1947-06-24, #2: Doctors' Trial (late morning)

THE MARSHAL: The Tribunal is again in session.

MR. HARDY: May it please the Tribunal, this morning when I was making an attempt to ascertain the duration of the defense, I apparently misunderstood just the length of time the defense case would take. Am I to understand that the case of Pokorny and his three witnesses will take two to two and half days, and in addition thereto, the defense counsel as a whole will require four additional days to put in their supplementary document books?

THE PRESIDENT: Is counsel's understanding correct concerning the case of defendant Pokorny?

DR. FLEMMING: Yes, your Honor, the defense will need three and a half to four days to submit its supplementary documents.

MR. HARDY: Does the Tribunal intend to sit on Saturday of this week on the 4th of July, and on Saturday of next week?

THE PRESIDENT: The Tribunal will convene on Saturday of this week. Announcements concerning the end of next week will be made at some later date.

MR. HARDY: Thank you, your Honor.

CROSS EXAMINATION (Continued)

BY MR. HARDY:

Q: Dr. Hoven, would you kindly turn to paragraph number 4 in your affidavit?

Now, in your affidavit you will note in the last sentence of paragraph number 4 — this is on page 2 of Document Book Number 12, Document NO-429 — in that sentence the affidavit reads as follows:

From my association with Dr. Ding I understood that the chain of command in the supervision of the spotted fever experimental station was as follow: Reichsarzt-SS [Reich Physician] Grawitz, Genzken, Mrugowsky and Ding.

Now, do you recall that in the course of the interrogation I stated to you the following questions; one,

From your conversations with Ding you believed the chain of command was Genzken, Mrugowsky, and then Ding?

And your answer was, "And Grawitz." And then I said, "Yes, Grawitz. He came above both of them", and your answer "yes". And that occasions the reason why we put the chain of command in paragraph 4 to be Grawitz, Genzken, Mrugowsky and Ding; is that correct?

A: Yes, as far as Block 50 is concerned, that is correct.

Q: Doctor, would it be more convenient for you to follow me in English, or would you rather follow me in German through the interpreter during the course of this interrogation concerning the affidavit? Which ever you wish to do would be perfectly convenient for me.

A: Do you mean right now?

Q: Yes, if you would rather follow me in English you may do so, or if you would rather follow me in German through the interpreter, you may do that also.

A: I have learned a lot during the seven months that I have been in this trial and listened to the examinations, but it would be rather catastrophic for me to speak in English. I don't understand that much. I prefer to speak in German.

Q: Well now, in connection with the paragraph number 6, you have stated on direct examination that you took exception to the words "very friendly" at the time of the interrogation; is that correct?

A: No, Mr. Hardy, that was when we read this paragraph, I said to Mr. de Vries, "Very friendly". I don't mean that. I mean for the "friendship of expediency" And then Mr. de Vries said something to you, and I didn't understand what he said, and then he told me, "That's the same thing. The meaning is the same." You were present at the time.

Q: That's right, And when I proposed the sentence which is now in the affidavit, I proposed it in the following manner:

Inasmuch as you were constantly associated with Dr. Ding and your work in the medical field was of common interest, you became very friendly.

Then we later struck out the proposal of mine:

That is, your work in the medical field was of common interest.

And in answer to that you stated:

I got very friendly with Dr. Ding for a certain purpose in mind, namely, to protect certain prisoners who otherwise would have been shipped to a concentration camp at Auschwitz.

Through friendship with Ding I managed to give a certain number of prisoners a position in the institute of Dr. Ding where they worked, and because of their work therefore could be declared vitally necessary.

Now, isn't that the gist of what you meant by "very friendly"?

A: You mentioned yourself at the beginning of your statement that I said that there was a purpose, and from that it is apparent that it was a friendship for a certain purpose, and that is what I meant, a friendship formed only for a certain purpose. If you mean it in that sense, it is correct, if you understand it.

Q: By virtue of that friendship you were able to gain knowledge of some of his activities.

A: On the basis of friendship formed for a certain purpose, yes.

Q: Now, then, also at that time I asked you to write down the names of some of those inmates, that is three or four inmates, you wished to help and protect and you supplied me with the following names in answer to that you supplied me with the names: Henry Pieck, Jan Robert, Prof. Dr. van Mimger, August Cohn, Fritz Kirchheimer, and you stated five other Jewish prisoners: is that correct?

A: To what station is that referring to 46?

Q: I am referring just in general to the entire situation. I asked you to write down some of the names of inmates whom you attempted to protect and you gave me those names, is that correct?

A: Yes, I said that I know more but at the moment I couldn't remember their names.

Q: That's correct. Well now we turn to the section in paragraph no. 6 where you state in the affidavit:

As a matter of fact, Dr. Ding had to go to Berlin for discussions with Dr. Mrugowsky and others, nearly 3 days out of every two weeks, and on such occasions I was in charge of the Spotted Fever Institute. However, when Ding went to Berlin the experiments were discontinued until he returned.

Now, isn't that substantially what you told me in the interrogation and didn't we check over this language in draft form of the affidavit at that time?

A: Mr. Hardy, it was like that: When this was spoken I said, "Ding told me that way." It can be that he went to Berlin and used that as an excuse or he had a personal purpose in Berlin and had the ticket made out that way, for at that time only to get such a ticket one had to be on an official trip. Maybe it is that he stated he went to the Hygiene Institute and actually didn't go and I said expressly that is what Dr. Ding told me. That is correct. Then perhaps I assumed not enough knowledge on your part as to the actual conditions.

It was, as I already told you, in this typhus station in block 46, that I took part at the request of the prisoners in order to undertake the revision of the selection of the experimental subjects and that was my reason for doing so.

Q: Well, you were, were you not, ordered or requested to supervise Block 46 at this time when Ding was in Berlin?

A: No, Mr. Prosecutor, for this doesn't make any sense to put me in charge of the supervision since I did not understand anything about it. He had already given Kapo Dietzsch instructions and regarded 46 as his own domain.

Q: Well, had you ever seen any of the experiments conducted in Block 46?

A: No.

Q: Now, Dr. Hoven, just a moment. Here in paragraph 7 I asked you or proposed to you the sentence which is therein contained at this time in Document NO-429, and is the first sentence:

The experiments at Block 46 in the Buchenwald Concentration Camp were conducted as follows.

And when I put the question to you, I said, "You know this from talking to Dr. Ding", and you answered "Sometimes I have seen them, too." You remember telling me that?

A: No.

Q: And this answer you gave when I asked you whether you knew about the conduction of experiments in Block 46 from talking to Dr. Ding, you answered: "Some times I have seen them, too."

A: What do you mean, whom do you mean I saw?

Q: The experiments?

A: I certainly didn't mean that. I couldn't have meant that at all because events in block 46 naturally were talked about among the prisoners and we had some information about this.

Q: And you state that you did not say that to me during the interrogation. I will read the questions I put to you and answers you gave to me. The question is as follows. Referring to the rough draft of the affidavit we had. I quote:

The experiments in block 46 in Buchenwald concentration camp were conducted as follows: You know this from talking to Dr. Dinb?

You answered "Sometimes I have seen them, too." This meaning surely that you saw the experiments. Very clear, isn't it?

A: No, I did not mean that.

Q: You don't doubt that you said that, do you?

A: Well I can't tell that anymore now but I only know I can't have meant it. I didn't see them.

Q: Well let's go down to the section of paragraph 7 wherein you discuss the percentage of inmates who died in the course of the experiments. First of all, I stated to you, in a question which compares somewhat to the third sentence from the end of paragraph 7. I stated:

Between the autumn of 1942 and the summer of 1943 approximately 500 inmates of the Buchenwald concentration camp were used in these experiments.

And when I proposed that sentence you stated:

That is a rough estimate.

Consequently I struck out the word "approximately" and put in the word "about". Is that correct?

A: Well, you see, Mr. Hardy, as far as it is concerned statements you yourself named the figure 500 at the time. I felt that the conversation with you was in the form of a conversation and when you mentioned this figure 500, I then assumed that you had more knowledge than I. And you can see that in my opinion it was really a leading question. When you named this figure to me and I let you influence me and I said "I have no information about it, but according to my entire knowledge of concentration camps, I assume that is correct."

Q: Well, when you stated this. "That is a rough estimate" — didn't I strike out the word "approximate" and put in the word "about" — is that correct?

A: If you say so that must be correct. Of course, at the moment I can't recall exactly what happened.

Q: Well, now concerning the last two sentences in paragraph 7 which refer to the percentage of deaths or the mortality rate, I asked you the following questions:

How many of those died as a result of the experiments? How many would you say died of your own knowledge?

And you answered:

I estimate for that particular period about 10% died as a result of the experiments but after 1943 a greater percentage died.

And then I said:

What percentage would you say?

And you answered:

I heard from other sources, from inmates in the camp, that after 1943 the percentage of people who died as a result of the experiments amounted to 18 or 20%.

Do you recall telling that to me?

A: It may be but I got both figures from statements of prisoners and I recalled them approximately.

Q: I see. Then the two sentences which are contained in paragraph no. 7 were not my idea, were they? They were given to me from my conversation, with you, is that correct?

A: Yes, certainly, and I reproduced them from conversation with prisoners.

Q: Now, in connection with paragraph no. 8 which refers to the selection of inmates to be used for the purpose of medical experiments in Block 46, did I understand you to state in direct examination here, yesterday, that you didn't have anything to do with the selection?

A: I never denied that I had something to do with the selection. I only said that at the request of the prisoners I took part and told that to you, too. I had not had anything to do with that and I was expressly asked by the illegal camp administration and foreign prisoners to take a part in that. That is, to have my name as camp physician used for this revision of the selection because the revision of the selection was done by German political prisoners and foreign prisoners. I believe that is how you understood me but I assume then there were mistakes made in the translation.

Q: I was reading what you said to me, doctor. I proposed the same paragraph which is now contained in Document NO-429. I read that same paragraph verbatim to you in the interrogation and after reading the paragraph you stated, "Yes", and then I read another section of the paragraph and you said, "Yes", and then I said to you, "What have you got to add to that?" After I had read the paragraphs to you I asked you what you had to add to that and you stated to me:

In selecting prisoners in Buchenwald for experiments to be carried out by Dr. Ding it was not officially necessary that I make such a selection or sign these lists. This meant Dr. Ding could have ordered Schober to make the necessary number of inmates available. However, I personally occupied myself with this selection, because I had been requested by the inmates to do so so that I did not desire the inmates become victims, since I tried to select those people who were stated to be criminals.

After I left Buchenwald the same system of selection was not maintained and inmates were made available to Dr. Ding, simply through Schober.

And then I again referred to the paragraph and said, "This is basically true" and you said, yes", now is that what you want to be put in the record, that answer you gave me?

A: Yes, well, Mr. Hardy, at the moment I cannot tell any more, but what you have just read as to what I was supposed to have said is, in no connection at all with the actual contents of paragraph 8 as it reads now. It says on page 4 in the English text, for example, the words "at random" and the interpreter told me that meant "willkuerlich" in German and I believe that is a word I never used in my record. And you say that is the meaning of what I said in my direct examination that I took a part in it, and if I used that word it doesn't mean that I did it, it means that I put my name under it. That was my affair and if it would have had any unpleasant consequences I would have had to bear them, because I said that I was responsible for the prisoners, for this action. The main object was to prevent that German political and foreign prisoners would be used for the experiments.

Q: Now, Doctor, the persons used in the experiments — that is, the persons selected, whether they were removed later by you or otherwise, were they volunteers?

A: I don't understand, Mr. Hardy. It's like this. The selection had already been made by the Gestapo or the camp administration.

Q: Then the experimental subjects were not volunteers. I am trying to convey this question to you, Doctor. When these inmates were selected to be used in experiments in Block 46, were they volunteers in the sense that we mean volunteers as set forth as issue at this trial.

A: Those who had been selected by the Gestapo and the camp administration. I don't believe that they were volunteers. However, it happened a few times that there were volunteers among them but I don't know for sure any more in which experiments. But these lists which the Gestapo and the camp administration selected, the revision was by the prisoners, by the trusted men of the German and foreign prisoners and they were revised in case there were German political prisoners or foreign prisoners on these lists, and thereupon these political prisoners were taken out of the list, under some pretense be it that I said they were sick, for my hospital, or some other pretense, and then I or the prisoners put exclusively informers and traitors in their place, and these, of course, were not volunteers.

Otherwise, I am of the opinion that prisoners anyhow cannot decide about volunteering as long as they are prisoners. It is only a conditionally voluntary action if they are prisoners.

Q: Well, then, Dr. Hoven, if they had been volunteers for the experiments then it would not have been necessary for you to occupy yourself with the selection so that undeserving inmates would not become victims? Is that right?

A: Yes, that's quite right.

Q: Then, can't you positively state that the majority of these inmates were not volunteers? That they were forcefully being used in the experiments?

A: Mr. Hardy, I did not concern myself with that in detail. I merely had the order, in agreement with the resistance groups of the German and foreign prisoners, as I have just reported it to you to take them out of the experiments. Of course, you are right, if they had been volunteers in these experiments, where I undertook this revision of the prisoners who had been selected, then there could not have been any volunteers, that is certain, but beyond that it is certainly correct, because probably in those experiments where they volunteered I would not have revised the lists. It is quite certain there were volunteers for some experiments, but I have already said I don't know for which ones or how many.

Q: Well now, in the event that you saw fit to take the names of certain deserving political prisoners off the list so that they would not be subjected to the experiments, did you then select other people to take their place on the list?

A: It is not correct, if you use the first person. I did not do it, but the prisoners did it, but I assumed the responsibility for the action. That is correct, — and they were exclusively informers or some who somehow were connected with the SS.

Q: Well now, after you removed the name of a deserving inmate from the list and substituted it with the name of another inmate, supposedly a criminal, an informer, or a traitor, — did that criminal, that informer, or that traitor volunteer for the experiment?

A: No, certainly not. But we felt, since we could not prevent these experiments, this was still the best solution. It was impossible to prevent them, but at least we ameliorated it considerably and the matter was handled very carefully and thoroughly by trusted people of the German political and foreign prisoners.

Q: Well now, in connection with the transports sent to a euthanasia station, which you later found out to be Bernburg, do you maintain now that only one transport left for Bernburg, as you stated in your affidavit?

A: Yes.

Q: On this transport were there—

How many people actually were on the transport? 200, 300, 400, 500, 600, or what?

A: I cannot tell you the exact figure, Mr. Hardy. I believe it was three hundred and something. Jewish, as well as professional criminals and other prisoners. Originally, German political prisoners and foreigners had also been on the transport.

Q: Well, was a special list made out of how many people should be on the transport at that time?

A: I don't know. I don't know how it was handled. The physicians' commission had selected them. I heard Dr. Menneke was in charge of that.

Q: Well, how many people did you save from this transport?

A: Well, there were eleven prominent political prisoners, and then a number of others, also foreigners.

I don't know the exact figure any more. It was quite a large number.

Q: Well, when you saved a person from the transport — that is, struck their name from the list — did you have to insert or substitute another prisoner for the one that you saved?

A: That was not up to me at all; I was not the chief camp physician, I told my chief to strike those people from the list and then he did not like this whole affair very much either; how it happened, what reasons he gave, I don't know any more. In any case, we admitted them into the hospital as patients, and whether other persons were put in their place, I don't know.

Q: Were the other 300 or 400 Jews who actually went on the transport all informers, traitors, criminals?

A: No, no; certainly not.

Q: Well, was it impossible to save them?

A: But, Mr. Hardy, I cooperated with the Jewish trusted people. 1200 were supposed to be sent away and we did everything that was humanly possible. The political, the Jewish and foreign prisoners, we all did everything that was within human power to do. As far as I remember, at the last moment I did succeed in having a Jewish nurse taken off the transport.

Q: After the transports left for Bernburg then you received a list of the names of the Jews that were killed at Bernburg, didn't you?

A: Yes, for my chief, and he again received it for the camp commandant.

Q: And were you ordered to issue false statements of death, that is, fake death certificates?

A: Yes, but I would not have had to accept officially. Thereupon, as in this entire action against the 14-F-13 Action with the Jewish trusted people and foreign prisoners and German political prisoners I got together with them and I told them that and the committee gave me the advice to leave that to me and for reasons I have already told yesterday, I did that.

Nothing could be changed about it. Whether I or somebody else did it was the same, only the manner in which I did it was more agreeable.

Q: Well now, when you received the order to make out these death certificates you obeyed it, didn't you, and made out the fake death certificates, didn't you?

A: I told you already that I myself did not make them out. The Jewish and German political prisoners did it, but I signed them for reasons I have just stated.

Q: Very well, Doctor. Did you ever visit Bernburg?

A: Yes.

Q: For what purpose did you visit Bernburg?

A: From an outside camp, I believe it was Wernigerode, we received the news that two prisoners had died a natural death; the City or Wernigerode did not have a crematorium. At that time, as far I remember, a camp physician had found out that these prisoners had died, and then they telephoned Buchenwald or wrote or sent a telegram, I can't remember any more. In any case, the fact was that two prisoners had died and they could not be buried. This could not be denied. Therefore I telephoned Berlin and asked what could be done about it and they looked over where the nearest crematorium was that could be reached and that was Bernburg. Therefore, I went there by car, talked to Dr. Ebel for about ten minutes, and he gave the permission and said that the corpses were to be sent there and they would burn them and then I went to this branch camp and informed them about it.

Q: Was your trip to Bernburg made before or after the first transport left?

A: April 1943.

Q: Thank you. Doctor, turning to the section of your affidavit which refers to the killing of inmates by phenol, I recall that you told the Tribunal that at the time that you executed the affidavit that you did not know what the word "traitors" meant, is that correct?

A: Yes.

Q: Do you recall the questions that I put to you which were as follows:

After you became second doctor, and through to the end, you became aware of the fact that there were many of the prisoners who were not liked by the other prisoners and were trying to benefit themselves, and that they tried everything in their power to become more powerful and to get better positions which would act to the detriment of the political prisoners who were in need; therefore you considered these prisoners to be traitors,

and you answered,

Not me but all of them, all the unintelligent inmates.

Then I asked,

These prisoners, Doctor, were considered traitors by the inmates?

and you answered, "Yes."

You and the inmates themselves considered them not worthy of life,

and you answered,

Not only not worthy of life, but if they had continued to live they would have killed hundreds of people.

Now, isn't it evident from those questions and answers that you understood the meaning of the word "traitor"?

A: Judge Sebring asked me the words I did not understand in the English version and I told him.

Q: This was in English I asked you these questions and you answered in English.

A: I didn't understand what you just said.

Q: I asked you one question,

These prisoners were considered traitors, Doctor, by the inmates?

and you answered, "Yes." I asked you the question,

Therefore, you considered these prisoners to be traitors,

and you answered,

Not only I but all of them, all of the intelligent inmates.

In other words, the intelligent inmates considered them to be traitors. Isn't it apparent from that question at that time you did understand the word "traitor"?

A: Well, I am not aware of that. At any rate I didn't know that word. Of course, in the course of time I learned it now, but you know this entire complex with these traitors and informers there and everything was so complicated that at the time I could not cope with it stylistically; you will note that yourself, that wasn't so simple.

Q: Now, when Dr. Ding came to assist you in the operating room one evening when you were administering phenol to three inmates, did Dr. Ding come in just by chance or did he come in at your invitation, or what was the reason for Ding's presence that evening?

A: I never invited him.

Q: He just happened to come in by chance?

A: No, we don't believe so, but we assume that he had been told about it somehow, that this happened and this was done in entire agreement with the illegal camp committee or with the foreign and German prisoners, and as far as I know he killed three. He didn't ask anything, strange as this may sound, and then after he had killed somebody himself he left again.

Q: Well, did he not interrupt you when you attempted to kill one of the inmates with a phenol injection and inform you were not doing the job correctly, and take the needle away from you and show you how to perform the job, how it could be done more efficiently?

A: That was just a pretense, I think. At any rate he took the needle and performed the killing himself.

Q: Did he perform the killing more efficiently than you had done it?

A: I don't know that.

Q: How many men had you killed with phenol injections to that time?

A: Two.

Q: Had you killed many on other occasions or was this the first occasion you killed people by phenol injections?

A: That was the first opportunity, the first necessity, where I myself had to take part.

Q: Now, how many inmates were killed by yourself?

A: Two.

Q: Well now, 60 inmates were killed by phenol injections?

A: About 50 to 60 were killed.

Q: Who killed the remainder?

A: They were killed by especially chosen prisoners who were trusted men of the illegal camp committee.

Q: Inasmuch as they were trusted men, you must remember who they were. You cannot have had more than two or three men whom you trusted that much or it would have become an open secret and that would be rather dangerous. Would you kindly tell us who those inmates were?

A: It wasn't an open secret, and my responsibility would not be decreased if I should mention the names, because this was the results of an individual terrible emergency only the people who lived through it can understand it, and the people who did it on the orders of the illegal camp committee, and they thought of nothing but saving the lives of their comrades, and I could not—

Q: Please tell me who the inmates were who performed these killings with phenol. Can you tell me that, please?

A: Who the prisoners were?

Q: Yes.

A: Kuschnir-Kuschnarev.

Q: I don't mean the prisoners killed, I mean the prisoners who performed the killings.

A: You just interrupted me; I just wanted to say so. I stated the reasons why I cannot tell you that, because then I would be no better than the traitors against whom I fought for years.

Q: Then you cannot tell this Tribunal who were the inmates who performed the killings by phenol with you?

A: I could say it, but I can't say it because then I myself would not be better than the traitors. I assume the responsibility for these killings, the 50 or 60 informers who died at the camp, since in agreement and urgent necessity of the emergency this was decided by the foreign and German illegal camp committee; they are not to be held responsible for this. I alone assume the responsibility for that.

Q: Did Dr. Dorn assist you, the Dr. Dorn who appeared here, who was in the hospital where the killings took place? Was he one of the men who assisted you?

A: No. I remember Dr. Dorn only because he gave blood; that is all the memory I have of him. I didn't know him very well.

Q: He was a male nurse in the hospital?

A: Yes, I believe. I had more than a hundred nurses.

Q: Was Dr. Horn, a Czech doctor, one of your assistants?

A: No, Dr. Horn was chief of the surgical department.

Q: Well, now would it have been necessary for the person who was administering this phenol by injection to have had some experience with the use of a hypodermic needle, or could just any person of the street without too much difficulty kill a person with a phenol injection?

A: I could not judge that, but in many cases one certainly must have some experience, but not experience in killing with phenol injections but with injections as such.

Q: Well, Doctor, your defense is that these killings in which you participated were justifiable. If they were justifiable in your opinion, why isn't it equally justifiable to tell who assisted you in killing these inmates, the political prisoners who assisted you?

A: That is not up to me to make the decision whether they were justified or not, since it is up to the Tribunal to decide about that. I myself have only the duty to describe things as they were and can only assure you it was such an unimaginable emergency and the prisoners had been crowded into such a small room that there was no further possibility. I can further tell you that, with the Minister of Justice, and other high officials, ministers of justices of foreign countries, and about all these problems of the informers—

Q: Doctor, we have known that for a considerable time. You do not feel that you wish to incriminate or tend to incriminate anyone else in this, in regard to the prisoners who assisted you?

A: I didn't understand that this is incrimination. But I shall not state at that time the people who tried to improve this situation at this time, and save the lives of their comrades, today before a decision is being made about these acts today to give the names of these prisoners to the Tribunal. It may be they will receive high honors for it some time; I cannot decide about that at this moment. Therefore, I assume the responsibility for myself for the action.

Q: Did Henry Pieck assist you in the course of these killings with phenol?

A: No.

Q: Did any of the witnesses what appeared before this Tribunal, who were inmates at the Buchenwald concentration camp, assist you in these killings with phenol?

A: You include the witnesses for the Prosecution also?

Q: Yes, any of the witnesses?

A: I cannot recall that.

Q: Did you ever receive orders from the Camp Commander Koch to perform killings?

A: Once, but I did not do it because I could not. The order did not come from him, but it was an order from the Reichsfuehrer, as far as I can remember.

Q: Well, now in the course of these killings you state that you killed two inmates and that the inmates themselves killed the others; who supplied the needles and the phenol?

A: For which do you mean, Mr. Hardy?

Q: For all the killings, on these 50 or 60 people that were killed with phenol; did you supply the material that was used on the inmates? You, as a doctor, had access to the drugs, etc.?

A: Well, of course, the needles the prisoners had them available too. I said already that I assumed the responsibility for this. The prisoners did not receive them from me, they had them themselves and it had been discussed in the manner of a conspiracy or secret discussion. I also had the means for this at my disposal.

Q: Now, when the camp commander gave you orders to give injections to prisoners or to have them killed in the way you described before the Tribunal; do you maintain that you took measures that the particular inmates who were to be killed were either taken out of the hospital, hidden some other place or were shipped to other camps so that the particular killings would not take place; is that how you avoided carrying out the orders of Commander Koch?

A: Oh, we did that in many different ways. There was a large number of prisoners and I cannot name them all.

Q: Then you received orders to kill more than once from the camp commander?

A: No, prisoners who had been threatened or who were in danger. I did not find that out directly, usually I found out from the trusted men and we saved them in the well-known manner by admitting them as patients or sending them to outside camps; that is how we saved them.

Q: Didn't the camp commander ever check up at a later date to find out whether or not these killings actually had taken place, or was he negligent about that?

A: I don't know; I cannot remember very well that exactly. In any case, the killings that you mentioned before I was not able to undertake them, — who did, I don't recall any more today. At that time I was not so well informed about those matters, but I was advised by the illegal camp administration. They, of course, represented the interests of their comrades.

Q: Now, after a person had been killed by the phenol injection; what kind of a death certificate did you make out?

A: I left that up to the prisoners who were the trusted people of the illegal camp administration, that was a corporation, an organization, which took care of those matters itself.

Q: Well now, you told me in the interrogation of 22 October, when I asked you what kind of death statements you mostly made out, you answered,

All kinds, quite often, inflammation of the lungs or heart attack

— is that right?

A: Do you mean the kind of deaths on the informers who had been killed?

Q: Yes, what kind of death statements did you make. You had to have death certificates for the record; did you make out a death certificate he had been killed with an injection of phenol; or that he had died of inflammation of the lungs; or of a heart attack; or of tuberculosis; or was the death certificate a fraudulent one?

A: Excuse me, Mr. Hardy, to whose death certificates are you referring to now?

Q: To the ones you killed with phenol?

A: That is the informers and traitors I am talking about.

Q: Yes.

A: These death certificates I did not make out personally, I just signed them.

Q: Just a moment, Doctor, you have stated that approximately 50 or 60 persons were killed with phenol injection; of the 50 or 60 some were killed without your knowledge, but you were later notified—?

A: No, Mr. Hardy, that is not how it was; do you now mean about the 150 to 90?

Q: Yes.

A: You mean the 90 cases?

Q: Yes, the 90 cases?

A: They were informers who were spontaneously killed by the prisoners in camp. I was told in one case that during the roll-call, the prisoners killed one of these informers by stamping on him with their feet. Of these killings, I found out afterwards and I had no influence on them. At the most, I could have denounced them to the superior authorities; the jurisdiction of the SS I considered as criminal, however, that has always been my opinion to this very day, and therefore, there was no chance of looking for help there. The result would have been merely that there would have been a big action against the foreign prisoners, German political prisoners and Jews and as a result in retribution for the death of 90 prisoners, thousands more would die.

Q: We have gone through that many, many times; in summarization fifty or sixty prisoners were killed by phenol injections?

A: Phenol or Evipan.

Q: Approximately 90 were killed by beatings or other methods?

A: Yes, or in any other manner. I don't know the manner in which individual cases were killed.

Q: How did you learn of the 50 or 60 killed by phenol?

A: With phenol or other drugs, is that what you mean?

Q: Yes.

A: That was through the resolution of the illegal camp committee. They —

Q: Just a moment, now, think a moment, slow down and try to answer my questions explicitly; how did you learn of that; were they all committed in your presence with phenol or the other drug injections?

A: No, with my knowledge, my full agreement.

Q: And they were performed in the camp hospital?

A: Yes.

Q: By yourself or by five inmates who assisted you?

A: That was carried out by trusted men of the illegal camp committee and I had agreed to it and I covered up for them.

Q: And how did you learn of the other 90 cases of death; did you learn that because you were the only person in whom the inmates had confidence and you were the person who had to make the official declarations of death?

A: Both; it was quite clear, I had to make out the death certificates, the prisoners had filled them out, to be sure, I did not fill them out but only signed them.

Q: How did you know whether or not each death was justifiable; you are assuming responsibility for a great number of deaths; how do you know that each and everyone was justifiable?

A: I assume the responsibility for those 50 to 60 quite fully.

Q: And you are certain in your own mind that each one was justifiable in the context that you put to us here?

A: Yes.

Q: Well, now Doctor, after we had our interrogation of 22 October and I had shown you a draft and I had gone through a considerable amount of this affidavit with you, then I left the interrogation and Mr. DeVries interrogated you further for a short time. Did I not return the next day with the affidavit written in a formal manner and asked you to read the affidavit?

A: Yes.

Q: And in fact I read the affidavit aloud to you?

A: Yes, you read it aloud to me. I requested you to read a little more slowly and you did so, but then you were in a terrible rush, you got up several times and three or four times you handed me the fountain pen and I still tried to read it. I have to say, according to the truth, your personality impressed me. I did not know the true significance of this document and then I signed it, in the belief that what I meant was written or what I meant to say.

Q: And the initials that appear on the affidavit are your initials?

A: Yes, you told me to sign with my initials and that is what I did.

Q: Did you ever write a note in English to Mr. DeVries after that interrogation of 23 October 1946?

A: Yes.

Q: You did in the English language?

A: Yes.

Q: Would you read that note to the Tribunal, which you wrote in English to Mr. DeVries on the 23rd in your own handwriting, kindly read it in English?

A: At that time I had the support of a comrade, who was in prison here and who spoke English.

Q: Is that your handwriting Doctor, on that note?

A: Yes.

Q: Is that your signature on the bottom thereof; would you kindly read it aloud to the Tribunal?

THE PRESIDENT: What is the purpose of this, Mr. Hardy?

MR. HARDY: To indicate to the Tribunal the knowledge of English this witness had on the 23rd of October 1946. I wish to have him read it aloud, it is in his handwriting and we might have difficulty in reading it.

THE PRESIDENT: Very well, the witness may read it,

THE WITNESS: I told you I asked my comrades about many words that I did not know and they helped me in writing this, I did not write it from my own knowledge alone.

Q: Please read it for us in English?

A: (reading)

When I stayed three months in the concentration camp in Buchenwald, about March 1941, I wanted to ask for my release of the camp. As soon as the prisoners heard about it, they asked me not to leave them as I was the only one they trusted, and in fact, the only one who was acting for their benefit. They also wrote it at me in a secret letter which still has Mrs. Hoven. Therefore, I felt the responsibility not to leave them, but to help the prisoners as much as I was able to, and so I did.

I don't want to trouble you with all the possibilities I had to help the prisoners from 1941 to 43 September, I have many witnesses therefore and many letters. But I want to tell you that on 11th or April, 1945, when I was taken prisoner by the Americans, 3 miles from Buchenwald, two hours after they liberated Buchenwald, the soldiers pulled me on a Sherman Panzer. As soon as the prisoners saw me, as Jewish prisoner, August Cohn, told the CO that I had been the only one who helped them always. So they brought me up to Buchenwald where I had my first interrogation. The prisoners told the American reporter that I always helped them end saved the life of the political prisoners of all nations who were in Buchenwald. Then I got the permission to stay as a guest of the prisoners in the concentration camp itself until the next day, when I became a prisoner of war, and was brought in a camp to Kreuznach. October 23, 1946.

Q: That is signed by you on October 23, 1946, and is written in the English language in your own handwriting, is that correct?

A: Yes, that is correct.

Q: At that time were you in solitary confinement in the prison? You were, weren't you?

A: Yes, I was in solitary confinement, of course, but I had work. I could wash dishes and clean out the halls. I believe I even asked the American soldier about a few words. You can see there are a lot of erasures.

I erased things and I inserted words.

Q: Do you have before you document NO. 1063, which is the report containing the results of the investigations carried out in the Netherlands of the experiments and tests made by the German medical practitioners which contains the affidavits of Von der Ling, Lievenwerden and Schalker?

JUDGE SEBRING: What book, Mr. Hardy?

MR. HARDY: It is not a document book, Your Honor. It is a single document, on page 12 of that document. Do the Interpreters have that document?

MR. HARDY: It is document No. 1063, copies have been distributed to the Interpreters. You should have copies available but if you don't I will go on to another subject and you can obtain them during the recess. Your Honors, in this connection the Prosecution requests instructions. Statements were made in this document by three affiants and the defense counsel requested that these affiants be interrogated. Thereupon, the Tribunal appointed a commissioner, Mr. Waltina, to proceed to Holland to interrogate the three witnesses referred to in this document, after proceeding to Holland he obtained depositions from the particular witnesses involved based on questions propounded by the defendants or defense counsel, to the questions propounded by the Prosecution. Therefore, the Prosecution does not feel that the answers gained as the result of the Commissioners while in Holland are subject to documentation and given a document and exhibit number. I have had them reproduced both in German and in English language for use here. Does the Tribunal rule we shall document them and give them exhibit numbers, or would the Tribunal take judicial notice of the hearing gained by the Tribunals commissioner?

THE PRESIDENT: Submit the documents to the Tribunal.

MR. HARDY: I presume the Tribunal is familiar with the appointment of the Commissioner for this task.

JUDGE SEBRING: Was that a Commissioner appointed by the Tribunal to take testimony or depositions of these witnesses as defense witnesses or as prosecution witnesses?

MR. HARDY: Your Honor, as I recall the question came up when the Prosecution introduced this record of the Bureau of investigation for War Crimes in Amsterdam. In the record were affidavits which were apparently damaging to defense counsel. Defense counsel then requested that they be permitted to interrogate and be permitted to examine the witnesses involved, due to the fact the witnesses were in Holland, the Court appointed a Commission to proceed to Holland and at the same time gave permission to the Prosecution to propound interrogatories.

JUDGE SEBRING: On the Interrogations?

MR. HARDY: Yes, your Honors, and all interrogations and answers that are contained in that document that I have assembled together as given to me by the Commissioner, Mr. Waltina.

DR. GAWLIK: Mr. President, I object to the submission of this document for the following reasons: This was a request which I made. Upon my application these witnesses were interrogated and therefore the document cannot be introduced here against my will and that is the first formal reason. Furthermore, for reasons of the material I object because I consider it necessary if these two witnesses who were not witnesses in this trial, but who were being merely here interrogated by this Dutch Commission, if the statement of these witnesses should be introduced here then I make application here for cross examination so that I may cross examine them here. That should not make any difficulties for the Prosecution. If I was able to produce a witness from Holland, it is much easier for the Prosecution. They only have to send a car to Holland and produce the witnesses here. In the manner in which it is done here I object to the submission of that document.

MR. HARDY: The Prosecution has no comments on the remarks of counsel, Your Honor, in as much as the Prosecution deems they are unsound.

JUDGE SEBRING: Isn't the whole thing, if the statement of defense counsel is true, that certain affidavits or the results of an investigation were submitted to the Tribunal as a part of the Prosecution's case, then the defendant made application to the Tribunal for the production of the affiants in person for the purpose of cross examination. That application was denied by the Tribunal and in lieu of producing the affiants for cross examination the Tribunal appointed a commissioner to take their depositions as upon cross examination and thereupon the prosecution, by leave of the Tribunal, also propounded counter interrogatories. The cross examination the report of the cross examination taken before the Commission is now back here for the use of Dr. Gawlik. You wanted an opportunity to cross examine these witnesses and you have been granted leave to cross examine them through the officers of a commission and it has been reported back. The report has been made by the Commission of the Tribunal to this Court and the question arises now whether or not a Commissioner appointed by this Tribunal, as a Tribunal official, to perform a certain function, who has performed that function and made his report to the Court, whether or not that report over the objection of counsel who originally asked leave to propound the cross interrogatories may be considered by the Tribunal. Isn't that all there is to it?

MR. HARDY: That is my point, Your Honor. I want to know how to deal with it, whether or not it is now evidence before the Court or whether I have to produce it as evidence before the Tribunal. The prosecution interprets it as evidence before the Court in as much as it is deposition taken by the Tribunal's Commissioner.

JUDGE SEBRING: Dr. Gawlik, I understand you have objected to the Tribunal, considering this testimony or the report of the Commissioner because, now the answers having been received on the cross interrogatories either you didn't deem them helpful to the cause of your client or you deemed them immaterial, is that the point?

DR. GAWLIK: I consider then in the present form not of probative value because on the basis of the answers which the witnesses gave I consider for the clarification of the facts that further questions are necessary, naturally, when I composed the questions, that is always difficult, I couldn't predict the answers of the witnesses, and naturally, of course, I could only put a certain number of questions. On the basis of the answers, I consider that; further questions are necessary in order to clarify the facts and for that reason I am not submitting it because in this form I do not consider it to have probative value and I am of the opinion since they are questionnaires which were granted to me on my request they cannot be submitted by the prosecution against my will.

JUDGE SEBRING: That is the point, doctor. Aren't you in precisely the same situation that you would be in the case of a witness being produced here in the witness box for direct examination by the Prosecution and then at the completion of such examination you would take the witness on cross examination, and then would say that because of the fact he has given answers on cross examination, that do not aid my case, I ask that the answers be stricken. Aren't you in that situation now? And if you are of the view on the other hand that the answers have no probative value, then, so far as your situation is concerned, you are not prejudiced by the court considering the testimony which has been brought back here on cross interrogatories taken by a commissioner who is an officer of this Tribunal, appointed for that very purpose.

MR. HARDY: Your Honor, I don't think defense counsel is clear that this is now in evidence and is before the Tribunal and was before the Tribunal on the 9th of April 1947 when the Commissioner gave his report to the Tribunal. I think that is not clear to him, and those are the instructions I wish to have from the Tribunal so that I could continue my examination and use these as evidence obtained before the Commissioner and already in evidence before this Tribunal

DR. GAWLIK: No, it is not in evidence. I still have it in my hands, your Honor. I still have the original. I want to ask the question of the Court if the witness should be summoned here for cross examination and I had put these questions to him, I would have been in a position to ask him further questions and then I would have been able to submit to him transcripts and documents which have already been submitted here and I am convinced on the basis of the evidence which has been submitted so far, the statements of witnesses and documents, and transcripts, the witness would have given different testimony. The statements of the two witnesses must be based on an error which as I now found out from these interrogations, cannot be clarified in writing and could only be clarified if the witness would be produced here for cross examination.

THE PRESIDENT: The Tribunal will now be in recess until 1:30 and will announce its ruling then.