1947-07-18, #3: Doctors' Trial (late morning)

Dr. Hoffmann, counsel for defendant Adolf Pokorny, presents his closing argument

THE PRESIDENT: The Tribunal will now hear from counsel for defendant Pokorny.

BY DR. HOFFMANN:

May it please the Tribunal, a few weeks ago the Defendant Dr. Adolf Pokorny was on the witness stand here and made an explicit statement about his letter to Himmler in October 1941, document No. NO-035, exhibit No. 142.

The High Tribunal could learn from the statements of the defendant Dr. Pokorny that he states the true motive of his letter to have been to prevent Himmler from carrying out an intended crime on humanity, in putting him on a false trail and offering him, in the plant Caladium seguinum, a drug for the purpose of sterilization which neither suitable for single cases nor for general use for sterilization or castration.

During the Trial and, particularly after the presentation of evidence for the Defendant Dr. Adolf Pokorny, I have been repeatedly asked what is my attitude to the motive stated by Dr. Adolf Pokorny and what I think about it.

I, as his defense counsel had to consider that the defendant Dr. Adolf Pokorny, from the beginning, as well as during interrogations, as also during the whole time of this trial, has repeatedly emphasized that the actual motive of his letter was contrary to the objective contents of the letter.

I had to consider that the defendant Dr. Adolf Pokorny characterized the witness Trux the reason already in spring 1942 as the real motive which he submitted here to the High Tribunal. That was at a time when no indictment was in view for him yet. The witness Trux stated this in the course of the presentation of evidence under oath to the High Tribunal.

I had to consider that the defendant Dr. Adolf Pokorny stated a number of medical reasons from which claims to have drawn the conclusions when writing his letter that it was impossible to carry out a sterilization or a castration with Caladium seguinum. I have not had that much medical training that I could understand in detail in how far those purely medical reasons could actually convince the physician of the impossibility of the use of Caladium seguinum for sterilization or castration.

But I have understood that there were only two actual possibilities for sterilization or castration in 1941/1942, that the surgical one and the one carried out by X-ray. All methods of sterilization or castration by drugs, such as drugs, hormones, lack of vitamin-E, etc., were only theoretical possibilities which only could be obtained under big difficulties with a small laboratory animal and could not in any way be transmitted to the human being.

I understand that the most impossible, the most hopeless and the least consolidate procedure was a sterilization or castration with the Plant Caladium seguinum. I understand that in addition to that there were the extra medical reasons, such as the difficulties of the cultivation, the gaining of the plant extract, the establishing of hot houses and everything else. It is therefore not absurd to think that a doctor could believe that nothing could happen with Caladium.

I also understand that the defendant Dr. Adolf Pokorny thought his proposal rather safe from a discovery, even though it was impossible to carry out, because a doctor has a certain superiority to a layman like Himmler and only medical people and botanists could recognize the unsuitability of his proposal from the beginning. The actual course of things has proved, as shown by document Pokorny No. 24, exhibit No. 24 that the botanist Professor Wuenzelburg, to whom the letter of the defendant Dr. Adolf Pokorny was given for his expert opinion, at once pointed out the impossibility to carry out this proposal. Only Himmler, who apparently was attracted to anything medical which departed from the sound and normal school medicine, thought it necessary to follow this project and wast time with it. The fact of this method of thinking by Himmler was not unknown, and the defendant Dr. Pokorny states, and counted upon it, thinking that the letter would have its effect and that, on the other hand, his real motive could not have been so easily proved by the rulers of that time.

I finally had to consider that the defendant Dr. Pokorny was neither a member of the MSDAP, nor one of its organizations, and, because of his education, his social connections and his family ties, could not have been a "yes-man" of the Third Reich, but everything speaks for it that he, who had neither relations nor organizational connections to the rulers of the Third Reich or their organizations, was an opponent, if not even a political persecutee. Based upon these facts, which cannot be considered as subsequent constructions or excuses, the defendant Dr. Adolf Pokorny stated his motives to the High Tribunal and he hopes that the High Tribunal will believe him under these circumstances. It can be held against him that this letter, which must have been written for the very purpose for which it has obviously been written, proves his real general attitude towards life and that everything else is nothing but an excuse. But, so many things have happened between Heaven and Earth which appear unbelievable, but are true nevertheless that it can be thought worth considering by the objective observer of this state of affairs whether the motive stated in the letter is the correct one or whether the motive stated by the defendant Dr. Pokorny might be really the true one.

In this connection it must be borne in mind that the proceedings during the trial brought out the fact that, what the defendant, Dr. Adolf Pokorny, heard, as he says, from a security service man about a planned mass extermination, was actually true, and that a plan was ready as early as 28 March 1941 daily to sterilize 3-4 thousand people with an X-ray plant consisting of 20 machines, as is shown in document NO-203; exhibit No. 161.

Furthermore it is known to the court that as early as 1941 the mass extermination of Jews was in full swing in Auschwitz and in other camps, and that Himmler's plan for mass extermination thus was in full execution, From an objective point of view the evidence in this connection established the fact that no experiments could have been undertaken on human beings with the drug proposed by Dr. Adolf Pokorny, and that furthermore this plant, caladium seguinum is completely unfit to carry out sterilization as well as castration in the real sense of these words.

We must further not consider the hypothetic possibility that one could kill the generative faculty of a human being by means of a general poisoning with caladium seguinum, since this is possible, too, by starvation, or by using caffeine, or other drugs. Such means were not specific sterilizations like the ones planned by Himmler who wanted to kill the generative faculty, but retain the ability to work; these means would have been identical to extermination, as it was carried out much more easily and quickly in the gas chambers of Auschwitz, Maidanek and Lublin.

As for the detailed explanations of the defendant, Dr. Adolf Pokorny about his motives, I should like to ask the High Tribunal together them from his testimony and his affidavit, document Pokorny No. 29, exhibit No. 29, and from my closing brief.

I do not want to quote them in detail, but rather turn now to legal considerations as they come up in the case of the defendant, Dr. Adolf Pokorny.

It is an established fact that the defendant, Dr. Adolf Pokorny, wrote the letter of October 1941 to Himmler. Control Council Law No. 10 is the legal basis for the legal classification of this letter. This law contains legal abstractions, as for example, the abstraction of murder, of being a culprit, of aiding and abetting the culprit, of planning, and so forth. How these legal abstractions, however, are to be interpreted to suit the special case, and, above all what their definition are, cannot be drawn from Control Council Law No. 10. We know from the definitions of the German criminal law who is considered to be a culprit, what is to be understood under the term attempt, and so forth. However, it is not immediately sure, whether or not those abstractions are also applicable to Control Council Law No. 10. Furthermore, nearly every case is different, and the question will have to be answered over and over again, if this or that fact is to subsumed under the provision of the Control Council Law.

It is my opinion that for the terms "culprit" and "attempt", used in Control Council haw No. 10, the definitions of German criminal laws should be applied.

Control council Law No. 10 was made in co-operation by all four occupying powers. It represents, therefore, spiritually a uniform entity. On the other hand, the interpretation of the above mentioned legal abstractions is different in the criminal law systems of each of the occupying powers. Murder, being a culprit, aiding and abetting the culprit, and planning, to mention these examples only, are defined differently in Anglo-American criminal laws than in the Russian or French criminal law systems.

If in each zone of occupation the interpretation were to take place in accordance with the criminal law system of the occupying power of that zone, the result would be, that the very same case could possibly result in different punishment in the different zones. This result would be unfair and would also be contradictory to the uniform entity of Control Council Law No. 10. It must be mentioned, moreover, that the International Military Tribunal pointed out repeatedly in its verdict that the Haag Convention contains binding regulations for the signatory powers who must carry them out in the Occupation laws. In article 43 of the appendix to the Hague Convention of 8 October 1907 concerning the laws and customs of land warfare we find that agreement was reached for shaping Occupation laws giving consideration to the laws of the occupied country, insofar as no compelling obstacle prevails. This forces me to the conclusion that according to the Haag Convention interpretations must take place by use of national laws, in our case the German criminal law, if the Control Council Law requires an interpretation in solving a legal question, and if this interpretation cannot be made on the basis of the Control Council Law itself, because it represents itself only as a kind of legal frame-work, (Rahmengesetz).

If we examine the letter of the defendant, Dr. Adolf Pokorny, from the point of view of German criminal law we can discern two parts, when viewed, objectively. The defendant Dr. Adolf Pokorny, declares in the first part of the letter that "the enemy must not only be defeated, but also annihilated." He points to 3 million Bolsheviks who are prisoners of war.

In the second part of the letter he occupies himself with the idea of undertaking sterilization, and he proposes to use the plant, caladium seguinum, as means to this effect.

The defendant, refers in this connection to the article of the business firm of Madams and Koch in the periodical for experimental studies on animals and to a popular science periodical "Die Umschau"; they mention that the firm above carried out experiments on animals with the plant, caladium seguinum. These publications gave interesting insights into the experiments on animals carried out with the plant, caladium seguinum, but would not let a physician conclude that with this plant human beings could also actually be sterilized; furthermore, the authors expressly declared in their article that there was no possibility of sterilizing human beings.

The letter of the defendant, Dr. Adolf Pokorny, did not find in the person of his addressee a man who heard of such thoughts of mass extermination for the first time. To the contrary, it arrived at a time when mass extermination had already started; at that time the firm will have to carry out these mass exterminations could no longer be changed. The letter of the defendant, Dr. Adolf Pokorny, could, therefore, from an objective point of view, at most give Himmler a hint as to what course he could eventually take to carry out his already existing plan of extermination in an additional form. On the basis of the defendant, Dr. Adolf Pokorny's letter Himmler ordered the firm of Madaus and Koch to continue the experiments on animals with the plant, caladium seguinum, and to report as to whether or not there was a possibility of sterilizing human beings with this plant.

Ideas which were suggested to Himmler, of carrying out experiments with the plant, caladium seguinum, in concentration camps as soon as possible, and of starting the building of hot-houses in which to cultivate this plant, remained in the sphere of wishful thinking, and they never got to the point of execution. Only the firm of Madaus and Koch resumed its animal experiments. These experiments on animals, however, brought no results and ended in 1944 with a report which was submitted to this High Court as document No. 28, exhibit No. 29; this report gives clear proof that they did not make any progress until the end of the war, but were still in the phase of fruitless experiments on animals. In this connection we might leave undecided, whether or not the aversion of the responsible men of Madaus and Koch to helping Himmler was a factor in the failure of the animal experiments. The witness, Dr. Koch, at any rate, answered hare in the witness stand, — when questioned by the prosecutor, if he had made success of the animal experiments with the plant, caladium seguinum, impossible, only because of his aversion to co-operate in Himmler's plan — that he made the animal experiments reluctantly and inaccurately, since he did not like to work for Himmler, and that, furthermore, there is no possibility nor way of making use of the plant, caladium seguinum, for sterilization or castration. An inaccurate or knowingly false exploitation of the animal experiments with caladium seguinum would, therefore, have been only a very praiseworthy, in fact unnecessary sabotage of Himmler's orders; it would not alter the fact that the problem of using the plant, caladium seguinum, for sterilization or castration still remains unsolved. This concurs with the unanimous opinion of all medical and pharmacological authorities, as can be found in the documents Pokorny No. 19, 20, and 30, exhibits No. 27, 28, and 30, and in the document of the prosecution No 3547, exhibit No. 546.

If we assume now, at first, that the defendant, Dr. Adolf Pokorny, was convinced from the beginning that the plant, caladium seguinum, was unfit for sterilization and castration, and if we assume that he wrote the letter to load Himmler astray and to prevent him from committing a crime on humanity, then there was doubtless no crime committed according to German Criminal law, because the will to see any objective characteristics of criminal acts realized is missing. He, who instigates an attempt which cannot succeed knowing that the experiment performed on his instigation is not a principal and must therefore remain exempt from punishment.

There is only one reproach one could make in this case against the defendant Dr. Adolf Pokorny. This reproach could be that he, even with the best intention, had mentioned the idea of a mass extermination, and that he should have considered that this idea would strike root in Himmler' mind, and that he (Pokorny) would become the author of an idea and a plant which would be executed by Himmler, even with quite different means and under quite different circumstances. In this case a sentence pursuant to article II 2 d of Control Council Law No. 10 would be possible, which states that a punishment may be imposed if someone is connected with the planning or the execution of crimes against humanity, without any regard to the intention of the person concerned. The only requirement is that the act was committed intentionally, and according to German criminal law the "dolus eventualis" would be sufficient in this case.

However, it has been shown by the evidence in particular and by this trial in general that the defendant Dr. Adolf Pokorny had not to discover the idea of a mass extermination, but that this idea existed a long time before he conceived it, and that Himmler's plan born from it was already executed to its full extent since 1941. In this respect I have already pointed out above the mass extermination in the gas chambers of Auschwitz, Maidanek and Treblinka and have referred to Document NO-204, Exhibit No. 162 which shows the intended sterilization of three to four thousand persons per day. It was not the defendant Dr. Adolf Pokorny who conceived the idea of a mass extermination or who established a plan for it, but this idea was already existent, and the plan, too, was existent consisting in the use of Zyclon B, in the surgical sterilization and the sterilization by X-rays, all of them means which were sufficient to execute the idea and the plan, even without the author of the letter, the defendant Dr. Adolf Pokorny. The defendant Dr. Adolf Pokorny therefore can only have shown a means for the execution of an established plan, and according to his own statement he only intended to do that, because he has stated that he had heard about this plan from an SD man, even if only in a vague and rough outline. The defendant Dr. Adolf Pokorny is therefore not a principal because in the actual execution of the extermination plan he has neither realized himself a characteristic of the actual fact by any action of his own, nor had he intended the success of the action as an action of his own.

According to German criminal law he is also not an instigator because the plan for committing the extermination had been established long ago. It was just this plan which he had heard about that inspired him for his action.

Himmler who had conceived the plan of extermination was already, and without his (Pokorny's) assistance determined to execute it. The instigation, however, would presuppose that the will for the crime is stimulated in the instigated person. This, however, was already abstractly impossible in view of Himmler's determination to execute his plan of extermination in any case, and an instigation to something which already is existent in the determination if the principal is impossible.

There only remains that the defendant Dr. Adolf Pokorny might have been an abettor. Such an abetment might have consisted in the fact that the defendant Dr. Adolf Pokorny has pointed to the plant Caladium seguinum as an efficient drug for mass sterilization for the purpose of extermination. Such a sterilization, however, has not been performed, neither in a single case nor in mass, and therefore much the loss has such an extermination plan been executed because the plant Caladium seguinum is completely inefficient as a drug for sterilization or castration purposes. Even if the defendant Dr. Adolf Pokorny had believed in the efficiency of the plant Caladium seguinum or if he had believed that in a near future it could have been made use of, this might have constituted at the best an abetment to an experiment with am inadequate means because, as we know today, the plant Caladium seguinum is objectively inefficient in the actual meaning for sterilization and castration purposes. Such an abetment to an experiment with an inadequate means would to be sure, be punishable according to German criminal law, but it would involve a doable mitigation of punishment, i.e. with regard to the experiment as well as with regard to the abetment.

In the present case, however, the evidence has shown that there is no question of an abetment as to plant Caladium seguinum has not been tested on any human being but only on animals. The execution of the crime which concerns us in the present case has therefore not been started, much the less the national extermination of millions of humans.

I have already explained above that the witness Dr. Koch stated that the reluctant and inexact performance of animal experiments as asserted by him could not alter the fact that chore was no chance to perform a sterilization or a castration with the plant Caladium seguinum, and that his explanations to this respect should not be interpreted in such a way as if without this kind of performance there would have existed a chance to sterilize or to castrate humans with Caladium seguinum. However, if contrary to this result of the evidence one would become reconciled to the idea that all the same this kind of performance by the responsible men of Koch and Madaus would be in any way connected with the impossibility of performing the sterilization with the plant Caladium seguinum, this too would not change the result, because a perpetrator, who is lucky enough that somebody else gets him off his aim when firing his pistol, is not a murderer anymore, since the success of his deed has been prevented even though this might have happened against his will and without his consent. However, I present this idea exclusively as a hypothesis since it cannot be supported by the evidence; the plant caledium seguinum in itself proves the impossibility of maintaining the idea of an "accomplishment".

The result of the above arguments is therefore that in this case everything should be considered as preparatory actions only. A preparatory action, however, is not punishable under German law. But what the defendant Pokorny did is therefore oven less punishable since he, from the legal point of view, rendered only assistance to such a preparatory action.

However, in order to take into consideration all actions and ideas which could be possibly considered I will approach the question whether or not a psychological assistance prevails, since the letter of the defendant Dr. Adolf Pokorny in one way or another resulted in, or could have resulted in, favoring the entire plant of extermination, above being considered as a mere recommendation of the medium (drug) to be applied. Such an effect could be seen in the fact that the approval of a plan might not incite a perpetrator, decided to commit the crime anyway, but might possibly encourage him in his decision. But here, too, can I only repeat what I have stated above already, namely the fact, that it is impossible to presume that Himmler needed an encouragement in his decision by the letter of the defendant Dr. Adolf Pokorny, because of his (Himmler's) criminal decisiveness to carry out the extermination which was proven already by the start of extermination of Jews. The phrases which the defendant Dr. Adolf Pokorny uses in his letter also were not needed by Himmler as an encouragement of his decision. They could not influence him. They only caused a reaction that the writer of the letter was a man who wanted to emphasize his devotion with all these phrases, more could Himmler not see from it. That excludes, however, a psychological assistance of the defendant Dr. Adolf Pokorny and here, too, does he remain free of guilt.

So far I have argued the interpretation of "committed crime", "instigation", "complicity", "attempt" and "preparation" in accordance with German law and have come to the result that a punishable act of the defendant Dr. Adolf Pokorny in the sense of the penal law does not exist; now I would like to examine the question whether the Control Council Law No. 10, considering the facts of this case, contains in itself a directive to the effect that a punishment of the defendant Dr. Adolf Pokorny is called for, based upon the fact that he had written a letter and mailed it to Himmler, regardless of the interpretation of "committed crime", "instigation", "complicity", "attempt" and "preparation".

First of all, there is no doubt that mass sterilization represents a crime against humanity, in spite of the fact that the ruler at that time, in this case Himmler, approved of such a crime against humanity, and had the power to prevent punishment of the perpetrator. That follows from Article III c which expressly states that the home Law (Heimatrecht) in a case like that is irrelevant. This provision, however, means in my opinion, only a reference back to general ethical standards which would consider the carrying out of such a plan criminal; those ethical standards cannot be influenced by accidentally opposing power conditions. This however, does not exclude, as I tried to prove so far, the fact that all general conditions of the German Penal Law, as far as the Control Council Law No. 10 did not change them, must be considered in the evaluation of such a crime.

First of all article II 1c provides that all crimes hereby regulated have to be completed since article II 1c deals with inhumane acts, murders, rapes etc. which had been actually committed.

From that one may draw the conclusion that a pure planning of such a crime against humanity is not punishable under article II 1c if the crime itself was not completed.

Also article II 2d of the Control Council Law No. 10 does not say anything different. If, following this article II 2d, the planning of a crime is already a punishable crime, this does not mean the exclusively preparatory action, but the planning means here an actual participation in the crime and calls for a direct action and actual beginning of activities. Would an act have been committed the participant would even then be punishable if he would not have participated in the punishable act himself. In the case under consideration, however, an actual realization (of the plan) did not take place, because the plant Caladium Seguinum has been tested exclusively on animals but not on human beings, and only the experiment with human beings would represent an actual realization (of the plan). It appears unnecessary to me to repeat gain in detail what I have stated above, namely that the plan of extermination existed long before Pokorny's time, that Himmler was decided to carry out a mass extermination in any possible way, even by sterilization, and that the defendant Dr. Pokorny only suggested a useless medium. Nothing happened because of this useless medium and nothing could happen; all that did happen, because of the suggestion of the defendant Dr. Adolf Pokorny, remained within the limits of preparatory actions to a crime against humanity. Since, however, such a preparatory action is not punishable under Control Council Law No. 10, a participation in such an action cannot be punishable either.

I have already examined the fact as to how much the defendant Dr. Adolf Pokorny influenced the entire plan of mass extermination.

It has now to be determined how far he is possibly responsible under the penal provisions of Control Council Law No. 10. Under a-d article II 2 of the Control Council Law No. 10 four ways of participating in a crime are listed, which can be applied to the case of the defendant Dr. Adolf Pokorny.

According to article II 2a a person can be punished who has collaborated actively in committing a crime against humanity. The defendant Dr. Adolf Pokorny cannot be considered as having participated actively since he has not committed any act directed towards the execution of the crime and since he did not intend to commit the act as his own, but only intended to give a hint to Himmler.

According to Paragraph II 2 b he who aids the perpetration of such a crime or has ordered or supported it is liable to be punished. Defendant Dr. Adolf Pokorny had no authority to give orders, neither could he lend his support since conceivably this would only have been possible after the deed had been committed.

If in the following I now define my attitude regarding the word "Beihelfer" I am aware that this word is derived from the translation of the English "accessory". The German translation "Beihelfer" refers to a certain extent to the institution of aid according to German law, consequently, essentially it would comprise the idea of the accessory's participation. English law however makes no substantial difference between abettor and aider. This is also not surprising, for the question of German aid has just shown us that the instigation includes such aid and on the other hand there is always a weaker form of instigation in psychological aid. The gradual difference in the criminal mind when abetting and when aiding can be brought about by punishment of the individual case, but does not necessitate that both conceptions must be separated.

Under the word "Beihelfer" the instigation as well as a psychological aid can therefore be subsumed. Now I have already stated above that there is no question of defendant Dr. Adolf Pokorny being an abettor, nor could he have given psychological aid. I have thereby pointed out that Himmler in his plan of mass extermination did not first need to be instigated and also did not receive any psychological assistance, as the wording of the letter from defendant Dr. Adolf Pokorny shows. Insofar a participation of defendant Dr. Adolf Pokorny, according to the conceptions of the instigation and the psychological aid does not exist, since there can be no thought of an abetting in these methods without the success not coming off. Himmler however would have still continued his plan of mass extermination without defendant Dr. Adolf Pokorny's letter and his letter has insofar no influence on the whole plan. The letter can easily be omitted without the situation being changed in the least. Therefore, the actual form of aid is eliminated since defendant Adolf Pokorny only aided the preparatory act. In this regard too I have already made sufficient statements above. I have pointed out that beginning to carry out a criminal act on humanity can only be seen in the use of the Caladium seguinum plant on a human being and that the mere animal experiments can be regarded as an act of carrying them out. According to Paragraph II 2 c, he who has participated by consenting to a crime on humanity is furthermore liable to punishment. The English text says: "took a consenting part therein." The English wording shows that more than mere shouting or writing is needed; therefore, in my opinion the mere consent is not sufficient, especially as otherwise all journalists would have been guilty of a crime on humanity, but rather is it necessary that by consenting some condition has been laid down for the success.

However, I have already stated above that it is true that the whole plan may have been influenced by defendant Dr. Adolf Pokorny's letter, but as regards this I have stated further that Dr. Adolf Pokorny's position, having had no connections with authoritative men and not having belonged to an organization, was much too subordinate and unimportant to enable him to influence or direct Himmler in any way by his letter. However, Dr. Adolf Pokorny's consent, as it is objectively manifested in his letter, is thereby not casual for a crime committed on humanity and with that the presumption of the facts, as laid down in Paragraph II 2 c, is not fulfilled.

Finally, I still have to deal with the question of applying Paragraph II 2d, according to which he who has been associated with the planning or execution of a crime against humanity is liable to punishment. I have already stated above, when dealing with the question as to whether a punishment according to Paragraph II 1c is concerned, that the definition of the Control Council Law No. 10, paragraph II, 2 d, points out that since there it is only a question of acts committed, a mere preparatory act is not sufficient. In itself it would be contradictory if the definition of crimes on humanity would emanate from accomplished deeds, but in the interpretation reference would be made to preparatory acts not actually committed crimes on humanity, so that when interpreting the law a broader view on penalty would be taken than the law itself demands.

Systems of criminal law, too, so far as I can ascertain at times expressly contain a special indication where the legislator wishes to provide for punishment of a preparatory action, too. Thus a preparatory action in German criminal law, although it is otherwise not punishable, is expressly made subject to punishment by the former regulations regarding high treason. Exactly the same thing, however, is true in my judgment of Control Council Law No. 10. From the fact that punishability of a preparatory action is not expressed, it follows conclusively that it is not intended to be punishable.

Such punishment, of course, can only be justified when a contain causality exists, which is manifested by the fact that the idea conveyed, the plan, the agreement, or the consent contributed to the success of some cause.

Anyone whose plan or idea had no result, however, remains unpunished like any journalist or letter writer who, on both sides of this war, may have expressed ideas about the treatment of the opponent, ideas which, looked at objectively, in themselves were objectionable according to ethical standards. To what extent beliefs are to be punished here is another question. In the case of German citizens they would have to be judged according to the de-Nazification law. Control Council Law No. 10, however, recognizes no crimes of belief, but only crimes of action. The motive of the defendant, Dr. Adolf Pokorny, then, need not be considered here at all. It need only be considered that the total plan for extermination was already will established in Himmler's mind, was not influenced by the letter of the defendant, Dr. Adolf Pokorny and his suggestion which the defendant, Dr. Adolf Pokorny, gave Himmler in his letter did not get beyond the stage of a preparatory action, which in itself is not punishable, so that the aiding and abetting of this preparatory action by the defendant, Dr. Adolf Pokorny, must remain unpunishable even in accordance with the special factual provisions of Control Council Law No. 10.

If I take a position in regard to the question of the conspiracy, I do so — in view of the statements of the counsel for the defense whom I succeeded and the fact of the conclusion reached in Military Tribunals I, II, and III in regard to the question of the "conspiracy" — merely with a general reference to the fact that in the case of the defendant, Dr. Adolf Pokorny, in my opinion, there is no foundation for implicating him in a conspiracy. The mere fact that in my legal opinion the defendant, Dr. Adolf Pokorny, has not made himself culpable under Control Council Law No. 10 excludes the possibility that he could have taken part in a conspiracy, as claimed here by the prosecution. Added to that are the general circumstances, from which it follows that the defendant, Dr. Adolf Pokorny, neither belonged to a Party organization nor to a government agency, but was an independent country medical practitioner in Komotau at the time when he wrote the letter. The fact, too, that he knew neither Himmler nor anyone else personally, and especially none of the defendants here, makes it impossible for me to believe that he was implicated in a conspiratory circle.

The defendant, Dr. Adolf Pokorny, wrote his letter by himself. He had a very definite goal in view and nowhere expressed the thought that he wished to be included, in anyway, through his letter, in the Himmler circle.

But Himmler, on the other side, was much too all-powerful and much too presumptuous to have been tempted to draw such an insignificant man as the defendant, Dr. Adolf Pokorny, was in comparison to him, into his circle and to let him participate in anything. Himmler did not even deem the defendant, Dr. Adolf Pokorny, worthy of a reply.

Pohl, in his letter to the deputy Gauleiter [regional or district leader] of Niederdonau, Document No. 042, Exhibit No. 155, writes 10 months after the date of the letter of the defendant, Dr. Adolf Pokorny, that Himmler had applied himself at his — Pohl's instigation — the problem of sterilization with the plant, caladium seguinum, many months earlier. So unimportant was the defendant, Dr. Adolf Pokorny, for Himmler in this connection that Pohl even designated himself as instigator of the idea of sterilization with the plant, caladium seguinum, although the defendant, Dr. Adolf Pokorny, had written a letter about this subject; this letter, however, had apparently been forgotten long ago.

Since, on the one hand, a decision on the question as to what motive lay behind the letter of the defendant, Dr. Adolf Pokorny, can, in case of doubt, be made in favor of the defendant, Dr. Adolf Pokorny, on the basis of an ancient legal principle, and on the other hand according to my legal view-point no punishable fact exists at all within the meaning of Control Council Law No. 10, I propose the acquittal of the defendant, Dr. Adolf Pokorny.

THE PRESIDENT: When the Tribunal reconvenes we will hear from counsel for the defendant Hoven and counsel for the defendant Becker-Freyseng.

The Tribunal will be in recess until 1:30 o'clock.

(A recess was taken until 1330 hours.)