1947-07-18, #4: Doctors' Trial (early afternoon)

Dr. Gawlik, counsel for defendant Waldemar Hoven, presents his closing argument

AFTERNOON SESSION (The hearing reconvened at 1330 hours, 18 July 1947.)

THE MARSHAL: The Tribunal is again in session.

THE PRESIDENT: The Tribunal will now hear from counsel for the defendant Hoven. Counsel will have one hour or until 30 minutes to three o'clock.

DR. GAWLIK (Counsel for the Defendant Hoven): Your Honors. Mr. President, gentlemen of the Tribunal:

"Quet homines, tot sententias" There are as many opinions as there as people. Especially now, at the conclusion of the evidence in the proceedings against Dr. Hoven. One realizes that this phrase of Cicero's is not generally applicable. Everyone who has experienced the submission of evidence against Dr. Hoven should see clearly one point: this man is not what the prosecution has represented him as at the beginning of the trial in this court room.

This man is not the typical representative of the camp physicians in the concentration camps. This man is by no means the typical representative of those accomplices who willingly supported Himmler in carrying out his program on destruction in the concentration camps.

Not long ago, the press, the mouth piece of public opinion, presented the following question to the public: Is Dr. Hoven guilty at all? And if one may speak of any guilt in this man, has he not already been punished through his suffering in the concentration camp of Buchenwald, when he was imprisoned by the Gestapo from September 1943, and, finally through the further restriction of his personal liberty until this day?

It is significant that this question is being discussed at all in public and that Dr. Hoven is not simply condemned because he worked in a concentration camp as a doctor.

Is Dr. Hoven guilty? According to the indictment, when answering this question, two things must not be omitted.

1. Merely a question of law must be decided. When making this decision, one should be guided however by any moral or ethical principles.

   This question must rather he decided soberly and without passion, just as the proceedings were carried on in this court room, solely and only according to principles of law, the principles which jurisprudence has developed during the course of centuries on the basis of the laws of logic.

2. When answering this question, the yardstick of normal times and conditions must not be applied. The extraordinary conditions of those times rather must be considered instead, under which the defendant Dr. Hoven has acted.

The great Roman philosopher and poet, Lucrecius, has already said in his well known work about "The Nature of Things"

During a high sea and turbulent winds, it is comfortable to watch the effort of others from ashore.

It is of course, very simple for someone who has not experienced what went on inside a concentration camp surrounded by electrically charged wires, to say: The life of one man, even that of a criminal is sacred. The killing such a person therefore is wrong under all circumstances.

This difficult problem can not be solved with such philosophical or religious doctrines which do not have even general validity. No decision of law or of justice can be based on this.

I have therefore endeavored to answer in my closing brief the charges that were brought against Dr. Hoven only by taking into account the general principles developed in law and jurisprudence.

The indictment against Dr. Hoven can be summarized in the following three points.

1. Participation in a conspiracy

2. Commission of war crimes and crimes against humanity

3. Membership in an organization which has been declared criminal by the International Military Tribunal, namely membership in the SS, which was called criminal by the IMT.

Concerning Point II Dr. Hoven is charged specifically with:

• collaboration in the typhus experiments in Buchenwald.

• Participation in carrying out the Euthanasia Program.

I wish to treat count #3 — Membership in the SS. In this connection I refer to pages 203 — 205 of the closing brief. There I have shown in detail that Dr. Hoven:

1. Left the General SS before 1st of September 1939.

2. Did not join the Waffen SS voluntarily after the first of September 1939. He was drafter rather, into the Waffen SS by the State in such a way that he had no other choice.

Here I want to treat in detail only count of indictment #2, "Commission of war crimes and crimes against humanity."

On pages 10 to 15 of my closing brief I have, first of all, explained the legal problems. Considering prior studies of the science of International Law which preceded the drafting of Control Council Law #10, especially the report of the Inter-American — Juridical Committee of the 30th of July 1945, I must come to the conclusion that war crimes, within the meaning of Control Council Law #10, are only those violations of law and common usages of war as were perpetrated on member of the United Nations.

The prosecution has tried, in its final plea, to justify the application of Control Council Law # 10 to punishable actions committed against Germans by saying that Law #10 was not only a principle of International Law, but also simultaneously a National Law of Germany. I wish to make the following reply to the prosecution:

Application of Law #10 as a national Law of the country should be a matter reserved to the German Courts only.

According to recognized rules of International Law, the judges of an occupying power are only competent for criminal acts which threaten public order and safety in the area administered by the occupying power. This can be seen from article 43 of the Hague Convention 1907. Moreover, the principles of International Law confirm competence of the occupying power for criminal acts which are committed during the occupation, and for the prosecution of crimes, i.e. violations of laws and usages of war, perpetrated on members of United Nations. International Jurisprudence does not recognize the competence of courts of the occupying power to exceed these functions.

During the occupation of Belgium in 1914-18 the German Reich was reproached for having instituted courts for the prosecution of those crimes, courts which did not meet these prerequisites.

In this connection I refer to the statements of the well known American teacher of International Law, James Wilford Garner and his work: "International Law and World Order" Volume II page 81 especially on page 78 where Garner writes expressly that the jurisdiction of Tribunals of the occupying power is restricted to violations of a military nature only.

The prosecution of individuals for crimes against humanity is unknown in International Law. This can be seen from the aforementioned report of the 30th of July 1945 which was composed, among other, by the well-known American teachers of law, Campos, Fenwick, Costa, Robedo, and Nieto del Rio. This report expressly states that only the most serious violations of the laws of warfare can be considered as crimes against humanity. This view coincides with the opinion of the International Military Tribunal which also did not consider crimes against humanity as separate criminal acts, but which expressly declared that a crime against humanity is only then committed if this action simultaneously involves a crime against the peace, that is, if this constitutes preparation for a war of aggression or a war crime.

I now come to the result set down on page 15 of my closing brief. Crimes against humanity are only punishable if they simultaneously fulfill the act of a war crime, or if they were committed in connection with, or in execution of, a war of aggression, and the most serious crimes are to be considered as crimes against humanity.

Since in this proceeding the charge of preparation or execution of a war of aggression has not been made, a crime against humanity is only given if the prerequisites of a war crime exist.

In part B of my closing brief I have then evaluated the results of the evidence.

If I have understood correctly, the prosecution has explained in its final plea that in this proceeding not every piece of evidence should be considered by itself. This maxim is incomprehensible to me.

In a criminal proceeding the probative value of each piece of evidence must, first of all, be carefully investigated and after such an investigation, the evidence, in toto, can justify the finding of guilt.

I have confronted the charge of execution of typhus experiments with four defensive assertions:

1. The defendant Dr. Hoven did not act as the deputy of Dr. Ding-Schuler constantly but formally represented him once only temporarily in Block 44 and 49 without undertaking any action. During the time of acting as deputy, no typhus experiments were carried out.

   The defendant was Dr. Ding-Schuler's permanent deputy only in Block #50 where the vaccine for German Wehrmacht troops wan produced.

2. The defendant Dr. Hoven did not participate in typhus experiments in block 46.

3. The defendant Dr. Hoven, as far as was possible for him, tried to prevent the execution of typhus experiments.

4. The defendant Dr. Hoven did not select the experimental persons. Merely because he could not prevent execution of these experiments ordered by Himmler and upon irrigation of the illegal camp leadership he revised the selection of experimental persons, to prevent in this way, the use of political prisoners and especially non-German prisoners for these experiments.

For particulars I refer to statements in my closing brief pages 16 to 69.

I draw the attention of the Tribunal especially to my statements on pages 37 to 41 where I answer the views of van Leeuwarden and Hans Vondeling. There I have explained that the statements of these two persons have no probative value for the following formal and material reasons.

1. Both persons failed to make their statements under oath. In a criminal proceeding, however, a person can only be given monetary fine or sentenced to suffer forfeiture of liberty by reason of a sworn deposition. This general procedural rule of all civilized states applies also to American court procedure. The legal comments about this point are set down on page 26 of my closing brief.

2. Both persons were not subjected to cross examination although I applied for this expressly in the session of the 23rd of June 1947, as is shown on page 10113 of the German transcript.

   I have repeated this application in writing on the 26th of June 1947.

   Although, the prosecution holds the opinion that I was granted the right of cross examination because these two persons were interrogated in Holland by a commissioner appointed by the court. The prosecution has here however overlooked the fact that according to American Law the privilege of cross examination is only then extended if the witness appears personally in court and is confronted with the defendant. These legal principles have been set down in detail on page 39 of my closing brief where I quote decisions of American courts of Justice.

3. 3) The testimonies of Hans Vondeling and of van Leeuwarden have been shaken by the statements of the witnesses Dorn, Pieck and De Witt as set down in detail by me on pages 39 to 41 of the closing brief in reference to decisions of American courts of Justice.

   It can therefore be considered as proved that Dr. Hoven did not participate in any way in the execution of typhus experiments in the Concentration Camp Buchenwald. Furthermore, the evidence has shown that Dr. Hoven did everything in his power to prevent the execution of these experiments which had been ordered by Himmler. Hoven was the first and only camp physician who undertook to work against the order of Himmler insofar as he prevented to have prisoners of the Buchenwald Concentration Camp infected with typhus lice. Details may be found on page 46 to 50 of my closing brief.

Dr. Hoven is further charged, in connection with the typhus experiments in Buchenwald, with having selected the experimental persons. The evidence has shown in thin respect that Dr. Hoven did not select any persons, but that he moreover, only temporarily upon instigation of the illegal camp leadership revised the selections of domestic and foreign political prisoners, so as to prevent in this way, that the political department, i.e. the Gestapo, used political and thus non-German prisoners to carry out these experiments. The results of the evidence to these points is found on pages 50 — 62 of the closing brief.

In order to prove the correctness of its assertion that Dr. Hoven participated in the typhus experiments in the concentration camp Buchenwald, the prosecution referred specifically to the affidavit which Dr. Hoven submitted on 24 October 1946.

This statement lacks all probative value because the conditions for submitting an affidavit which the Tribunal imposed in the session of 3 January 1947 were not fulfilled. My attitude in regard to the affidavit can be found in detail in pages 63 — 68 of the closing brief.

I would like to emphasize here only the following points of view:

During his examination on the witness stand Dr. Hoven stated in deatil, in the afternoon session of 21 June 1941 and in the morning session of 23 June 1947, that he did not know a large number of the English words which the affidavit contains.

The words which Dr. Hoven did not know can be found in the transcript of the morning session of 23 June 1947. The ignorance of these words shows that the defendant Dr. Hoven did not understand the meaning of the affidavit submitted by him. I am, however, very grateful to the prosecution for having submitted the transcript of the interrogation of Dr. Hoven on 22 and 23 October 1946, in the form of Document NO 4068 and 4069, shortly before the presentation of evidence was completed. They can be found in Document Book XIX page 105, 116 English. I have stated on page 64 and 68 of the closing brief the Dr. Hoven, during his interrogations on 22 and 23 October 1946, said something entirely different than what is contained in the English affidavit of 4 November 1946 which was made out by the prosecution as a result of this interrogation. Lack of time prevents me from going into this matter in detail at this point. Therefore, I merely wish to point out one serious contradiction, During his interrogation on 22 October 1946 Dr. Hoven made the following statements concerning the selection of experimental subjects:

An In selecting prisoners in Buchenwald for the experiments which were carried but by Dr. Ding it was not officially necessary that I make such a selection or sign these lists. Dr. Ding could have simply given the order to make the necessary number of prisoners available. But I did personally concern myself with the selection, since I was asked by the prisoners who did not deserve it would not become victims: I tried to pick only those people who were known to be criminals. After I had left Buchenwald, the same system of selection was no longer retained and the prisoners were simply made available to Dr. Ding by Schober.

Thus Dr. Hoven has unequivocally expressed that he concerned himself with the selection of experimental subjects only to prevent in this way the Use of political prisoners, especially non-German prisoners, especially non-German prisoners, for these experiments.

The affidavit of 24 October 1946, however, contains the opposite. There it says: according to the demand I chose various prisoners at random from the list of names. That is end of his quotation. This is entirely different from what Dr. Hoven said during his interrogation of 22 October 1946.

Dr. Hoven never said that he:

1. selected prisoners according to demand and

2. he did not say that he selected prisoners at random and

3. he did not testify that he selected prisoners according to the list of names.

Thus no word in the affidavit of 24 October 1946 corresponds to the statements submitted in the transcripts of 22 and 23 October 1946.

Thus the following can be aid as a result of the evidence:

1. The defendant Dr. Hoven was not the permanent deputy of Dr. Ding in the typhus experiment block 46 of the concentration camp Buchenwald.

2. The defendant Dr. Hoven did not participate in the typhus experiments in block 46.

3. The defendant Dr. Hoven prevented the carrying out of typhus experiments as far as it was possible for him to do so.

4. The defendant Dr. Hoven did not select the experimental subjects for the typhus experiments.

It is a source of special satisfaction for me that in this matter I agree with the opinion which the prosecution already expressed before bringing charges against Dr. Hoven. During the interrogation of 22 October 1946 which I have repeatedly mentioned, the representative of the prosecution said the following about Dr. Hoven:

You are lucky that you are not involved in medical experiments. You participated in an unimportant matter.

This can be seen from the transcript of 22 October 1946, Document NO 4068, Document Book XIX, page 32 German, page 94 English.

I now come to the charge brought against Dr. Hoven that he participated in the euthanasia program.

This is the second war crime and crime against humanity with which the defendant Dr. Hoven is charged.

The statements of the prosecution concerning the count of participation in the euthanasia program are not without contradictions.

The prosecution stated, in the opening speech of 9 December 1946, that Dr. Hoven had personally ordered 300 to 400 Jewish prisoners to be sent to Bernburg.

In the course of the presentation of evidence, the prosecution claimed that the defendant Dr. Hoven had participated in measures ordered by the highest authorities of the German Reich in connection with the euthanasia program.

It follows from the speech by the prosecution itself that the defendant Dr. Hoven could not at all give the order to send 300 to 400 Jews to Bernburg. The prosecution has stated, in great detail, that a great many agencies were set up for that purpose. Agreeing with these statements of the prosecution, the prosecution witness Dr. Mennecks has expressly said that he did not think it possible that Hoven gave such an order, because this transfer to the euthanasia institute was taken care of by Berlin. Confirming this, the prosecution witness Roehmhild said that the transport from Buchenwald to Bernburg were ordered, by higher authorities. The result of the evidence on this count can be found in detail on pages 70 to 77 of my closing brief.

But Dr. Hoven did not participate in the carrying out of the euthanasia program, as I have shown in detail on pages 78 to 79 of the closing brief. In this connection, I call the attention of the court to the testimony of the witness Dr. Mennecke. It was Dr. Mennecke who selected the prisoners in the concentration camp Buchenwald, who were transferred to the euthanasia institute to be gassed. Dr. Mennecke is the only witness who, because of his activities, know best whether Dr. Hoven participated in the euthanasia program.

Dr. Mennecke, a prosecution witness, has expressly testified that Dr. Hoven in no way participated in his work, that is Mennecke's work, in Buchoenwald. Specifically, Dr. Hoven did not fill out the questionnaires and did not make up any lists for the medical commission. Nor did Dr. Hoven select the prisoners for action 14 F 13 as was customary in some other concentration camps. The testimony of Dr. Menneck agrees with the statements of the witnesses Dr. Horn and Dorn and Gottschalk, Dr. Hoven's secretary, who had been Dr. Hoven's secretary for many years. The testimony of Dorn shows that only one transport left Buchenwald for Bernburg, and this was towards the end of the year 1942. In this matter Dr. Mennecke testified that he selected the prisoners for this transport without the collaboration of Dr. Hoven. I have continued to comment on the testimony of Roehmhild whose testimony is partly contradictory to the evidence, and I have presented the reasons, citing procedural principles developed in American law, why the testimony of Roehmhild and Dr. Kogon cannot properly dispute the statements of the prosecution witness Dr. Mennecke and the defense witnesses Dr. Horn and Dorn. Roehmhild and Dr. Kogon could not, on the basis of the positions they then hold in the concentration camp Buchenwald, have the necessary knowledge as to how action 14 F 13 was carried out. Beyond that, the evidence has shown that Dr. Hoven prevented action 14 F 13 in collaboration with the illegal camp management of the concentration camp Buchenwald by means of a counter-action which was designated 13 F 14.

It can be seen from the letter of Dr. Mennecke to his wife, submitted by the prosecution, and from the testimony of Dr. Mennecke, that 1200 Jews were to be sent to Bernburg in four transports to be gassed.

But as the prosecution itself has said, only one transport actually left. The other transports were prevented from leaving by the defendant Dr. Hoven, as the prosecution witness Dr. Kogon has confirmed in agreement with the prosecution witness Dr. Roehmhild and the defense witnesses Pieck, Gottschalk, and Dorn. In this connection, I call the attention of the court to the testimony of Dr. Kogon which I have cited on page 102 of the closing brief. Dr. Kogon testified as follows:

I know that, as far as I remember, four transports were to leave for Bernburg in 1942, and these involved chiefly Jews. I believe that at least one transport left. The remaining transports were prevented from leaving through the intervention of Dr. Hoven.

Dr. Kogon also described in what way Dr. Hoven prevented the transports from being made up. In this respect I refer to my statements on page 101 of the closing brief. These statements were supplemented by Dr. Hoven when he was on the witness stand. This evidence also agrees completely with what Dr. Hoven already said in his interrogation on 22 and 23 October 1946. Dr. Hoven stated already at that time that he did not examine the Jews. Dr. Hoven definitely said already then that he never sent any person to Bernburg. When the interrogator put it to him, he declared that there must be evidence in existence to prove that he hid 700 Jews who were to be sent to Bernburg. This I have mentioned on Page 109 of my closing brief.

The result which therefore can be ascertained is, that Dr. Hoven took no part in the action 14 F 13 under which code the Euthanasia program was carried out in the concentration camps. He rather prevented the execution of the Euthanasia program, as far as it was in his power, and it is only duo to those measures of Dr. Hoven which he undertook unselfishly and by risking his life, that 800 to 900 Jews didn't meet their death in Bernburg but survived their camp time in Buchenwald.

This has been confirmed expressly by the witness Dr. Kogon. Dr. Kogon stated that it was due to the stops which Dr. Hoven undertook, together with the illegal camp management, that a considerable number of Jews was still left in the concentration camp by the beginning of 1945.

In two further parts of my Closing brief I dealt with the killings which Dr. Hoven either undertook himself or which were undertaken with his knowledge.

In part b), page 112 to 117 of the Closing Brief, I stated that those killings had no connection with the Euthanasia action 14 F 13.

Further I stated, that it can be regarded as proved that Dr. Hoven killed only two prisoner's himself and that about 5O or 60 prisoners were killed by order of the leadership of the German and foreign political prisoners with the knowledge of Dr. Hoven.

A legal evaluation of those killings I have set forth in a further paragraph under cypher on pages 118 to 147 of the Closing Brief.

The legal arguments as set forth in the Closing Brief are taken from the work of the well known American criminologist Wharton, which is called Criminal Law. The first part of this argument contains, under cypher e), the following literal quotation from this book:

According to Common Law, the killing of a man can be either:

1. murder

2. manslaughter

3. excusable homicide

4. justifiable homicide Excusable homicide and justifiable homicide are not punishable.

The present American law does not differentiate between justifiable homicide and excusable homicide. I refer to my Closing brief, particularly to the statements of Wharton in his book "Criminal Law", 12th edition, vol. I, 1932, pages 826 to 879. According to Wharton excuse and justification for a homicide are either:

1. repulsion of felonious assault,

2. prevention of felony.

The right of self defense, i.e. repulsion of felonious assault is restricted to a narrowly defined number of persons.

On the other hand, everybody is entitled to prevent a crime. I refer to the details contained in my legal arguments, pages 119 to 122 of my Closing Brief.

Killing a man to prevent a felonious crime requires the following conditions which are set forth on page 122 of my Closing Brief:

1. The perpetrator must have the bona fide belief that the commission of a felonious crime is immediately impending. It is not a condition that such a crime would actually have been committed. Rather the bonafide belief of the accused is quite sufficient. In this connection I refer to the legal arguments on page 121 of the Closing Brief.

2. This belief of the accused must not be negligently adopted.

3. There must not be any other possibility of preventing a crime than the killing of a person. In other words — the killing must be the only means available to prevent the crime.

The prosecution's assertion in its final plea, "One must not kill five to save five hundred", therefore can not be considered generally valid either from the point-of-view of German or American law.

On the basis of the statements of the prosecution, I have not been able to see clearly whether that sentence had reference only to the justification of experiments on human beings or else to the killings which were carried out by Dr. Haven or with his knowledge.

The justification of the killings is materially distinguished from that of the experiments. Those spies, stool pigeons and traitors for whose killings Dr. Hoven accepted responsibility when in the witness stand, had planned to commit serious crimes on their fellow-prisoners. Therefore, if the three pre-requisites which I mentioned, are given, we are concerned with cases of justifiable or excusable homicide.

On pp. 123-125 of my Closing Brief, I elaborately explained that those conditions existed in the case of all the killings for which Dr. Hoven accepted the responsibility.

1. The defendant Dr. Hoven had the conviction and good faith that the spies and traitors who were killed by him or with his knowledge, were about to commit serious crimes, resulting in the death of numerous inmates of the Buchenwald concentration camp. During his examination on the witness stand, Dr. Hoven gave a thorough description of this.

   The decision on these killings was not reached by Dr. Hoven on his own.

   Dr. Hoven had no cause for that. It was not his life that was endangered by those spies or traitors. It was rather the committee of political domestic and foreign prisoners, many of whom are today holding high office in their countries. Those personalities guaranteed to Dr. Hoven that only such individuals would be killed who already had been active and would continue to be active as spies and as traitors. These statements by Dr. Hoven were particularly confirmed by a number of witnesses who were heard on this. These observations may be found in the affidavits I submitted. Above all it has been proven that only such people were down away with of whom Dr. Hoven held that conviction. Dr. Hoven testified to that effect and it has been re-affirmed by the witnesses Dorn, Dr. Kogon, Seegers and Hummel.

   In his interrogation of October 23, 1946, Dr. Hoven stated expressly that he killed or knew only of the killings of such persons of whom he was certain that their deaths were necessary to safe the lives of a multitude of political prisoners from the various countries. At that early date already he expressly stressed that he refused to carry out any of the killing orders of the camp commander Koch; the prisoners who were covered by his orders were put into the Hospital or hidden in some other way by Dr. Hoven.

2. Dr. Hoven had not negligently adopted the conviction that their killing was essential for the salvation of huge numbers of prisoners.

   This is proved first of all through the testimony of the witness Dorn, who gave many details as to the means and methods employed by Dr. Hoven and the illegal camp administration in the conviction of the necessity for the killings. Dr. Hoven supplemented those statements. Furthermore they were corroborated by the testimony of the witness Hummel, Dr. Kogon, Seegers, Philip Dirk, Baron von Palladnt van Eerde through their affidavits. I refer to pp. 13L 135 of my closing brief.

3. Actually, the prevention of the planned crimes, i.e., the mass murder of a multitude of domestic and foreign political prisoners, could be accomplished only through the killing of the spies and traitors. There was no other means. What should Dr. Hoven have done to prevent the crimes planned by the spies and traitors? Those spies collaborated with the S camp commanders to carry out Himmler's program to destroy the political prisoners. To whom should Dr. Hoven have turned? Perhaps the the SS camp commanders who worked with the spies and traitors? Or perhaps to the Gestapo or to the police who worked under Himmler's orders?

   There was no other way but the one which Dr. Hoven went in order to prevent crimes.

I showed that with details on pp. 136-147 of my closing brief. There, I assembled the testimonies of the witnesses of prosecution and defense who were heard on this point.

Here, I merely wish to stress the following statements by the witnesses:

In this court room, Dr. Kogon, a convinced Christian and a deeply religious man, said:

There was really no other possibility for the men of the illegal camp administration. I, as a convinced Christian, do not deny those men the right to have killed people in an emergency who in collaboration with the SS endangered the lives of individuals or of many.

End of my quotation.

The witness Pieck stated:

It may be that the liquidation of many green inmates and of SS spies employed in the camp may make Dr. Hoven a murderer in the eyes of many; yet, for me and others who understood the real situation, he was a soldier fighting on our side and risking very much.

This very opinion, Pieck — as stated here — expressed also in a letter to the Dutch Minister of Justice, a letter that was so—signed by the City Council of Amsterdam and Mr. Droering, head of a department of the State Institute for War Documentation in The Hague.

Pieck is one of the few who are best equipped to answer these questions, for he belonged to the Committee of domestic and foreign political prisoners which formed itself at Buchenwald.

Father Katjetan, presently Supreme Abbot of one of the largest religious orders in Czechoslovakia, declared that as a prisoner of the concentration camp Buchenwald in the presence of witness Dr. Horn that those killings were an inevitable necessity for the preservation of the inmates who had been abandoned by justice in the camp.

Even the witness of the prosecution, Roemhild, had to admit on the stand that it would have been impossible to save 20,000 prisoners if those spies or traitors whom Dr. Hoven killed or of whose killing he knew, had remained alive.

Let me ask in this connection: What would have happened if a man of Kushnir Kushnarev's calibre had not been killed, and if the murder of the Russian POW's in the Buchenwald camp had been continued? Would Dr. Hoven not stand before this Tribunal even then? Then, would not the same charge be made against Dr. Hoven as the one leveled against the Japanese Governor of the Philippines who was tried before an American Military Court for not having prevented atrocities mid abuses?

In another part of my closing brief I summarized the result of my evidence concerning the good character and refutation of Dr. Hoven in the Buchenwald concentration camp.

On the basis of Wharton's Evidence in Criminal Cases, I described the legal basis of my reasoning and my evidence, by stating.

1. the admissibility of the evidence.

2. the limits of the evidence.

3. the nature of the evidence.

4. the value of the evidence for the problem of Dr. Hoven's guilt.

My evidence in regard to Dr. Hoven's good character and reputation, as given on pp. 121-202 of my closing brief, led to the following result:

1. The defendant Dr. Hoven saved the lives of numerous inmates.

2. Dr. Hoven helped numerous prisoners to regain freedom.

3. Dr. Hoven assisted the prisoners of the Buchenwald concentration camp in their fight for life.

4. The defendant Dr. Hoven as the first SS man attempted, as far as in his power, to prevent the application of beating as penalty.

5. Dr. Hoven carried out numerous improvements of medical care in the Buchenwald concentration camp

6. Dr. Hoven treated the inmates always humanely.

7. Dr. Hoven's good character is shown particularly by his attitude towards the Jews.

The taking of evidence concerning Dr. Hoven's good reputation in the Buchenwald concentration camp resulted in such a wealth of material that it is not possible to mention all details. Above all, it has been proven on the basis of evidence that Dr. Hoven resisted measures by high SS officials, particularly orders of Himmler.

The Prosecution in the course of the evidence repeatedly asked some defendants to list actions that could be interpreted as resistance.

I deeply regretted that the Prosecution did not submit this question to Dr.Hoven in his cross examination, too. Dr. Hoven would have been in a position to mention not only one, not ten or hundred, but many hundreds of acts by which he resisted the orders of highest authorities.

Let me mention only the case of the seventeen-year-old Jewish inmate; of whom the witness Dorn spoke, an incident I included in my closing brief on p. 196. Dorn related in how moving a manner Dr. Hoven gave medical care to that prisoner, and that he repeatedly went to the sick bed of that Jew, asking him, "Have you any wish?"

From those facts the witness drew the only correct conclusion which I could not better phrase myself.

Your Honors; I can not imagine that a man who exerts great effort on behalf of a Jew, who in the Nazi state really was denied the right to live, asked him for his wishes and hides him in the hospital — that this man should arbitrarily kill prisoners and permit killings which were necessary in the interest of the preservation of the lives of many prisoners.

Furthermore, the witnesses Dorn and Pieck agreed that Dr. Hoven, after the liberation of the camp by the American troops was taken from an American tank by the Jew August Kohn, the trustee of the Jews in the illegal camp administration. Dorn also described how Kohn addressed an American officer: "Sir, don't harm this man, he fought in our own ranks."

At that time there were hundreds, nay, thousands of witnesses in Buchenwald who knew Dr. Hoven's work in the Buchenwald Camp.

Could Dr. Hoven have dared re-entering the camp after liberation by the American Army if he had committed the things the Prosecution changes him with? Would not a tempest of indignation have swept him away if he had been the man as described by the Prosecution? What did actually happen? Dr. Hoven was gladly and cheerfully welcomed by the inmates and treated as their guest for two days until American troops took him into a POW camp.

I am unable to understand with what justification on the basis of the overwhelming evidence that speaks in favor of Dr. Hoven the prosecution still calls him a corruptible murderer.

First of all, I venture to ask: Who should have bribed him? The poor inmates who called nothing their own but their lives? Doesn't this observation suffice to demonstrate the absurdity of the charge? In regard to bribery I expressed myself more lengthily on pp. 199-202 of my closing brief.

I further ask: Isn't it true that the more fact that the ex-inmates who were called as prosecution witnesses had to speak favorably of Dr. Hoven, justifies doubts in his guilt?

Let me recall Kirchheimer's evidence? This prosecution witness when asked by the prosecutor whether Dr. Hoven was a Sir Galahad in the Buchenwald concentration camp, did not reply by saying "NO", but rather answered "Dr. Hoven enjoyed a good reputation amongst the prisoners."

There is another fact which should shake that charge; I refer to the fact that witnesses have rushed here to testify for him and to serve the truth, — men from the hast and the West, from Czechoslovakia, and from the Netherlands. Isn't it also true that the three witnesses who were called here by the prosecution to speak against Dr. Hoven, as former inmates of the concentration camps were saved by Dr. Hoven. I refer to Dr. Kogon, Kirchheimer and Roemhild. Dr. Kogon stated personally that Dr. Koven saved Kogon's life three times. Kirchheimer was one of the 1200 Jews whom Dr. Mennecke had selected for transport to the Bernburg euthanasia station. In Roemhild's case too it is proven that Dr. Hoven saved him.

The evidence in the case of Dr. Hoven has clearly shown that this man was not a corruptible murderer, but that he was — to repeat Pieck's words — a man win fought on the side of the United Nations against Himmler and the systems of concentration camps, risking his own life constantly and paying for this fight by spending 1½ years in the Gestapo dungeons and as inmate on the Buchenwald concentration camp.

Such a man who acted so often in the best interest of the United Nations, a man who resisted highest officials so often in the interest of the United Nations, a man who languished for that in the dungeons of the Gestapo and as inmate of the Buchenwald concentration camp — such a man cannot be called a war criminal and a criminal against humanity before any Tribunal of the United Nations. Thank you.

THE PRESIDENT: The Tribunal will now be in recess for fifteen minutes.

(A short recess was taken)