Archive/File: imt/tgmwc/tgmwc-19/tgmwc-19-183.02
Last-Modified: 2000/10/12

DR. PELCKMANN: I said that these documents do not show
clearly that experiments carried out abroad were made on
real volunteers, whereas I contend that on testimony given
up to now, those in concentration camps were. It -

THE PRESIDENT: I was only asking you what these documents
that you are speaking of, Nos. 101 and 102, said. Did they
say that they show that the people who were experimented on
volunteered for the experiments?

DR. PELCKMANN: No. I said, Mr. President, that it is
different, and neither one nor the other of the documents
states quite clearly what the position was. One document
seems to indicate that the people did not volunteer. What
appears of more importance to me is that -

                                                  [Page 184]

MR. ELWYN JONES: If the Tribunal please, I do not think that
the defending counsel's statement should go without
challenge. It appears from the Document 101, the report from
the magazine, which is not a scientific magazine - it is the
Time magazine, which I understand is not a work of science -
that the extract is silent on the question whether the
persons who were used for these experiments were volunteers.

The second extract from Document 102 states quite clearly
that the subjects of the experiments were volunteers.

DR. PELCKMANN: Quite right. The second document deals with
voluntary experiments. The first document, however, leaves
the question open. But I conclude from circumstances shown
in the document that it does not seem to be absolutely
certain whether there were volunteers. It is an extract from
a fairly recent publication, Time, of 24th June, 1946,
dealing with a new remedy for tuberculosis. American
scientists carried out experiments with anti-tuberculosis
inoculations on 3,000 Indians. Half of them were inoculated
with this drug. Half suffered a harmless self-infection; 440
tuberculosis cases developed; 185 cases did not show any
reaction, and 38 died. And these experiments were carried
out on Indians who were free from tuberculosis.

The other document is a German translation of an American
book An American Doctor's Odyssey, written by an American
doctor. In it he describes how the research worker, Fraser,
experimented with the well-known disease of beriberi on
criminals in Bilibid who, as the prosecution has mentioned,
earned for that a small perquisite and, if the experiments
were dangerous, they could obtain a reduction in their
sentence. These experiments were made on the inmates of the
lunatic asylum of Kuala Lumpur and were carried out in the
following manner. Part of the inmates were given unpolished
rice to eat, and part were given polished rice. The second
group of these inmates became ill. Then the two groups were
exchanged, and the sick became healthy and the healthy sick.

The effect of these experiments and of the disease in
general is very severe. Finally the patients can no longer
leave bed and often die of a weak heart.

I quote from this book: "I shall not forget the impression
made upon me by the huge hospital for beriberi incurables at
Singapore, where these poor people were crawling around on
their hands - "

THE PRESIDENT (interposing): We do not need all the details
of it.

DR. PELCKMANN: I am merely going to say that we are
concerned here with a contested scientific opinion -

MR. ELWYN JONES: I am intervening again. But such a sinister
implication is being given by the alleged purport of these
extracts by defending counsel that I really must protest.
The report that is given is of the symptoms of beriberi; it
is not an account of the result of these experiments at all.
The experiments took this form: That some Malayans were
tested with their ordinary diet of polished rice, which is
said to bring on beriberi; other prisoners were tested with
a diet of unpolished rice. And it was roved that a diet of
polished rice, which is their usual diet, brought on
beriberi. There is no sinister import. There is no Dr.
Rascher element about this.

DR. PELCKMANN: I should like finally to come to the
subjective angle. It is alleged by the defence that these
experiments too were kept extraordinarily secret. And if
they had become known -

THE PRESIDENT: We have got the essentials of the arguments.

DR. PELCKMANN: Thank you.

THE PRESIDENT: We will hear now from the United States
Prosecutor with reference to the General Staff and High
Command, the SD and the Gestapo.

                                                  [Page 185]

MR. DODD: Mr. President, with reference to the SD and the
Gestapo we have come to a complete agreement with the
defence counsel so there is no contest concerning the
documents. They number some 150 pages for the Gestapo and
some eighty pages for the SD.

With reference to the High Command and the General Staff, we
have not been able to agree on a few documents. In the first
Document Book No. 1, Document 5, we have objected to its
translation certainly, because it has to do with the
knowledge of General Busse about the political feelings of
some of the generals towards National Socialism, and it is
simply his own opinion and does not purport to be anything
more. Attached to it are graphs and charts and so on, and it
is quite clear that it is based upon opinions which General
Busse has gathered from conversations with other people.
There is nothing to show that he is any authority on the
subject or would be in a position to know any more than any
other man ordinarily would.

Document 8 we also object to, because again it is an
instrument based upon General Winter's collection of the
opinions of other people. In so far as we can tell, General
Winter made some kind of a poll - a private poll, to be sure
- of his associates, and asked them what their opinions
were. And he -

THE PRESIDENT: What is the nature of the actual document. Is
it a publication?

MR. DODD: No, Sir, it is not. It is in a form of statement
by General Winter.

THE PRESIDENT: Is it sworn to?

MR. DODD: Yes, Sir, it is.

THE PRESIDENT: Busse and Winter, they are both sworn, are
they?

MR. DODD: Yes, sir, they are and they both submitted their
statements.

THE PRESIDENT: And what is the date of them, 1946?

MR. DODD: Yes, sir, a very recent date - June or July, 1946.

Document 9 is of the same character again. It is a statement
based on written opinion. In the case of all the statements
which have been supplied by members of the German armed
services, this applies at any rate to all of these
statements which are affirmed to and sworn, no statement has
been sworn to by themselves. The individual who makes the
affidavit goes about and inquires, states on his oath that
these things are true, or represents that they are, without
any showing that the persons who gave him the information
have done so on an affirmation or on oath.

Document 11 is a newspaper article about General Marshall's
report to the Secretary of War of the United States. That
has already been introduced here by the defence and our
objection is somewhat technical, but I think nevertheless
necessary and of value. We feel that a newspaper extract
should not be used, particularly when the document itself is
in evidence, and if the counsel will only use what already
is in evidence, there will be no objection. It is Jodl
Exhibit 56. We have not been able to make that clear to the
defence counsel, so far.

Document 13 is again a statement by General Winter, based on
another one of his private polls of his fellow-prisoners,
concerning their attitude toward the so-called Commissar
Order, and besides, this matter has been handled before the
Commission established by the Tribunal, and there objections
were made to and sustained by the Commissioners. But in any
event, we object again here, even to the translation,
because it seems of no value at all to have General Winter's
submitted statement based on this kind of information.

Document 20 is a letter, written by a General Seidler.

THE PRESIDENT; One moment, Mr. Dodd - go on, please.

                                                  [Page 186]

MR. DODD: The letter written by General Seidler, of course,
is not a sworn statement. This is Document 20 and we
objected to it on that ground. Besides we have very grave
doubt about its value in any event.

Document Book 2 contains one document which we object to.
That is Document 15. That also is not an affidavit, but an
unsworn letter from General von Gravenitz to General von
Kleist; it is written under the date Of 24th June, 1946,
which, in our judgement, makes it valueless; and we do not
see that it would be helpful in any event to the Tribunal.

Other than that, we have no differences.

THE PRESIDENT: Mr. Dodd, will you tell us with reference to
these documents that you object to, how long they are?

MR. DODD: They average, from what I see of the German text,
two to three pages and attached to some are drafts. Do you
mean the whole, in total?

THE PRESIDENT: Yes, take them in order, starting with No. 5.

MR . DODD: That has two pages. It is the statement with the
draft attached to it.

THE PRESIDENT: What about Winter's, No. 8?

MR DODD: That is seven pages and two pages of drafts, which
makes it altogether nine pages. The newspaper article about
General Marshall's report, I do not know. So far, only one
typewritten page. Document 13 is a ten-page document.
General Seidler's letter is one page, and Document 15 is
only one page. It is also a letter.

THE PRESIDENT: Thank you. Now, Dr. Laternser.

DR. LATERNSER (for the General Staff and High Command):
There still remain certain documents which are disputed.
First of all, Document 5. The table submitted with No. 5, on
Page 29, only refers to historical facts which are
graphically represented in that table in order to show their
extent and the effect they had within the accused military
leadership. The affidavit of General Busse, which is
attached, is not intended to prove facts which are
historically known in any case, but merely to explain the
table. It is not, therefore, a private opinion on the part
of General Busse. The admissibility of that table cannot
therefore be objected to.

I will take Documents 8 and 9 together because the
objections raised against them are similar. The lists
contained therein are meant to facilitate the Tribunal's
judgement on the circle of persons falling under the
Indictment. Thus we are not concerned with written
statements but with lists and I am only too willing, if the
technical department is too busy, to furnish the necessary
number of copies of these lists myself.

The basis for these lists is Exhibit USA 778 which was
submitted by the prosecution on 3rd February, 1946. This
document, Exhibit USA 778, which was prepared by the
prosecution, contains the names of all the persons who are
said to come under the Indictment and also shows the periods
during which they, held office. This exhibit does not state
the source from which these details originate, therefore
they are merely assertions on the part of the prosecution.
Using this document as a basis, however, I asked General
Winter to draw up the submitted military lists, Documents 8
and 9, to the best of his knowledge and conscience. In
contrast to the lists submitted by the prosecution, the
Tribunal will be able to judge the source of these lists
particularly well for General Winter appeared personally
before the Tribunal as a witness in Jodl's case. Document 8
contains the names of persons dead and further those of
individually accused persons and those whose posts were only
temporary, not permanent. According to the lists that makes
fifty-six persons and for all practical purposes of
judgement that number need not be taken into account. In
this list are shown also the

                                                  [Page 187]

many cases where commanders were relieved of their positions
owing to grave differences of opinion.

Document 9 gives the names of thirty-one people who occupied
positions for less than six months and to whom the
prosecution has referred. This document is relevant as
regards the alleged conspiracy. If, therefore, the Tribunal
desires to have a good factual basis for judging the
composition of the circle of persons indicted, then these
lists should be accepted. Moreover the lists already
accepted by the prosecution can only refer to the same or
similar sources as those of the lists which I am submitting,
and the lists of the defence quote the sources and can be
checked. If I had used the same method as the prosecution, I
would only have had to submit the lists without the addition
of an affidavit. Therefore I beg that these documents be
admitted.

Document 11 has already been accepted in the same form by
the Tribunal as Exhibit Jodl 56, a fact which, incidentally,
I mentioned at once - and to the prosecution - and attempts
to make that clear to me were really not necessary.

THE PRESIDENT: No. 11 we understood was a newspaper report
with reference to General Marshall's report.

DR. LATERNSER: When that objection was brought up I
immediately pointed out that the same document to which I
was going to refer had already been submitted during the
proceedings against General Jodl. That is the Marshall
report. Therefore, I withdraw this document of mine.

THE PRESIDENT: You are withdrawing it? I see.

DR. LATERNSER: Yes, as the document has already been
submitted. I merely wanted to include it in my book for the
sake of having it complete. Then I would just like to
remark, Mr. President, that attempts on the part of the
prosecution to make this clear to me are not necessary
because I usually understand that kind of argument fairly
easily.

Document 13 is also based on USA 778 as far as the circle of
indicted persons is concerned. This list, also compiled by
General Winter, is meant to complete the picture proving the
correct attitude on the part of the generals toward the
Commissar Order. As that list, based on the list submitted
by the prosecution and the affidavit attached to it, gives
the exact sources, the document can readily be checked as to
its worth. The objections on the part of the prosecution may
detract from its value as evidence, but the documentary
character of the document cannot be destroyed; therefore
this list, too, should be admitted.

THE PRESIDENT: Has not Document 13, that is to say the
subject of the attitude of the generals to the Commissar
Order, already been dealt with before the Commission?

DR. LATERNSER: Yes, Mr. President, but examination of
witnesses and submission of affidavits cannot give the same
satisfactory picture which I am attempting to give by means
of this document. This document contains the names of the
generals who belonged to that so-called group; in a special
column I have marked whether the order was received and in
another column whether the order was carried out, and these
facts which General Winter mentions here are explained by
him in his affidavit which is attached to the list itself.
He goes on to quote the sources from which he had gained his
knowledge, so that I can examine the sources and so the
evidential value.

THE PRESIDENT: Dr. Laternser, you have called a certain
number of witnesses before the Commission, have you not?

DR. LATERNSER: Yes. I had eight witnesses.

THE PRESIDENT: I suppose all of them, or almost all of them,
dealt with this subject. You put in a certain number of
affidavits and those affidavits have dealt with this
subject, have they not?

                                                  [Page 188]

DR. LATERNSER: Yes.

THE PRESIDENT: How many affidavits have you put in before
the Commission?

DR. LATERNSER: I cannot, Mr. President, give you the exact
number at the moment. Affidavits have been submitted by me
on only two matters.

MR. DODD: There were seventy-two of them, Mr. President. He
put in seventy-two of those affidavits.

THE PRESIDENT: Well, is this not really an attempt to extend
and make more exhaustive the proof which you are submitting?

DR. LATERNSER: Mr. President, this Commissar Order no doubt
is a criminal order, and I was merely trying to make it
clear to the Tribunal by this list in what an exemplary way
the generals had behaved in the matter; I had summarised the
outcome of that part of the evidence in this list. General
Winter has compiled the list, so the High Tribunal can
decide whether it is valuable or not. I am merely trying to
say that the objections raised by the prosecution can affect
the evidential value of this document but not the document
itself. I ask that it be admitted.

THE PRESIDENT: But if you put in seventy-two or eighty-two
affidavits before the Commission, why should you not have
put in this document before the Commission?

DR. LATERNSER: Well, but here we are not concerned with
affidavits. Up to now only affidavits have been submitted
whereas here in Document 13, the most important thing is the
list and the affidavits which are attached are merely an
appendix to that list. They are intended to give an
explanation of the list. The main feature of this document,
therefore, is the list and not just the explanatory
affidavit, so that it would not have been admissible before
the Commission.

THE PRESIDENT: Yes, Dr. Laternser, but it does not make it
inadmissible before the Commission that it is an affidavit
exhibiting a list. It could have been put in before the
Commission, and if it has been put in before the Commission
it would have been brought to our notice as is everything
that goes before the Commission. Also, it is pointed out to
me of all these documents, they could all have been put in
before the Commission.

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