2. GUSTAV KRUPP von BOHLEN und HALBACH

The name of Gustav Krupp von Bohlen und Halbach stood thirteenth on the list of twenty-four defendants accused in the Indictment signed in Berlin on 6 October 1945. On 4 November counsel for Krupp filed a motion requesting that the Tribunal defer proceedings against the defendant until his health permitted him to stand trial, and that he should not be tried in his absence. The Tribunal on 5 November appointed a medical commission consisting of representatives of the Soviet Union, France, Great Britain, and the United States, to examine Krupp and determine whether he was fit to stand trial. On 12 November the Chief of Counsel for the United States filed an answer opposing the motion of defense counsel and proposing that Gustav Krupp should not be dismissed from the proceedings unless Alfried Krupp, the son and sole owner of the Krupp Works, were substituted as a defendant. On 14 November, before the opening of the trial itself, the Tribunal heard oral argument by the prosecution and defense, in which substantially the same views were presented as had been previously expressed in the written motions. The Tribunal on 15 November announced its ruling postponing the proceedings against Gustav Krupp, but retaining the Indictment charges against him on the docket for later trial if his physical and mental condition should permit. The ruling stated that the question of adding another name to the Indictment would be considered later. Thereupon, on 16 November, the American Chief of Counsel filed a memorandum with the Tribunal stating as a matter of record that the United States was not committed to participate in any subsequent four-power trial. On the same day the Soviet and French Chief Prosecutors joined the United States Chief of Counsel in a motion formally designating Alfried Krupp a defendant. On the following day the Tribunal announced its ruling rejecting the motion to add the name of Alfried Krupp as a defendant. The significant papers pertaining to these questions are set forth below.

A. MOTION BY DEFENSE COUNSEL FOR POSTPONEMENT OF PROCEEDINGS AGAINST GUSTAV KRUPP VON BOHLEN UND HALBACH

Nurnberg, 4 November 1945
THEODOR KLEFISCH

LAWYER
COLOGNE, 43, BLUMENTHALSTRASSE

To: The International Military Tribunal Nurnberg.

As defending counsel to the accused Dr. Gustav Krupp von Bohlen und Halbach I beg to state that the proceedings against this accused be deferred until he is again fit for trial.

At any rate I request that the accused be not tried in his absence.

Reasons

By Article 12 of the Statute of the International Military Tribunal this court has the right to try an accused in his absence if he cannot be found, or if the court deem this necessary for other reasons in the interest of justice.

The 75 year old accused Krupp von Bohlen has for a long time been incapable of trial or examination owing to his severe physical and mental infirmities. He is not in a position to be in contact with the outside world nor to make or receive statements. The indictment was served on him on the 19th October 1945 by a representative of the International Military Tribunal by placing the document on his bed. The accused had no knowledge of this event. Consequently he is not aware of the existence of an indictment. Naturally therefore he is not capable of communicating either with his defense counsel nor with other persons on the subject of his defense.

To prove the above, 2 medical certificates are enclosed viz. that of the court medical expert Doctor Karl Gersdorf of Werfen Salzburg of 9th September 1945 and that of the Professor Doctor Otto Gerke of Bedgnstein of 13th September.

Latterly Herr Krupp von Bohlen has been examined several times by American military doctors. As far as it is possible I should like to request for another complete medical examination. If the accused is unable to appear before the court, then according to article 12 of the statute he could only be tried if the court deemed it necessary in the interests of justice.

Whatever may be understood by the phrase "in the interests of justice" it would hardly be objective justice to try a defendant accused of such serious crimes, if he were not informed of the contents of the accusations or if he were not given the chance to conduct his own defense or instruct a defense counsel. Particularly is he in no condition to comprehend the following rights of an accused set out in the statute:

1. By article 16 Section (a) of the statute a copy of the indictment in a language which he understands will be served on the accused at a suitably appointed time. In the first place this concerns the statement which the accused has to render on inquiry as to whether he admits his guilt or not, a statement which is of particular importance for the course of the trial and for the decision of the tribunal. This is all the more important as this statement regarding guilt or innocence can only be made exclusively by the accused himself according to his own judgment and after examining his conscience. So far as the procedure is admissible at all, the defense counsel could not at the request of the court express himself on the question of guilt as such a declaration presupposes the possibility of communication and understanding with the accused.

Also the defendant could not exercise the right to the last word to which he is entitled according to Article 24 Section f.

The legislators who set up these guarantees for the defense, cannot wish to deny them undeservedly to an accused who cannot make use of them owing to illness. If by Article 12 of the statute the trial of an absent defendant is allowed then this exception to the rule can only be applied to a defendant who is unwilling to appear though able to do so. As is the case with the criminal procedure rules of nearly all countries, it is on this principle that the rules and regulations concerning the trial of absent defendants are based.

[signed] Klefisch

Lawyer

B. ANSWER FOR THE UNITED STATES TO THE MOTION FILED IN BEHALF OF KRUPP VON BOHLEN

To the International Military Tribunal:

The United States respectfully opposes the application on behalf of Gustav Krupp von Bohlen und Halbach that his trail be "deferred until he is again fit for trial."

If the Tribunal should grant this application, the practical effect would be to quash all proceedings, for all time, against Krupp von Bohlen.

It appears that Krupp should not be arrested and brought to the court room for trial. But the plea is that the Tribunal also excuse him from being tried in absentia. This form of trial admittedly is authorized by Article 12 of the Charter of the Tribunal. Of course, trial in absentia in the circumstances of the case is an unsatisfactory proceeding either for prosecution or for defense. But the request that Krupp von Bohlen be neither brought to court nor tried in his absence is based on the contention that "the interest of justice" requires that he be thus excused from any form of trial. Public interests, which transcend all private considerations, require that Krupp von Bohlen shall not be dismissed unless some other representative of the Krupp armament and munitions interests be substituted. These public interests are as follows:

Four generations of the Krupp family have owned and operated the great armament and munitions plants which have been the chief source of Germany's war supplies. For over 130 years this family has been the focus, the symbol, and the beneficiary of the most sinister forces engaged in menacing the peace of Europe. During the period between the two World Wars the management of these enterprises was chiefly in defendant Krupp von Bohlen. It was at all times, however, a Krupp family enterprise. Krupp von Bohlen was only a nominal owner himself; his wife, Bertha Krupp, owned the bulk of the stock. About 1937 their son, Alfried Krupp, became plant manager and was actively associated in policy-making and executive management thereafter. In 1940, Krupp von Bohlen, getting on in years, became Chairman of the Board of the concerns, thus making way for Alfried, who became President. In 1943, Alfried became sole owner of the Krupp enterprises by agreement between the family and the Nazi government, for the purpose of perpetuating this business in Krupp family control. It is evident that the future menace of this concern lies in continuance of the tradition under Alfried, now reported to be an internee of the British Army of the Rhine.

To drop Krupp von Bohlen from this case without substitution of Alfried, drops from the case the entire Krupp family, and defeats any effective judgment against the German armament makers. Whether this would be "in the interests of justice" will appear from the following recital of only the most significant items of evidence now in possession of the United States as to the activities of Krupp von Bohlen, in which his son Alfried at all times aided, as did other associates in the vast armament enterprises, all plotting to bring about the second World War, and to aid in its ruthless and illegal conduct.

After the first World War, the Krupp family and their associates failed to comply with Germany's disarmament agreements, but all secretly and knowingly conspired to evade them.

In the March 1, 1940 issue of the Krupp Magazine, the defendant Krupp stated:

"I wanted and had to maintain Krupp in spite of all opposition, as an armament plant for the later future, even if in camouflaged form. I could only speak in the smallest, most intimate circles, about the real reasons which made me undertake the changeover of the plants for certain lines of production. * * * Even the Allied snoop commissioners were duped. * * * After the accession to power of Adolf Hitler, I had the satisfaction of reporting to the Fuehrer that Krupp stood ready, after a short warming-up period, to begin rearmament of the German people without any gaps of experience * * *"

Krupp von Bohlen (and Alfried Krupp as well) lent his name, prestige, and financial support to bring the Nazi Party, with an avowed program of renewing the war, into power over the German State. On April 25, 1931 von Bohlen acted as chairman of the Association of German Industry to bring it into line with Nazi policies. On May 30, 1933 he wrote to Schacht that "it is proposed to initiate a collection in the most far-reaching circles of German industry, including agriculture and the banking world, which is to be put at the disposal of the Fuehrer of the NSDAP in the name of "The Hitler Fund' * * * I have accepted the chairmanship of the management council." Krupp contributed from the treasury of the main Krupp company 4,738,446 Marks to the Nazi Party fund. In June, 1935 he contributed 100,000 Marks to the Nazi Party out of his personal account.

The Nazi Party did not succeed in obtaining control of Germany until it obtained support of the industrial interests, largely through the influence of Krupp. Alfried first became a Nazi Party member and later von Bohlen did also. The Krupp influence was powerful in promoting the Nazi plan to incite aggressive warfare in Europe.

Krupp von Bohlen strongly advocated and supported Germany's withdrawal from the Disarmament Conference and from the League of Nations. He personally made repeated public speeches approving and inciting Hitler's program of aggression; on April 6th and 7th, 1938 two speeches approved annexation of Austria; on October 13, 1938 he publicly approved Nazi occupation of the Sudetenland; on September 4, 1939 he approved the invasion of Poland; on may 6, 1941 he spoke commemorating the success of Nazi arms in the West. Alfried Krupp also made speeches to the same general effect. The Krupps were thus one of the most persistent and influential forces that made this war.

The Krupps also were the chief factor in getting ready for the war. In January, 1944 in a speech at the University of Berlin, von Bohlen boasted, "Through years of secret work, scientific and basic groundwork was laid in order to be ready again to work for the German Armed Forces at the appointed hour without loss of time or experience." In 1937, before Germany went to war, the Krupps booked orders to equip satellite governments on approval of the German High Command. Krupp contributed 20,000 Marks to the defendant Rosenberg for the purpose of spreading Nazi propaganda abroad. In a memorandum of October 12, 1939, a Krupp official wrote offering to mail propaganda pamphlets abroad at Krupp expense.

Once the war was on, Krupps, both von Bohlen and Alfried being directly responsible therefore, led German industry in violating treaties and International Law by employing enslaved laborers, impressed and imported from nearly every country occupied by Germany, and by compelling prisoners of war to make arms and munitions for use against their own countries. There is ample evidence that in Krupp's custody and service they were underfed and overworked, misused and inhumanly treated. Captured records show that in September, 1944, Krupp concerns were working 54,990 foreign workers and 18,902 prisoners of war.

Moreover, the Krupp companies profited greatly from destroying the peace of the world through support of the Nazi program. The rearmament of Germany gave Krupp huge orders and corresponding profits. Before this Nazi menace to the peace began, the Krupps were operating at a substantial loss. But the net profits after taxes, gifts and reserves steadily rose with rise of Nazi rearmament, being as follows:

Marks

For year ending Sept. 30, 1935.................57,216,392
For year ending Sept. 30, 1938.................97,071,632
For year ending Sept. 30, 1941.................111,555,216

The book value of the Krupp concerns mounted from 75,962,000 Marks on October 1, 1933 to 237,316,093 Marks on October 1, 1943. Even this included many going concerns in occupied countries carried at a book value of only 1 Mark each. These figures are subject to the adjustments and controversies usual with financial statements of each vast enterprise but approximately reflect the facts about property and operations.

The services of Alfried Krupp and of von Bohlen and their family to the war aims of the Nazi Party were so outstanding that the Krupp enterprises were made a special exception to the policy of nationalization of industries. Hitler said that he would be "prepared to arrange for any possible safeguarding for the continued existence of the works as a family enterprise; it would be simplest to issue 'lex Krupp' to start with." After short negotiations, this was done. A decree of November 12, 1943 preserves the Krupp works as a family enterprise in Alfried Krupp's control and recites that it is done in recognition of the fact that "for 132 years the firm of Fried. Krupp, as a family enterprise has achieved outstanding and unique merits for the armed strength of the German people."

It has at all times been the position of the United States that the great industrialists of Germany were guilty of the crimes charged in this Indictment quite as much as its politicians, diplomats, and soldiers. Its Chief of Counsel on June 7, 1945, in a report to President Truman, released by him and with his approval, stated that the accusations of crimes include individuals in authority in the financial, industrial, and economic life of Germany, as well as others.

Pursuant thereto, the United States, with approval of the Secretary of State, proposed to indict Alfried Krupp, son of Krupp von Bohlen, and President and owner of the Krupp concern. The Prosecutors representing the Soviet Union, the French Republic, and the United Kingdom unanimously opposed inclusion of Alfried Krupp. This is not said in criticism of them or their judgment. The necessity of limiting the number of defendants was considered by representatives of the other three nations to preclude the addition of Alfried Krupp. Learning the serious condition of Krupp von Bohlen, immediately upon service of the Indictment, the United States again called a meeting of Prosecutors and proposed an amendment to include Alfried Krupp. Again the proposal of the United States was defeated by a vote of three-to-one. If now the Tribunal shall exercise its discretion to excuse from trial the one indicted member of the Krupp family, one of the chief purposes of the United States will be defeated, and it is submitted that such a result is not "in the interests of justice."

The United States respectfully submits that no greater disservice to the future peace of the world could be done than to excuse the entire Krupp family and the armament enterprise from this trial in which aggressive war-making is sought to be condemned. The "interests of Justice" cannot be determined without taking into account justice to the men of four generations whose lives have been taken or menaced by Krupp munitions and Krupp armament, and those of the future who can feel no safety if such persons as this escape all condemnation in proceedings such as this.

While of course the United States can not, without the concurrence of one other power, indict a new defendant, it can under the Charter alone oppose this Motion. The United States respectfully urges that if the favor now sought by Krupp von Bohlen is to be granted, it be upon the condition that Alfried Krupp be substituted or added as a defendant so that there may be a representative of the Krupp interests before the Tribunal.

It may be suggested that bringing in a new defendant would result in delay. Admitting, however, that a delay which cannot exceed a few days may be occasioned, it is respectfully suggested that the precise day that this trial will start is a less important consideration than whether it is to fail of one of its principal purposes. The American Prosecution Staff has been by long odds the longest and farthest away from home in this endeavor. On personal, as well as public interest considerations, it deplores delay. But we think the future, as well as the contemporary world, cannot fail to be shocked if, in a trial in which it is sought to condemn aggressive war-making, the Krupp industrial empire is completely saved from condemnation.

The complete trial brief of the United States on Krupp von Bohlen, with copies of the documents on which his culpability is asserted, will be made available to the Tribunal if it is desired as evidence concerning him and Alfried Krupp and the Krupp concerns.

Respectfully submitted:

[signed] Robert H. Jackson

12 November 1945. ROBERT H. JACKSON,

Chief of Counsel for the United States of America.

C. RULING OF the TRIBUNAL ON 15 NOVEMBER 1945 IN THE MATTER OF THE APPLICATION OF COUNSEL FOR KRUPP VON BOHLEN FOR POSTPONEMENT OF THE PROCEEDINGS AGAINST THIS DEFENDANT

Council for Gustav Krupp von Bohlen has applied to the Tribunal for postponement of the proceedings against this defendant on the ground that his physical and mental condition are such that he is incapable of understanding the proceedings against him and of presenting any defense that he may have.

On November 5, the Tribunal appointed a medical commission composed of the following physicians: R. E. Tunbridge, Brigadier, O.B.E., M.D., M.Sc., F.R.C.P., Consulting Physician, British Army of the Rhine; Rene Piedelievre, M.D., Professor a la Faculte de Medicine de Paris; Expert pres les Tribuneaux; Nicolas Kurshakov, M.D., Professor of Medicine, Medical Institute of Moscow; Chief Internist, Commissariat of Public Health, U.S.S.R.; Eugene Sepp, M.D., Emeritus professor of Neurology, Medical Institute of Moscow; Member, Academy of Sciences, U.S.S.R.; Eugene Krasnushkin, M.D.; Professor of Psychiatry, Medical Institute of Moscow; Bertram Schaffner, Major, Medical Corps, Neuropsychiatrist, Army of the United States.

The Commission has reported to the Tribunal that it is unanimously of the opinion that Krupp von Bohlen suffers from senile softening of the brain; that his mental condition is such that he is incapable of understanding court procedure and of understanding or cooperating in interrogations; that his physical state is such that he cannot be moved without endangering his life; and that his condition is unlikely to improve but rather will deteriorate further.

The Tribunal accepts the findings of the medical commission to which exception is taken neither by the Prosecution nor by the Defense.

Article 12 of the Charter authorizes the trial of a defendant in absentia if found by the Tribunal to be "necessary in the interests of justice". It is contended on behalf of the Chief Prosecutors that in the interests of justice Krupp von Bohlen should be tried in Absentia, despite his physical and mental condition.

It is the decision of the Tribunal that upon the facts presented the interests of justice do not require that Krupp von Bohlen be tried in absentia. The Charter of the Tribunal envisages a fair trial in which the Chief Prosecutors may present the evidence in support of an indictment and the defendants may present such defence as they may believe themselves to have. Where nature rather than flight or contumacy has rendered such a trial impossible, it is not in accordance with justice that the case should proceed in the absence of a defendant.

For the foregoing reasons, the Tribunal Orders that:

1. The application for postponement of the proceeding against Gustav Krupp von Bohlen is granted.

2. The charges in the indictment against Gustav Krupp von Bohlen shall be retained upon the docket of the Tribunal for trial hereafter, if the physical and mental condition of the Defendant should permit.

Further questions raised by the Chief Prosecutors, including the question of adding another name to the Indictment, will be considered later.

D. MEMORANDUM FILED BY THE UNITED STATES CHIEF OF COUNSEL TO THE INTERNATIONAL MILITARY TRIBUNAL

The United States, by its Chief of Counsel, respectfully shows:

The order of the Tribunal, that "The charges in the indictment against Gustav Krupp von Bohlen shall be retained upon the docket of the Tribunal for trial hereafter, if the physical and mental condition of the Defendant should permit," requires the United States to make clear its attitude toward subsequent trials, which may have been misapprehended by the Tribunal, in order that no inference be drawn from its silence.

The United States never has committed itself to participate in any Four Power trial except the one now pending. The purpose of accusing organizations and groups as criminal was to reach, through subsequent and more expeditious trials before Military Government or military courts, a large number of persons. According to estimates of the United States Army, a finding that the organizations presently accused are criminal organizations would result in the trial of approximately 130,000 persons now held in the custody of the United States Army; and I am uninformed as to those held by others. It has been the great purpose of the United States from the beginning to bring into this one trial all that is necessary by way of defendants and evidence to reach the large number of persons responsible for the crimes charged without going over the entire evidence again. We, therefore, desire that it be a matter of record that the United States has not been, and is not by this order, committed to participate in any subsequent Four Power trial. It reserves freedom to determine that question after the capacity to handle one trial under difficult conditions has been tested.

Respectfully submitted:

[signed] Robert H. Jackson

ROBERT H. JACKSON,

Chief of Counsel for the United States.

16 November 1945

E. MOTION BY THE SOVIET, FRENCH, AND AMERICAN CHIEF PROSECUTORS TO DESIGNATE ALFRIED KRUPP AS A DEFENDANT TO THE INTERNATIONAL MILITARY TRIBUNAL:

Upon the Indictment, the motion of Gustav Krupp von Bohlen und Halbach and the answers thereto, and all proceedings had thereunder, the Committee of Prosecutors created under the Charter hereby designates Alfried Krupp von Bohlen und Halbach as a defendant and respectfully moves that the Indictment be amended by adding the name of Alfried Krupp von Bohlen und Halbach as a defendant, and by the addition of appropriate allegations in reference to him in the Appendix A thereof. It also moves that the time of Alfried Krupp be shortened from thirty days to December 2, 1945. For this purpose, the Committee of Prosecutors adopts and ratifies the Answer filed on behalf of the United States on November 12, 1945 in response to the Gustav Krupp von Bohlen und Halbach motion, and the motion made by Robert H. Jackson in open Court on behalf of the United States of America, The Soviet Union, and the Provisional Government of France. This motion is authorized by a resolution adopted at a meeting of the Committee of Prosecutors held on November 16, 1945.

[signed] Pokrovsky
For the Union of Soviet Socialist Republics
[signed] Francois de Menthon
For the Provisional Government of France

[signed] Robert H. Jackson
For the United States of America.
16 November 1945.

F. RULING OF THE TRIBUNAL REJECTING THE PROSECUTION'S MOTION TO NAME ALFRIED KRUPP AS A DEFENDANT INTERNATIONAL MILITARY TRIBUNAL

Sitting at Nurnberg, Germany, on 17 November 1945,

In session 1500 hours

THE PRESIDENT: The motion to amend the indictment by adding the name of Alfried Krupp has been considered by the Tribunal in all its aspects and the application is rejected.

The Tribunal will now adjourn.

(Whereupon at 1505 the Tribunal adjourned.)