18th November 1946."

THE PRESIDENT: What was that date, counsel?

MR. McHANEY: 18th November, 1946.

I would now like to go back to Page 54, --

THE PRESIDENT: Just a moment, do any of the defense counsel disagree with the revised translation of this document? (No response). If there are no objections counsel may proceed.

DR. NELTE: Defense counsel Nelte for Handloser. Mr. President, the affidavit of Olga Eyer seems to have been given in the French language, and up to now I have not seem the original of this affidavit, and therefore I would be grateful to the prosecution if they would let me have the original for a short period of time.

I would like to add the following, from the statements of the prosecution I assume that for the time being he is presenting this affidavit, and that under the provision that the Witness Eyer will appear here for cross-examination.

If I have understood correctly then this has my approval because in the other case the Tribunal would have to make a ruling.

THE PRESIDENT: Counsel for the prosecution will doubtless exhibit the original exhibit to Dr. Nelte. Counsel has stated that the attendance of the witness will be procured before the Tribunal if possible. It is hoped the witness will be present to testify from the stand.

DR. NELTE: The address of the witness has been given to us by the witness Schmidt on the witness stand, the Dermatological Institute of the University of Strassbourg.

THE PRESIDENT: Yes.

MR. McHANEY: If counsel Nelte plans to retain the original of the Eyer affidavit for any length of time I will ask him to return it to the Secretary General, as it is now in his custody.

THE PRESIDENT: Dr. Nelte stated he desired to examine the affidavit for a short time. If it is not returned at the end of this session, Dr. Nelte will return the original affidavit to the Office of the Secretary General.

MR. McHANEY: I would like now to ask the Tribunal to turn to Page 54 of the English Document Book whore we find Document NO-434. This is an affidavit of Ferdinand Roemhild, and the Prosecution is quite anxious to have Roemhild appear and testify before the Tribunal. Unfortunately, however, Mr. Roemhild together with an investigator of the Office of Chief of Counsel was in an automobile accident yesterday, and I am not sure that we will be able to get Mr. Roemhild here before the completion of our case. As a matter of fact, we do not yet know how seriously he may have been injured, but I would like at this time, since we have presented our evidence on the typhus experiments and have heard some testimony concerning particularly the Defendant Hoven, to offer this affidavit at this time with the understanding that the Prosecution will secure the presence of Roemhild as a witness before the Tribunal, if that is possible. If he has not been seriously injured, why, it may be possible to get him here early next week before we complete our evidence, but for the purposes of continuity of the record, and because we are not sure that we will be able to get Mr. Roemhild here, I would like to have his affidavit admitted at this time and read into the record.

THE PRESIDENT: That procedure may be followed. If the witness arrives, he may later be sworn. The affidavit, of course, will be received in evidence only provisionally until it is determined whether or not the witness may be present. The affidavit is also sworn to before a U. S. civilian. I presume as yet no certificate has been filed to qualify him to administer an oath.

MR. McHANEY: That's correct, your Honor.

DR. GAWLIK: Mr. President, Dr. Gawlik for the Defendant, Hoven. I request that the decision which has just been made be examined once more. Roemhild has been called as a witness by the Prosecution. For the time being, it has not been determined if the witness, Roemhild, is injured, to what extent he is injured, and if it would not be possible that he can already appear here within the next few days. The Prosecutor has himself stated that the witness, Roemhild, may probably already be heard here in the beginning of next week.

It has been the usual procedure before the International Military Tribunal that an affidavit could not be read when the person in question appeared as a witness. Before the International Military Tribunal affidavits have been refused because of this reason. I request that this procedure be also continued in this trial, and that the reading of this affidavit be postponed until at least it has been determined if the witness will be able to appear here.

The affidavit could still be read during the next week, and it could also be read after the conclusion of the presentation of the case. It must be added, furthermore, that I must insist under all circumstances, to take the witness, Roemhild, into cross examination if the affidavit should be read.

The affidavit contains a number of obvious mistakes which the witness will have to correct in any case. I, therefore, would consider it a considerable limitation of the rights of my client if the affidavit should be accepted in this case without I having the opportunity of making statements to the witness. I, therefore, request that it be considered that according to the English Document Book the affidavit has been given in the English language. The witness is a German and his mother language is German. It is, therefore, my opinion that no interpreter was consulted. I think that in a case of this kind it must be shown under all circumstances by the affidavit that there a sworn interpreter was used, or that the witness is so conversant in the English language that he can give a statement of such importance as the affidavit of Roemhild represents in the trial against my client. In the way in which the affidavit was taken, it is incomplete in that respect. It must, furthermore, be added that it is not shown by the affidavit that the American civilian, Fred Rodell, who administered this affidavit is capable of administering oaths. This would have to be done in any case. However, in any case I request that the reading and the presentation of this affidavit be postponed also in view of my previous statements.

THE PRESIDENT: I advise Counsel that the Prosecution requested that the affidavit be admitted provisionally only and subject to calling the witness so his personal attendance here might be procured. He does not propose to submit the affidavit as a direct exhibit in the case at this time.

MR. McHANEY: I assure the Tribunal that the Prosecution is a anxious to get Mr. Roemhild here as is the Defense Counsel.

JUDGE SEBRING: Where is he at this time, Mr. McHaney?

MR. McHANEY: Sir, I don't know. We received a telephone call late last evening stating that Mr. Rodell, an investigator of the Office of Chief of Counsel, was injured in an automobile accident near Heilbrunn and is himself now in the hospital.

JUDGE SEBRING: Is he the Rodell who is supposed to have administered this oath?

MR. McHANEY: That's correct, yes, and he did not at that time have any information at all about the whereabouts of the driver of the vehicle or of Mr. Roemhild, and expressed some concern because of that. I think it is simply a question of when the affidavit is to be read into the record. We are anxious to read it now because we have dealt at great length with the typhus experiments in this part of the record. We would like to get our evidences as close together as possible. If the man appears here, we know there has been no prejudice. The Defense Counsel if he can't appear, then I take it that the affidavit would be admissible in any event.

THE PRESIDENT: Do we understand that the witness, Roemhild, was accompanying Mr. Rodell in this automobile trip?

MR. McHANEY: That's correct, yes, sir.

THE PRESIDENT: You do not know whether the witness was injured or not?

MR. McHANEY: We know nothing about the witness, that's right.

THE PRESIDENT: Under all circumstances, the affidavit will not be read into the record at this time, but can be postponed until early in the week to ascertain whether or not or when the witness, Roemhild, may be present.

MR. McHANEY: I turn -

THE PRESIDENT: It is, the ruling of course without prejudice, the right of the Prosecution to offer the affidavit at some later time for consideration of the Tribunal when the proper certificate has been filed if it can be ascertained that the witness may not be in attendance.

MR. McHANEY: I turn then to Document NO-1190 which is not contained in your Honors' document book, and I am having the translation passed up now. This document was filed in loose form in the defendants' information center yesterday. It is offered as Prosecution Exhibit 321 and is simply a list of prisoners who were assigned as experimental persons in connection with the Danish typhus vaccine experiment in Buchenwald in the middle of 1944.

The Tribunal will recall that the Danish typhus vaccine was the Copenhagen vaccine, and that an experimental series was carried out at Buchenwald in the middle of 1944 to test the effectiveness of the Copenhagen vaccine at the suggestion of the Defendant, Rose, and we find in Prosecution Exhibit 321 a list of forty-three names of persons who were assigned as experimental guinea pigs.

The document is headed Secret. It carries in the left hand corner the initials RKPA which, as I understand it, is the Reichs Criminal Police. The date line is Weimar-Buchenwald, 4 March 1944:

List of the Protective Custody Prisoners, and habitual Criminals selected and released for the Experiments with the Danish Typhus Vaccine.

THE PRESIDENT: What is the term "protective custody prisoners", Counsel?

MR. McHANEY: Protective custody prisoners -- if I understand the term correctly, your Honor, are primarily if not exclusively political prisoners. They are prisoners who are in a concentration camp under a protective custody order which as I understand it was issued by the Reichssicherheitspolizei, the RSHA. Heydrich was first the Chief of that organization, and following that time, Kaltenbrunner, and people could be committed to a concentration camp under these protective custody orders and I submit that in the context here used it means political prisoners because it says "of the protective custody prisoners and habitual criminals" distinction being drawn between criminals on the one hand and protective custody prisoners on the other, persons who were thought to be dangerous to the state.

THE PRESIDENT: Were these protective custody prisoners German nationals or did that include nationals of other nations?

MR. McHANEY: Oh' I'm quite sure that it included all nationalities insofar as they were..........

DR. FRITZ (Counsel for defendant Rose): Mr. President, may I make a statement to clarify this point before the Tribunal? Prisoners under protective custody, according to the German law, are those habitual criminals who have been punished so often, so severely, that their release would mean a danger for the public even after they had lived through their term. Therefore, they were called in "security custody" after having fulfilled their punishment. As far as I know, this law is still effective today because I have heard of cases where oven at this time people are placed into protective custody by the German authorities. Therefore, these persons did not have anything to do with political prisoners.

MR. McHANEY: If I may suggest to the Tribunal, this is a matter of argument.

We certainly do not accept the statements just made by the defense counsel and I can't believe that he seriously is suggesting that protective custody prisoners are limited to those criminals who have been sentenced by an ordinary German court and have served out their ordinary term of imprisonment and then sent to a concentration camp. It's true that that happened and those indeed are the criminals who by and large were in concentration camps. I am no expert on German law. We are making some endeavor to look into the matter about just who was in those concentration camps. But in any event, it is just a matter of argument as to what the words mean. We submit that they do in fact include political prisoners, defense counsel to the contrary.

THE PRESIDENT: This question will not be concluded by what has been said at this time but will be left open for further argument and investigation.

Does the counsel desire to address the Tribunal?

DR. PELCKMANN (Counsel for defendant Schaefer): I am only taking the floor for the reason because I have already made a request several days ago that this record be corrected. In the interrogation of the witness Viehweg, this criminal who appeared here who had been sentenced many times before, there has already been a mistake in translating. There has also been a mistake in translation. We must make a difference between the statement "protective custody" and "safekeeping". "Protective custody" is a political measure which was used by the police agencies and by political agencies. It is correctly translated "protective custody". The "safekeeping" is an order by the German courts by virtue of a law about the order of safekeeping. This safekeeping is only applied to criminals who, because of their frequent derelictions, mean a danger for the public in the criminal sense and who therefore are being placed into life long confinement by a court. This safekeeping or confinement is examined from time to time. However, it is a purely legal criminalistic order. Furthermore, the basis of this law can be found before the time of 1933. I do not know if this is a procedure also in other countries.

THE PRESIDENT: What are the German words translated "protective custody" in the original document?

MR. McHANEY: Will the translator -- will the interpreter read the words which have been translated "protective custody prisoners"?

INTERPRETER: It is stated "Sicherungsverwahrung".

DR. PELCKMANN: The translation to me seems to be wrong in this case. It should read "security enclosure" perhaps. In any case, the German word in the original document is "Sicherungsverwahrung". "Sicherungsverwahrung" cannot, in any case, be translated as protective custody.

MR. McHANEY: I think we're spending a lot of time on a point which is not particularly material. I will try be have the translation checked. I would rather submit it like it is and avoid any further argument and concede a point which I don't think is anything material. We don't admit that they were all criminals and we don't admit they wore all German nationals.

JUDGE SEBRING: Can you see anything to the contrary simply from the paper itself?

MR. McHANEY: Certainly not, your Honor. I wold suggest that a reading of the names here might indicate to the Tribunal that there are some here where it would be stretching the point very far to be considered German names but we, of course, have no proof that they are German citizens. For instance, Schubrowski, No. 20, being one.

The document is signed "By order of Otto, Kriminalrat."

I come now to an entirely different subject. That is, we are moving on from the typhus experiments --

THE PRESIDENT: At this time the Court will take its noon recess.

(A recess was taken until 1330 hours.)