Trials of war criminals before the Nuernberg military tribunals under control council law no. 10, volume I (part 6 of 6)
Q. Have you ever been present when a mercy death was accorded to these people by that process?
A. Yes. I had to be present because Bouhler wanted a report on whether things were being done according to his orders, and in a dignified and not a brutal fashion.
Q. And you found from your inspection and witnessing these ceremonies that they were being done in accordance with Bouhler’s orders, in a dignified and painless sort of way?
A. Yes. But let me say I was already convinced that the method was painless. And I also saw that by this method the patient did not realize that he was about to be killed. There were benches and chairs in the chamber. A few minutes after the gas was let in, the patient became sleepy and tired and died after a few minutes. They simply went to sleep without even knowing that they were going to sleep, and that was one of the most essential requirements.
Q. When was the first time that you witnessed one of these procedures?
A. The first time was on the occasion of an experiment with four such patients. I think it must have been December 1939 or January 1940. I know there was snow on the ground at the time. That is why I remember these months. Bouhler, Conti, and I don’t know who else was there, there were a few other doctors witnessing it for the first time. On the basis of this experiment Hitler decided that only carbon monoxide was to be used for killing the patients.
Q. Well now, before or after that time had you tried any other gases or any other means of administering euthanasia to these people?
A. No, we—and by this I mean Bouhler’s organization—never used any other gas or any other means.
Q. You found the carbon monoxide quite satisfactory, so you never had to resort to any other means?
A. Yes. You can put it that way.
Q. Now, where was it that these four people were accorded the privilege of a mercy death in December, 1939 or 1940?
A. That was in the first euthanasia station in Brandenburg.
Q. And who were the subjects that were used for that experiment?
A. They were four mentally incurable persons.
Q. Do you know what institution they came from?
A. No. That I don’t know.
Q. Were they men or women?
A. Men.
Q. All men. What were their ages, were they young men, middle-aged men, or elderly men; how would you classify them?
A. I really don’t remember that.
Q. What can you say in regard to their nationality; do you know anything about that?
A. They must have been Germans, they could not have been anything but Germans, because according to regulations only German mentally defective persons were used for euthanasia.
Q. And you say Hitler was there?
A. No. Hitler was not there, Bouhler was there.
Q. Bouhler?
A. Bouhler was there, Conti was there, and I believe Brandt.
Q. Karl Brandt?
A. Yes, Karl Brandt.
Q. Do you remember any of the other defendants who were there?
A. None of the defendants here was present except myself.
Q. Well, then you remember that you, Bouhler, Conti, and Karl Brandt were there; now do you remember any of the other gentlemen there at the time?
A. Yes. I said there were some more doctors there, but none of the defendants here.
Q. Dr. Pfannmueller, perhaps?
A. No. Dr. Pfannmueller was certainly not there. They must have been Berlin doctors.
Q. When after December of 1939 or January of 1940 was it that you again witnessed a euthanasia procedure?
A. I should say that during 1940 in all the euthanasia institutions existing at that time I personally assured myself once or twice that the euthanasia was being correctly carried out. But I think I recollect that the Hadamar Institute was only set up in 1941 and in that year I did not witness euthanasia being carried out, so that this would eliminate the Hadamar Institute.
Q. The Institute at Hadamar, I think you said there were five other stations?
A. Yes. There were six altogether.
Q. So that during the year 1940, you assured yourself that each of the five stations on perhaps one, two or perhaps more visits that the procedure insisted upon by Bouhler was being carried out in a humane manner, in a painless manner by carbon monoxide?
A. Completely imperceptible.
Q. And now who were the people—let me put it this way—the first time at Brandenburg there were four people, all men?
A. Yes.
Q. Now, can you remember on your subsequent visits in 1940 to the other euthanasia stations who the people were, men or women?
A. Both, sometimes men and sometimes women.
Q. And what can you say in regard to their nationality?
A. I can only say that they were only Germans, because I am perfectly convinced that Bouhler’s regulations, which rested on an order from Hitler, namely that no foreigners were to be given euthanasia, were observed strictly by all the euthanasia institutions.
Q. Where were these stations located, Witness?
A. I don’t understand what you mean, where they were?
Q. In what part of Germany or in what part of Poland, or in what part of Czechoslovakia, in what part of the Protectorate of Bohemia-Moravia, in what part of Denmark, in what part of Holland, in what part of France, and in what part of Europe were these stations located?
A. Now I understand you correctly. The first one was in Brandenburg on the Havel in the neighborhood of Berlin about 70 or 80 kilometers away. The next was the Grafeneck Institute, that was in Wuerttemberg. Another institution was Sonnenstein and that is near Pirna near Dresden. There was the Hartheim Institute which was near Linz on the Danube in Austria. Then there was the Bernburg Institute on the Saale River near Dessau. The Hadamar Institute is in Hesse.
Q. Were any of these stations located in that portion of Poland which was occupied by the Germans in military occupation?
A. No.
Q. And the six stations you have just named were all the stations known to you that existed; there were just six?
A. Those were the only ones, yes.
Q. Witness, can you approximate the population of Germany as it existed in the year of 1939 or the year of 1940? Were there some fifty or sixty million people?
A. No, roughly eighty to eighty-five million.
Q. Now by that, when you say eighty to eighty-five million, you include the entire German Reich, including Austria, the Sudetenland, and the occupied territory?
A. Austria and the Sudetenland, but not the occupied territory.
Q. And you estimate roughly there were eighty-five million people?
A. Yes.
Q. Of that eighty-five million, how many Jews would you say were living in Germany at the time who were German nationals?
A. Maybe two or three million.
Q. You are talking now about the Greater German Reich, including Austria and the Sudetenland?
A. Yes.
Q. You estimate there were between two or three million who were German nationals?
A. Roughly, yes.
Q. Now with two or three million German Jews amalgamated into the German population of eighty-five million people who were German nationals, explain, if you will, to the Tribunal why it was that the German Jews were excluded from the Euthanasia Program, if as you say it was a salutary program according to people the privilege of a mercy death for taking them out of their misery; why was it that the German Jews were not included in that program?
A. I have already stated that. As Bouhler explained it, the blessing of euthanasia should be granted only to Germans.
Q. I understand that, but I thought you said at that time there were between two and three million Germans in Germany, German citizens who were Jews?
A. Yes. That is so.
Q. Why were they not included in the program, if the privilege of the program was going to be accorded to all Germans?
A. The reason possibly lies in the fact that the government did not want to grant this philanthropic act to the Jews.
Q. They wanted to grant this philanthropic act to all Aryan Germans, but did not want to grant it to German Jews, and they did not want to grant this philanthropic act to German soldiers of the first war, who had received mental injuries growing out of their war wounds. Is that correct?
A. As I have already said, that was a great inconsistency in this procedure and we often protested. However, it was determined by considerations of a military and psychological nature.
Q. Thank you.
* * * * *
Q. Witness, I think you said yesterday afternoon that these six euthanasia stations were located at Bernburg, Brandenburg, Hadamar, Hartheim, Grafeneck, and Sonnenstein, is that correct?
A. Yes. That is correct.
Q. When were the gas chambers at these euthanasia stations built?
A. When the institutions were set up as euthanasia institutions.
Q. Can you remember the approximate dates?
A. No. I cannot remember the dates. I just know the years when the institutions became euthanasia institutions—approximately. I know that Grafeneck and Brandenburg were the first institutions to become euthanasia institutions. It began at the end of 1939 at the earliest, the beginning of 1940 at the latest. Sonnenstein and Hartheim were set up in the early summer 1940. In the early summer or spring. The institution at Bernburg was established in the fall or winter of 1940, Hadamar, in the winter or spring of 1941. This is as accurate as I can give it.
Q. You said the winter or spring of 1941. Do you mean the winter of 1940 or the spring of 1941? You said the winter or spring of 1941.
A. If I say winter ’41, I mean January ’41, but it might have been March too, I don’t know.
Q. And you think that Hadamar was the last one that was set up?
A. I am quite certain that Hadamar was the last one.
Q. Now, of what materials were these gas chambers built? Were they movable gas chambers, very much like the low-pressure chambers that Professor Dr. Ruff talked about, or were they something that was built permanently into the camp or installation?
A. No special gas chamber was built. A room suitable in the hospital was used, a room of necessity attached to the reception ward and to the room where the insane persons were kept. This room was made into a gas chamber. It was sealed, given special doors and windows, and then a few meters of gas piping were laid, or some kind of piping with holes in it. Outside this room there was a container, a compressed gas container with the necessary apparatus, that is a pressure gauge, etc.
Q. Now what department had the responsibility for constructing or building these gas chambers, what department of the Party or of the government?
A. No office of the Party. I don’t understand the question.
Q. Somebody had to build these chambers. Who gave the orders and who had the responsibility of building them, was that your department?
A. I assume the orders were given by the head of the institution, but I don’t know who actually did give the orders.
Q. In other words, were these chambers not built according to some specifications, plans and specifications?
A. I can’t imagine that, every chamber was different. I saw several of them.
Q. Do you know what department gave the order for having the chambers built? Was that your department under Bouhler?
A. No. It was Bouhler himself.
Q. And he gave the order to the various heads of institutions to install this chamber, is that correct?
A. Yes.
Q. Now, how would the heads of each of these institutions know how to install a gas chamber unless there were certain plans and specifications given to them?
A. I never saw any such plan. I don’t know of any.
Q. Would you know how to go out and build a gas chamber unless some engineer or planner had told you? Certainly I wouldn’t.
A. I don’t know whether I would either. Presumably he called in an engineer.
Q. That’s what I’m trying to say. What engineer or group of engineers was responsible for seeing that these gas chambers were built so that they would do the job they were supposed to do?
A. There was certainly no group of engineers. I presume there was somebody at the institutions who had enough technical ability to do it. I don’t know.
Q. Then, so far as you know, someone at one of these institutions would be told by Bouhler to construct a gas chamber and he would call—the head of the institution then would call on someone, you don’t know whom, to go out and build the chamber? Is that correct?
A. That is how I imagine it.
Q. Well, wouldn’t it make a considerable difference whether the chamber was to be constructed for euthanasia by carbon monoxide or by some other means? Wouldn’t there have to be some technical information available to the head of the institution so that he could give directions to his mechanic to build the thing to do the thing it was supposed to do?
A. I must say honestly I really don’t know anything about that. I can’t judge.
Q. Do you know whether or not any department of the government, under Bouhler, or under Brandt, or under anybody else, was responsible for seeing that the gas apparatus was installed properly?
A. I don’t know, but I don’t believe so because I would probably have heard of it.
Q. How large were these gas chambers?
A. They were of different sizes. It was simply an adjoining room. I can’t remember whether they were 4 × 5 meters, or 5 × 6 meters. Simply normal sized rooms, but I can’t tell you the exact size. It was too long ago. I can’t remember.
Q. Were they as large as this courtroom?
A. No. They were just normal rooms.
Q. Well, a man of your intelligence must have some idea about the size of these rooms. The assertion “normal size” doesn’t mean anything in particular.
A. By that I mean the size of the normal room in a normal house. I didn’t mean an assembly room or a cell either. I meant a room, but I can’t tell you the exact size because I really don’t know it. It might have been 4 × 5 meters, or 5 × 6 meters, or 3½ × 4½, but I really don’t know. I didn’t pay much attention to it.
Q. Have you ever visited a concentration camp or a military camp of any kind?
A. I visited a concentration camp, and I was once in a military camp as a soldier.
Q. Have you ever seen a shower room or shower bath built into a camp of that kind where the inmates of concentration camps, or where soldiers in a military barracks, can take showers?
A. Yes, I have. In my own barracks.
Q. And would you say that this euthanasia room at the various institutions was about that dimension?
A. I think it was much smaller.
Q. Well, perhaps we can get at it this way. I thought perhaps you knew something about the mechanical construction that I supposed everybody knew something about. This room of yours that you talk about, how many people would it accommodate?
A. Yesterday I said that according to my estimate it might have been twenty-five or thirty people.
Q. And that is still your estimate today? I remember yesterday that you said that, and that is still your estimate today, it could comfortably take care of twenty-five or thirty people?
A. Yes. That’s my estimate.
Q. Now, the carbon monoxide gas that was used for the purpose of euthanasia, where did it come from? I know you said yesterday that it came out of tubes very much like oxygen came in, but where did the tubes come from? Do you know?
A. I don’t know. They were the normal steel containers which can be seen everywhere.
Q. Do you know how they reached the camp?
A. That I don’t know.
Q. Do you know whether any department of the government was responsible for furnishing the gas to the camp?
A. No. They were probably bought.
Q. You think then that perhaps the superintendent of the institution, if he wanted some carbon monoxide gas, would just walk down-town and walk into a store and buy a steel tube of it and put it under his arm and carry it on back to the camp; pay for it out of his pocket?
A. No, not out of his own pocket but through the institution. The institutions bought them, I mean.
Q. Do you know from what sources the institution bought it?
A. Yes. All the funds came from the Reich Ministry of the Interior. They were advanced by the Party treasurer.
Q. Well, now, at that time, wasn’t virtually everything in Germany of a critical nature on some sort of priority? Do you understand what I mean?
A. No.
Q. Would not the diversion of this carbon monoxide in tubes to the various institutions have to be given a priority rating and approved by someone or by some department in the government and thus be made available to the hospitals? Don’t you understand what I mean?
A. Yes, I understand. I have no idea, but I don’t believe so. Why?
Q. What was done with the bodies of these people after mercy deaths were given?
A. When the room had been cleared of gas again, stretchers were brought in and the bodies were carried into an adjoining room. There the doctor examined them to determine whether they were dead.
Q. Then what happened to the bodies?
A. When the doctor had determined death, he freed the bodies for cremation and then they were cremated.
Q. After he had freed the bodies, had determined that they were dead, they were then cremated? Is that correct?
A. Yes.
Q. There was a crematory built for every one of these institutions?
A. Yes. Crematoriums were built in the institutions.
Q. Do you know whether or not—what department or agency, either under the government, that is, the Reich government, or under the superintendent of the various institutions, was responsible for this detail of cremation?
A. I don’t understand. Bouhler ordered the cremation. Bouhler ordered, on principle, that the bodies were to be cremated after death. There was no office for that.
Q. Was there any report made to anyone of the fact that certain people, who had been selected for euthanasia had finally arrived at these institutions, had actually been accorded the privilege of mercy deaths and then had been cremated?
A. No. I know nothing about that.
Q. No records were kept at all?
A. Oh, I thought you said reports. Now you mean records?
Q. I don’t care what you call it. There must have been a report or record of some kind kept of these people. Was there?
A. Yes, of course. Not only the case histories, but the personal data of the individual patients were collected at the euthanasia institution and there the death records were added and whatever else was available. In my direct examination I pointed out that there were announcements to the agencies concerned, for example, the guardianship court. All these files were sent to Tiergartenstrasse 4.
Q. They were finally sent to Tiergartenstrasse 4?
A. Yes.
Q. Isn’t it true that only in that way could an accurate record or report of this program be made?
A. I didn’t understand. Whether this fact created accurate records about the people, or whether records were kept?
Q. Records were kept, were they not, of this entire transaction of each individual from the time he was expertized?
A. Yes.
Q. Until finally he was cremated?
A. Yes.
Q. And those records were filed with T-4?
A. Yes. They were kept there.
Q. Now, I believe you said that these euthanasia chambers were built to resemble shower rooms?
A. Yes. That’s how I remember it.
Q. And the only people that were accorded euthanasia were people who were incurably insane, I think you said?
A. Yes.
Q. These were people who, as you put it, on ethical grounds did not have the mental capacity either to consent or to resist the decision to grant them euthanasia, and that consequently as you viewed it, it was a humane procedure to accord them a mercy death; is that correct, did I understand you correctly?
A. Yes.
Q. Now, were these people, the ones whom you saw, so insane as not to understand where they were or what was going on around them?
A. I can only say that of course I am not a doctor and therefore not in a position to judge the condition of such patients, but when I was at such institutions I myself saw that the patients, in as far as they were able to walk, went into these chambers or rooms where they were told to go without any objection and sat down on the benches or lay down and were quite quiet.
I don’t know to what extent they realized where they were. I do know, however, that they were not in any way worried, but perfectly calm. Bouhler had ordered that the doctors were to arrange things so that the patients would not realize what was being done to them.
Q. And that was the reason that the gas chambers were constructed to resemble shower rooms, I suppose?
A. Yes.
Q. And these people thought that they were going in to take a shower bath?
A. If any of them had any power of reasoning, they no doubt thought that.
Q. Well now, were they taken into the shower rooms with their clothes on, or were they nude?
A. No. They were nude.
Q. In every case?
A. Whenever I saw them, yes.
Q. And you said, I believe, yesterday that you witnessed perhaps some 10 to 12, or 15, or 20 occasions when groups were accorded mercy deaths?
A. No. I said that I visited each of the institutions, with the exception of Hadamar, at least once, perhaps twice.
Q. And on each occasion did you witness the according of a mercy death to a group?
A. Yes.
Q. And I believe you said yesterday that some of these groups were adults, that some groups were men, other groups were women, and that on some occasions the groups were made up of both men and women, is that correct?
A. No. Apparently I did not express myself clearly. They were either men or women, but I saw both.
Q. And you think perhaps you saw as many as 20 to 30 comfortably accommodated in the chamber?
A. Yes, quite comfortably. There was plenty of room.
* * * * *
CROSS-EXAMINATION
* * * * *
DR. HOCHWALD: You never cooperated in the program of extermination of the Jews, is that correct?
DEFENDANT BRACK: No. I personally never did.
Q. Is the name Eichmann, Obersturmbannfuehrer Adolf Eichmann, familiar to you?
A. Yes. I know the name now.
Q. You did not know him before? That is, during the war?
A. No, not to my knowledge.
Q. Did you know anything about his activities during the war from your own knowledge, not what you heard now?
A. I cannot remember ever having heard the name Eichmann before.
Q. In order to keep the record straight I would like to offer Document NO-2737. This is an excerpt from the judgment of the International Military Tribunal about the activities of Eichmann, and I would like to ask the Tribunal whether I should give an identification number to this document or whether the Tribunal will take judicial notice of the document.
PRESIDING JUDGE BEALS: While the Tribunal will take judicial notice of the document mentioned, it would be convenient to have an identification number for the purpose of identification only.
DR. HOCHWALD: So it will be Prosecution Exhibit 505 for identification; extract from the judgment of the International Military Tribunal:[116]
“In the summer of 1941, however, plans were made for the ‘final solution’ of the Jewish question in Europe. This ‘final solution’ meant the extermination of the Jews, which early in 1939 Hitler had threatened would be one of the consequences of an outbreak of war, and a special section in the Gestapo under Adolf Eichmann, as head of Section B-4 of the Gestapo, was formed to carry out the policy * * *
* * * * *
“* * * Adolf Eichmann, who had been put in charge of this program by Hitler, has estimated that the policy pursued resulted in the killing of 6,000,000 Jews, of which 4,000,000 were killed in the extermination institutions.”
Did you ever have any conferences or discussions with Eichmann concerning the extermination of the Jews and the solution of the Jewish problem?
DEFENDANT BRACK: I already said that I did not remember having heard the name Eichmann at all.
Q. I want to put to you NO-997, which is Prosecution Exhibit 506 for identification, your Honors. This is a draft of a letter from the Reich Minister for the Occupied Eastern Territories to the Reich Commissioner for the East:
“Solution of the Jewish Problem.
“Reference: Your report of 4 October 1941, concerning the solution of the Jewish problem.
“I have no objection against your suggestion for the solution of the Jewish problem. Attached please find a memorandum concerning the conversation between my expert consultant, Amtsgerichtsrat Dr. Wetzel, Oberdienstleiter Brack of the Chancellery of the Fuehrer, and Sturmbannfuehrer Eichmann, expert consultant to the Reich Security Main Office. Please note the details of the matter from this memo. Will you please take the necessary steps at the Reich Security Main Office and with Oberdienstleiter Brack from the Chancellery of the Fuehrer via your Higher SS and Police Leader. Please keep me informed.
[Handwritten] F. d. H. M. [For the Minister]
“2d Copy “(a) Reich Security Main Office “(b) Chancellery of the Fuehrer Attention: Oberdienstleiter Brack, Copy of (1), including enclosure for information.”
Did you receive a copy of this letter?
A. May I first ask you what the date of this letter is?
Q. Only 1941 is mentioned here. But that is the date I told you. Did you receive a copy of this letter, Herr Brack?
A. I did not receive a copy of it nor did I even see a copy of that letter, nor do I know this Amtsgerichtsrat Wetzel.
Q. Did you have a conference with Eichmann on this problem, on the solution of the Jewish question?
A. I already said I cannot even remember the name Eichmann, nor can I remember the name Wetzel.
Q. Do you know anything about the matters discussed at this conference concerning the solution of the Jewish problem?
A. No. I know nothing.
Q. You have no idea. You never made any suggestions as to what kind of treatment or what kind of gas chambers should be used for the solution of the Jewish problem? You never did that?
A. I can remember nothing in this connection.
Q. You were questioned by the Tribunal last Friday as to whether plans were made for the construction of the gas chambers in the euthanasia stations or whether an engineer or specialist was ordered to assist the directors of the stations in setting up such gas chambers, were you not?
A. Yes.
Q. You were not able to give any information to the Tribunal on that fact, were you?
A. No. I said I didn’t concern myself with these matters.
Q. Is the name Kallmeyer, K-a-l-l-m-e-y-e-r, familiar to you?
A. Yes. But I can’t remember in which connection.
Q. His wife executed an affidavit for you here. (Brack 39, Brack Ex. 23.) Do you remember him now?
A. Yes. Yes, I remember him now.
Q. Was Kallmeyer the engineer, or was he a chemist, who made these plans for gas chambers and assisted the directors in euthanasia stations in setting up these gas chambers?
A. No. Kallmeyer had to check that the gas chambers were operating properly, but I don’t believe he made any plans for that purpose.
Q. Kallmeyer was the man who supervised these gas chambers, was he not?
A. I believe so, yes, but not for long, only for a short time.
Q. All right. And does the name Kallmeyer refresh your memory as to eventual plans you made together with Eichmann about the solution of the Jewish problem, Herr Brack?
A. No.
Q. I want to put to you Document NO-365, which will be Prosecution Exhibit 507 for identification, your Honors. This is a draft from the Reich Ministry for the Occupied Territories dated Berlin, 25 October 1941.
“Referent AGR. Dr. Wetzel
“Re: Solution of the Jewish Question
“1. To the Reich Commissioner for the East
“Re: Your Report of 4 October 1941 Concerning Solution of the Jewish question
“Referring to my letter of 18 October 1941, you are informed that Oberdienstleiter Brack of the Chancellery of the Fuehrer has declared himself ready to collaborate in the manufacture of the necessary shelters, as well as the gassing apparatus. At the present time the apparatus in question are not on hand in the Reich in sufficient number; they will first have to be manufactured. Since in Brack’s opinion the manufacture of the apparatus in the Reich will cause more difficulty than if manufactured on the spot, Brack deems it most expedient to send his people direct to Riga, especially his chemist Dr. Kallmeyer, who will have everything further done there. Oberdienstleiter Brack points out that the process in question is not without danger, so that special protective measures are necessary. Under these circumstances I beg you to turn to Oberdienstleiter Brack, in the Chancellery of the Fuehrer, through your Higher SS and Police Leader and to request the dispatch of the chemist Dr. Kallmeyer as well as of further aides. I draw attention to the fact that Sturmbannfuehrer Eichmann, the referent for Jewish questions in the RSHA, is in agreement with this process. On information from Sturmbannfuehrer Eichmann, camps for Jews are to be set up in Riga and Minsk to which Jews from the old Reich territory may possibly be sent. At the present time, Jews being deported from the old Reich are to be sent to Litzmannstadt, [Lodz] but also to other camps, to be later used as labor in the East so far as they are able to work.
“As affairs now stand, there are no objections against doing away with those Jews who are unable to work with the Brack remedy. In this way occurrences would no longer be possible such as those which, according to a report presently before me, took place at the shooting of Jews in Vilna and which, considering that the shootings were public, were hardly excusable. Those able to work, on the other hand, will be transported to the East for labor service. It is self-understood that among the Jews capable of work, men and women are to be kept separate.
“I beg you to advise me regarding your further steps.”
Herr Brack, are you still going to maintain what you said here in direct examination, namely, that you tried to protect the Jews and to save the Jews from their terrible fate and that you were never a champion of the extermination program?
A. I should even like to maintain that misuse, terrible misuse, was made of my name. I see from this letter and from the date of this letter that all these negotiations were carried out at a time when I was far away from Berlin, when I was on sick leave. If I have the possibility I hope I shall be able to bring witnesses who will testify to that effect. I must frankly admit that at this period something was going on which entirely contradicted my opinion, but this could only have been done under misuse of my name and my agency. I was not willing to participate in these things.
Q. Can you tell me, Herr Brack, where Riga and Minsk are located?
A. Riga is on the Baltic in Latvia, and Minsk is in Russia.
Q. These two places were outside Germany, were they not?
A. Yes.
Q. Prosecution has no further questions at this time.
EXTRACT FROM THE TESTIMONY OF PROSECUTION WITNESS WALTER E. SCHMIDT[117]
CROSS-EXAMINATION
* * * * *
DR. SERVATIUS: What kind of directives were given at that time about the execution of the Euthanasia Program?
WITNESS SCHMIDT: Well, the same directives as were finally carried out—to move the invalids from lunatic asylum to the euthanasia institution. I personally received subsequently the orders from the Reich committee which had already been discussed during that meeting.
Q. Did you at that time consider that an order for murder?
A. In no way at all. The jurists in Berlin told us that this was a legal matter, that it was a Hitler decree or a law which had been duly approved; also that the jurists had discussed whether Hitler was authorized to issue such a decree and decided in the affirmative, and we were told that this was a matter which was a quite legal—
Q. Witness, a little slower.
A. That it was a legal task of the State which had already been planned in 1932 and which was also being planned in other countries and that we would not incriminate ourselves in any way, on the contrary, a sabotage of this order would be a criminal offense. The question of secrecy was also discussed in detail and it was stated that this was a kind of law now; that the patients were not to have knowledge of such a measure beforehand because otherwise they would be excited, and that was probably the main reason why this law could not be published. In addition at that time we were at war and those kinds of measures should be kept secret in the interior.
Q. Who were the people to be concerned by the Euthanasia Program?
A. The incurably sick. However, it was not quite clear to me where the limit was to be drawn. For me personally, such a measure could only be considered in the cases of persons who were dying anyhow.
Q. Was there any mention made at that time of “useless eaters” and other economic points of view?
A. I never actually heard the words “useless eaters” at all during the war.
Q. Was it mentioned at the time that the institution had to be kept free for other purposes, and that that was the reason?
A. The reason for this measure was only touched upon briefly. We were told that these were tasks of the state which had become urgent because of the war and, yes, of a eugenic nature.
Q. How about the children?
A. At the time there was always talk about the last medical aid.
Q. Well, if I understood you correctly, the decisive viewpoint was the medical one?
A. Yes. I only observed it from the medical point of view.
Q. Now was the procedure actually carried out from this point of view? Or didn’t this so-called program actually go far beyond its limits in its execution?
A. The limits of the program were certainly exceeded to a great extent. I personally did not see it myself, but on the basis of the reports I received, I must say that excesses certainly took place.
Q. Witness, how was it in your institution with reference to excesses?
A. In my institution procedure was taken only on the basis authorized by law. We also had a therapy station. Of course, I must say, it was not very nice to watch these transports.
Q. Now, you said that later on Eastern workers were picked up?
A. Yes.
Q. Wasn’t that in excess of the original order which you received?
A. I cannot say that. I don’t know.
Q. Do you know where the order came from to transport these people away?
A. From the Ministry of the Interior. It was given to us by the superior office of the Ministry of the Interior.
Q. You mean the Reich Minister of the Interior?
A. Yes.
Q. You further mentioned that the action was concluded in August 1941, that it was stopped. Do you know the reason for this?
A. Yes. I do not know the official reason, but I heard of it unofficially. I heard that Herr von Galen protested, and that was probably why the whole procedure was stopped. I emphasize that I don’t know for certain, but anyway for me it was a reason.
Q. Well was this procedure actually stopped everywhere in the end?
A. No. When Hadamar was closed I immediately assumed that some other institution would continue this task or that the procedure would be followed up in some other way. That is also what Mr. von Hegener said when he was there.
Q. You said that these Eastern workers were collected by the same busses as before?
A. Yes. The busses were the same. They were big black busses, and we knew the drivers because they came frequently.
Q. To whom did the busses belong? To the Gauleiter’s office?
A. These busses were owned by the transport company. The Sick Transport Company in Berlin. Some of the personnel remained in Hadamar.
Q. Was there no medical personnel?
A. No. There was no medical personnel.
Q. You said something about the excesses with reference to the program.
A. One must differentiate between how things were until the action was stopped in 1941, and how it was later on.
Q. What excesses do you know of before the action was stopped in 1941?
A. You mean individually?
Q. Yes, in your institution.
A. There were none at all in our institution. The people were transported away.
Q. You acted according to directives?
A. Yes. I personally was not in charge of this action. My chief was in charge. But as far as I know no excesses were committed by the nursing personnel. Of course, some of the obstinate patients refused to enter the busses. That is natural.
Q. Were these all extreme cases which were sent for under this Euthanasia Program?
A. Of course, it depends where the limit is drawn. One can maintain the view that a large part of the patients, perhaps, might have undergone a certain change through modern shock treatment or some other modern method of treatment. But with those cases there in which the mental disease was in a very advanced stage, in my opinion, most of the patients no longer had any chance to enjoy life.
EXTRACTS FROM THE TESTIMONY OF DEFENDANT KARL BRANDT[118]
DIRECT EXAMINATION
* * * * *
DR. SERVATIUS: Witness, you are charged with participation in the Euthanasia Program. I shall show you the decree of 1 December [1 September] 1939. (NO-630, Pros. Ex. 330.) Please describe how this decree came about.
DEFENDANT KARL BRANDT: After the end of the Polish campaign in about October [sic], the Fuehrer was at Obersalzberg. I was called to him for some reason which I can no longer remember and he told me that because of a document which he had received from Reichsleiter Bouhler, he wanted to bring about a definite solution in the euthanasia question. He gave me general directives on how he imagined it, and the fundamentals were that insane persons who were in such a condition that they could no longer take any conscious part in life were to be given relief through death. General instructions followed about petitions which he himself had received, and he told me to contact Bouhler himself about the matter. I did so by telephone on the same day, and I then informed Hitler about my conversation with Bouhler. Thereupon he drafted a formulation of this decree, not in the form we have here, but in a similar form, and certain changes were made. My request was that a precaution be introduced because of the medical participation, and I used an expression for this which was familiar to me from expert opinions. It stated that euthanasia could be carried out on persons and then comes the formulation “who are incurable with a probability bordering on certainty.” Since this formulation was strange to him, “on the most careful diagnosis of their condition of sickness” was added. Therefore, when this decree was signed about the end of October, the text read as follows: “Reichsleiter Bouhler and Dr. Brandt are charged with the responsibility of extending the authority of certain doctors, to be designated by name in such a manner that persons who, according to human judgment, are incurably sick, can, on the most careful diagnosis of their condition of sickness, be accorded a mercy death.”
Q. Did you talk to Bouhler?
A. At first I only talked to Bouhler on the telephone and even after the decree was signed I did not talk to him immediately but sent the signed decree to him in Berlin.
Q. And what was Hitler’s idea of euthanasia? What did he understand by it?
A. The decisive thing for him was also expressed here in the decree, namely, that incurably sick persons—actually it should have read insane persons—other persons were absolute exceptions—could be accorded a mercy death. That is, therefore, a measure dictated by purely humane considerations, and nothing else could be thought under any circumstances, and nothing else was ever said to me.
Q. You said that the Fuehrer gave you the assignment on the basis of a telephone call from Bouhler? The call from Bouhler could not have been the only reason. There must have been others.
A. It was not a telephone call. There was some kind of a documentary incident which was decisive. It may be that the Fuehrer already had these documents or that Bouhler spoke to him again about them. I don’t know exactly. But this was not the cause of the Euthanasia Program being started. In his book, “Mein Kampf,” Hitler had already referred to it in certain chapters, and the law for the “prevention of the birth of children suffering from hereditary diseases” is a proof that Hitler had definitely concerned himself with such problems earlier. The law for the “prevention of the birth of children suffering from hereditary diseases” is actually a law which followed the events. It certainly arose because children with congenital diseases existed. Proof that this is a problem which affects the whole world lies in the fact that similar laws with similar formulation and contents have been passed in other countries.
Dr. Gerhardt Wagner, who was Dr. Conti’s predecessor, discussed these questions at the Party rally in Nuernberg. I did not talk to Gerhardt Wagner at that time and had nothing to do with these things. However, I hear now that in 1935 Gerhardt Wagner had a film made presenting the problem of the insane. Apparently the film was made in asylums with insane persons.
Q. Witness, did not the requests received by Bouhler and the Fuehrer play a certain part?
A. Requests to this effect were certainly constantly received by Bouhler, and the Chancellery of the Fuehrer always received such things. I only know that these requests were afterwards passed on to the Reich Ministry of the Interior. I myself know of one request which was sent to the Fuehrer himself through his adjutant’s office in the spring of 1939. The father of a deformed child approached the Fuehrer and asked that this child or this creature should be killed. Hitler turned this matter over to me and told me to go to Leipzig immediately—it was in Leipzig—to confirm the fact on the spot. It was a child who was born blind, an idiot—at least it seemed to be an idiot—and it lacked one leg and part of one arm.
Q. Witness, you were speaking about the Leipzig affair, about this deformed child. What did Hitler order you to do?
A. He ordered me to talk to the physicians who were looking after the child to find out whether the statements of the father were true. If they were correct, then I was to inform the physicians in his name that they could carry out euthanasia.
The important thing was that the parents should not feel themselves incriminated at some later date as a result of this euthanasia—that the parents should not have the impression that they themselves were responsible for the death of this child. I was further ordered to state that if these physicians should become involved in some legal proceedings because of this measure, these proceedings would be quashed by order of Hitler. Martin Bormann was ordered at the time to inform Guertner, the Minister of Justice, accordingly about this case.
Q. What did the doctors who were involved say?
A. The doctors were of the opinion that there was no justification for keeping such a child alive. It was pointed out that in maternity wards under certain circumstances it is quite natural for the doctors themselves to perform euthanasia in such a case without anything further being said about it. No precise instructions were given in that respect.
Q. Was this problem of deformities dealt with anywhere else?
A. The problem of deformities was probably discussed before this Leipzig case. However, in the course of the summer it was worked on in a more concrete form, first of all by the Ministry of the Interior. In this case, Dr. Linden participated as a special consultant, probably as representative of Dr. Conti—who became Reich Minister for Health after the death of his predecessor Wagner, and then afterwards State Secretary in the Ministry of the Interior.
Q. Who was Dr. Linden?
A. Dr. Linden was Ministerialrat in the Reich Ministry of the Interior. He was a doctor and was the competent official who was later in charge of this office for the mental institutions, perhaps he already was at the time, I don’t know exactly. Later on, during the treatment of the euthanasia question he was appointed exponent of all these matters.
Q. What was the procedure at the time? Was Hitler informed about all these matters?
A. In August 1944 he ordered me to participate in a conference which took place between Dr. Linden, Mr. Bouhler, and some other people. The question of the registration of these deformities was discussed, and also how to set about this registration. Dr. Linden, on behalf of the Ministry of the Interior, submitted pertinent documents, questionnaires, etc., which were then discussed once more in detail. It was the preparatory work for the Reich Committee for the Registration of Serious Hereditary and Constitutional Diseases, which was subsequently established.
* * * * *
CROSS-EXAMINATION
* * * * *
MR. MCHANEY: Now, Witness, this is the first time that I have ever heard mentioned in connection with the Euthanasia Program that anybody’s consent had to be obtained, and I take it that it is a rather fundamental matter. Are you ready to swear to this Tribunal that the Reich committee never performed euthanasia on children without obtaining the consent of the parents of the child?
DEFENDANT KARL BRANDT: I said yesterday that the approval of the parents was necessary for the euthanasia of children, and I am of the opinion that such approval was actually given.
Q. Was the approval written approval or verbal approval?
A. That I don’t know. I cannot say.
Q. Have you ever seen any written approval?
A. I believe that during the first period when this authorization was submitted for signature to Bouhler and to me, all the other papers were together with it, such as approvals, etc. It may be that during the later period we were only concerned with the authorization papers and that the other papers were left with the Reich committee. However, I did see such letters of approval but I don’t believe that they were in writing in every case. I think they were partly given orally through the local physician or some other agency which dealt with the case.
Q. Well, Witness, let’s look at this letter again. I find some difficulty in reconciling your testimony about the necessity of consent by the relatives of the child with what’s written here in this letter. For example, the third line reads: “It seems that the relatives of Anna Gasse tried to obtain her release by every possible means.” If, Witness, it was necessary to obtain consent, why was there any question about releasing Anna Gasse?
A. I cannot say that either. According to my opinion, the child could not be kept in an institution if the parents wanted it at home.
Q. And the last sentence which reads, “If from a medical point of view such release is warranted, one could perhaps take into consideration whether one should not perhaps comply with such request in the interest of the good reputation of the institution.” Don’t you find that language just a bit restrained, Witness?
A. Yes. I think it is very restrained.
-----
[93] Trial of the Major War Criminals, vol. I, pp. 247, 301, Nuremberg, 1947.
[94] Defendant in case before International Military Tribunal. See Trial of the Major War Criminals, Vols. I-XLII, Nuremberg, 1947.
[95] Objection to admission in evidence sustained.
[96] Ibid.
[97] Objection to admission in evidence sustained.
[98] Defendant (in absentia) before International Military Tribunal. See Trial of the Major War Criminals, vols. I-XLII, Nuremberg, 1947.
[99] Code name for the killing of non-German nationals and Jews who were inmates of the concentration camps.
[100] Trial of the Major War Criminals, vol. XX, pp. 490-1, Nuremberg, 1948.
[101] Trial of the Major War Criminals, vol. I, p. 247, Nuremberg, 1947.
[102] United States vs. Alfons Klein, et al. See Law Reports of Trials of War Criminals, vol. I, pp. 46-54, London, 1947.
[103] Ibid.
[104] Not introduced in evidence.
[105] Not introduced in evidence.
[106] United States vs. Alfons Klein, et al. See Law Reports of Trials of War Criminals, vol. I, pp. 46-54, London, 1947.
[107] Ibid.
[108] Final plea is recorded in mimeographed transcript, 18 July 1947, pp. 11220-11244.
[109] Defendant before International Military Tribunal. See Trial of the Major War Criminals, vol. I, pp. 298-301, Nuremberg, 1947.
[110] Literally: Nonprofit Sick Transport Company.
[111] German or of similar blood (of German blood), Jew, Jewish mixed breed Grades I or II, Negro (mixed breed).
[112] Defendant in case of United States vs. Josef Altsetoetter, et al. See Vol. III.
[113] Enclosures were not available.
[114] Complete testimony is recorded in mimeographed transcript, 16, 17 Jan. 1947, pp. 1866-1946.
[115] Complete testimony is recorded in mimeographed transcript, 7, 8, 9, 12, 13, 14, 15, 16, 19 May 1947, pp. 7413-7772.
[116] Trial of the Major War Criminals, vol. I, pp. 250, 252-253, Nuremberg, 1947.
[117] Complete testimony is recorded in mimeographed transcript, 16 Jan 1947, pp. 1816-1863.
[118] Complete testimony is recorded in mimeographed transcript, 3, 4, 5, 6, 7 Feb 1947, pp. 2301-2661.
E. Selections From Photographic Evidence of the Prosecution
POST-MORTEM DISSECTION OF HIGH-ALTITUDE EXPERIMENTAL SUBJECTS SHOWING AIR BUBBLES IN BLOOD VESSELS IN SUBARACHNOID SPACE OF BRAIN AND UNDER PLEURA OF ANTERIOR CHEST WALL
EXPOSURES OF THE WITNESS MARIA KUSMIERCZUK WHO UNDERWENT SULFANILAMIDE AND BONE EXPERIMENTS WHILE AN INMATE OF THE RAVENSBRUECK CONCENTRATION CAMP
DOCUMENT NO-1080 E PROSECUTION EXHIBIT 219 E
DOCUMENT NO-1080 F PROSECUTION EXHIBIT 219 F
DOCUMENT NO-1082 A PROSECUTION EXHIBIT 214 A
DOCUMENT NO-1082 C PROSECUTION EXHIBIT 214 C
VIII. EVIDENCE AND ARGUMENTS ON IMPORTANT ASPECTS OF THE CASE
A. Applicability of Control Council Law No. 10 to Offenses Against Germans During the War
a. Introduction
Under count III of the indictment, “Crimes against Humanity”, the prosecution alleged that the defendants had engaged in medical experiments “upon German civilians and nationals of other countries” and that the defendants had participated in executing “the so-called ‘euthanasia program’ of the German Reich, in the course of which the defendants herein murdered hundreds of thousands of human beings, including German civilians, as well as civilians of other nations”. [Emphasis added.] Insofar as these offenses involved German nationals, the defense argued that international law was not applicable. The defense argued that under, the Charter annexed to the London Agreement, crimes against humanity within the meaning of the Charter do not exist unless offenses are committed “in the execution of, or in connection with, any crime within the jurisdiction of the Tribunal”. Although the analogous provision of Control Council Law No. 10 does not include the words of limitation “in the execution of, or in connection with any crime within the jurisdiction of the Tribunal”, the defense argued that Control Council Law No. 10 was only “an implementation law” of the London Agreement and Charter, and hence could not increase the scope of the offenses defined by the London Charter. Pointing to the section of the judgment of the International Military Tribunal entitled “The law relating to war crimes and crimes against humanity”,[119] the defense noted that the IMT stated: “to constitute crimes against humanity, the acts relied on before the outbreak of war must have been in execution of, or in connection with, any crime within the jurisdiction of the Tribunal”,[120] that is, crimes against peace or war crimes. Although the indictment in the Medical Case did not allege that crimes were committed against German nationals before the outbreak of the war on 1 September 1939, the defense further argued that any offenses against German nationals committed after 1939 had not been shown to be “in execution of, or in connection with” crimes against peace and war crimes and hence were not cognizable as crimes within the jurisdiction of the Tribunal.
Extracts from the closing statement of the prosecution appear below on pages 910 to 915. A summation of the evidence on this question by the defense has been taken from the closing brief for defendant Karl Brandt. It appears below on pages 915 to 925.
b. Selection from the Argumentation of the Prosecution
EXTRACTS FROM THE CLOSING STATEMENT OF THE PROSECUTION[121]
* * * * *
The Law of the Case
Before proceeding to outline the prosecution’s case, it may perhaps be desirable to anticipate several legal questions which will undoubtedly be raised with respect to war crimes and crimes against humanity, as defined in Article II of Control Council Law No. 10. Law No. 10 is, of course, the law of this case and its terms are conclusive upon every party to this proceeding. This Tribunal is, we respectfully submit, bound by the definitions in Law No. 10, just as the International Military Tribunal was bound by the definitions in the London Charter. It was stated in the IMT judgment that:[122]
“The jurisdiction of the Tribunal is defined in the Agreement and Charter, and the crimes coming within the jurisdiction of the Tribunal, for which there shall be individual responsibility, are set out in Article 6. The law of the Charter is decisive and binding upon the Tribunal * * *.”
* * * * *
In outlining briefly the prosecution’s conception of some of the legal principles underlying war crimes and crimes against humanity, I shall, with the Tribunal’s permission, adopt some of the language from the opening statement of the prosecution in the case against Friedrich Flick, et al., now pending before Tribunal IV. [See Vol. VI.] General Taylor there said—
* * * * *
“Law No. 10 is * * * a legislative enactment by the Control Council and is therefore part of the law of and within Germany. One of the infirmities of dictatorship is that, when it suffers irretrievable and final military disaster, it usually crumbles into nothing and leaves the victims of its tyranny leaderless amidst political chaos. The Third Reich had ruthlessly hunted down every man and woman in Germany who sought to express political ideas or develop political leadership outside of the bestial ideology of nazism. When the Third Reich collapsed, Germany tumbled into a political vacuum. The declaration by the Allied Powers of 5 June 1945 announced the ‘assumption of supreme authority’ in Germany ‘for the maintenance of order’ and ‘for the administration of the country’, and recited that—
‘There is no central government or authority in Germany capable of accepting responsibility for the maintenance of order, the administration of the country, and compliance with the requirements of the victorious powers.’
“Following this declaration, the Control Council was constituted as the repository of centralized authority in Germany. Law No. 10 is an enactment of that body and is the law of Germany, although its substantive provisions derive from and embody the law of nations. The Nuernberg Military Tribunals are established under the authority of Law No. 10,[123] and they render judgment not only under international law as declared in Law No. 10, but under the law of Germany as enacted in Law No. 10. The Tribunals, in short, enforce both international law and German law, and in interpreting and applying Law No. 10, they must view Law No. 10 not only as a declaration of international law, but as an enactment of the occupying powers for the governance of and administration of justice in Germany. The enactment of Law No. 10 was an exercise of legislative power by the four countries to which the Third Reich surrendered, and, as was held by the International Military Tribunal:[124]
‘* * * the undoubted right of these countries to legislate for the occupied territories has been recognized by the civilized world.’”
War crimes are defined in Law No. 10 as atrocities or offenses in violation of the laws or customs of war. This definition is based primarily upon the Hague Convention of 1907 and the Geneva Convention of 1929, which declare the law of nations at those times with respect to land warfare, the treatment of prisoners of war, the rights and duties of a belligerent power when occupying territory of a hostile state, and other matters. The laws and customs of war apply between belligerents, but not domestically or among allies. Crimes by German nationals against other German nationals are not war crimes, nor are acts by German nationals against Hungarians or Romanians. The war crimes charged in this indictment all occurred after 1 September 1939, and it is therefore unnecessary to consider the somewhat narrow limitation of the scope of war crimes by the International Military Tribunal to acts committed after the outbreak of war. One might argue that the occupations of Austria and the Sudetenland in 1938, and of Bohemia and Moravia in March 1939, were sufficiently similar to a state of belligerency to bring the laws of war into effect, but such questions are academic for purposes of this case.
* * * * *
In connection with the charge of crimes against humanity, it is also anticipated that an argument will be made by the defense to the effect that crimes committed by German nationals against other German nationals cannot constitute crimes against humanity as defined by Article II of Control Council Law No. 10 and hence are not within the jurisdiction of this Tribunal. The evidence of the prosecution has proved that in substantially all of the experiments prisoners of war or civilians from German-occupied territories were used as subjects. This proof stands uncontradicted save by general statements of the defendants that they were told by Himmler or some unidentified person that the experimental subjects were all German criminals or that the subjects all spoke fluent German. Thus, for the most part, the acts here in issue constitute war crimes and hence, at the same time, crimes against humanity. Certainly there has been no proof whatever that an order was ever issued restricting the experimental subjects to German criminals as distinguished from non-German nationals. If, in this or that minor instance, the proof has not disclosed the precise nationality of the unfortunate victims or has even shown them to be Germans, we may rest assured that it was merely a chance occurrence.
Be that as it may, the prosecution does not wish to ignore a challenge to the jurisdiction of the Tribunal even though it is of minor importance to this case. One thing should be made clear at the outset: We are not here concerned with any question as to jurisdiction over crimes committed before 1 September 1939, whether against German nationals or otherwise. That subject has been mooted and is in issue in another case now on trial, but the crimes in this case all occurred after the war began.
Moreover, we are not concerned with the question whether crimes against humanity must have been committed “in execution of or in connection with any crimes within the jurisdiction of the Tribunal.” The International Military Tribunal construed its Charter as requiring that crimes against humanity be committed in execution of, or in connection with, the crime of aggressive war. Whatever the merit of that holding, the language of the Charter of the International Military Tribunal which led to it is not included in the definition of crimes against humanity in Control Council Law No. 10. There can be no doubt that crimes against humanity as defined in Law No. 10 stand on an independent footing and constitute crimes per se. In any event, the crimes with which this case is concerned were in fact all “committed in execution of, or in connection with, the aggressive war.” This is true not only of the medical experiments, but also of the Euthanasia Program, pursuant to which a large number of non-German nationals were killed. The judgment of the International Military Tribunal expressly so holds.[125]
Thus, it is clear that the only issue which is raised in this case as to crimes against humanity is whether the Tribunal has jurisdiction over crimes committed by Germans against Germans. Does the definition of crimes against humanity in Control Council Law No. 10 comprehend crimes by Germans against Germans of the type with which this case is concerned? The provisions of Law No. 10 are binding upon the Tribunal as the law to be applied to the case.[126] The provisions of Section 1(c) of Article II are clear and unambiguous. Crimes against humanity are there defined as—
“Atrocities and offenses, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial, or religious grounds whether or not in violation of the domestic laws of the country where perpetrated.” [Emphasis supplied.]
The words “any civilian population” cannot possibly be construed to exclude German civilians. If Germans are deemed to be excluded, there is little or nothing left to give purpose to the concept of crimes against humanity. War crimes include all acts listed in the definition of crimes against humanity when committed against prisoners of war and the civilian population of occupied territory. The only remaining significant groups are Germans and nationals of the satellite countries, such as Hungary or Romania. It is one of the very purposes of the concept of crimes against humanity, not only as set forth in Law No. 10 but also as long recognized by international law, to reach the systematic commission of atrocities and offenses by a state against its own people. The concluding phrase of the definition of crimes against humanity, which is in the alternative, makes it quite clear that crimes by Germans against Germans are within the jurisdiction of this Tribunal. It reads “or persecutions on political, racial, or religious grounds whether or not in violation of the domestic laws of the country where perpetrated.” This reference to “domestic laws” can only mean discriminatory and oppressive legislation directed against a state’s own people, as for example, the Nuernberg Laws against German Jews. [Emphasis supplied.]
The matter is put quite beyond doubt by Article III of Law No. 10 which authorizes each of the occupying powers to arrest persons suspected of having committed crimes defined in Law No. 10, and to bring them to trial “before an appropriate tribunal.” Paragraph 1(d) of Article III further provides that—
“Such Tribunal may, in the case of crimes committed by persons of German citizenship or nationality against other persons of German citizenship or nationality, or stateless persons, be a German court, if authorized by the occupying authorities.”
This constitutes an explicit recognition that acts committed by Germans against other Germans are punishable as crimes under Law No. 10 according to the definitions contained therein in the discretion of the occupying power. This has particular reference to crimes against humanity, since the application of crimes against peace and war crimes, while possible, is almost entirely theoretical. If the occupying power fails to authorize German courts to try crimes committed by Germans against other Germans (and in the American zone of occupation no such authorization has been given), then these cases are tried only before non-German tribunals, such as these Military Tribunals.
What would be the effect of a holding that crimes by Germans against Germans can under no circumstances be within the jurisdiction of the Tribunal? Is this Tribunal to ignore the proof that tens of thousands of Germans were exterminated pursuant to a secret decree, because a group of criminals in control of a police state thought them “useless eaters” and an unnecessary burden, or that German prisoners were murdered and mistreated by thousands in concentration camps, in part by medical experimentation? Military Tribunal II in the Milch case held that crimes against nationals of Hungary and Romania were crimes against humanity. There is certainly no reason in saying that there is jurisdiction over crimes by Germans against Hungarians but not against Germans.
The judgment of the International Military Tribunal shows a clear recognition of its jurisdiction over crimes by Germans against Germans. After reviewing a large number of inhumane acts in connection with war crimes and crimes against humanity, the Tribunal concluded by saying that—
“* * * from the beginning of the war in 1939 war crimes were committed on a vast scale, which were also crimes against humanity; and insofar as the inhumane acts charged in the indictment, and committed after the beginning of the war, did not constitute war crimes, they were all committed in execution of, or in connection with the aggressive war, and therefore constituted crimes against humanity.”[127]
Since war crimes are necessarily also crimes against humanity, the broader definition of the latter can only refer to crimes not covered by the former, namely, crimes against Germans and nationals of countries other than those occupied by Germany. Moreover, the prosecution in that case maintained that the inhumane treatment of Jews and political opponents in Germany before the war constituted crimes against humanity. The Tribunal said in this connection—
“With regard to crimes against humanity there is no doubt whatever that political opponents were murdered in Germany before the war, and that many of them were kept in concentration camps in circumstances of great horror and cruelty. The policy of terror was certainly carried out on a vast scale, and in many cases was organized and systematic. The policy of persecution, repression, and murder of civilians in Germany before the war of 1939, who were likely to be hostile to the government, was most ruthlessly carried out. The persecution of Jews during the same period is established beyond all doubt.”[128]
The Tribunal was there speaking exclusively of crimes by Germans against Germans. It held that such acts were not crimes against humanity, as defined by the Charter, not because they were crimes against Germans, but because they were not committed in execution of, or in connection with, aggressive war. Indeed, the Tribunal went on to hold that the very same acts committed after the war began were crimes against humanity. No distinction was drawn between the murder of German Jews and Polish or Russian Jews. And, moreover, no distinction was drawn between criminal medical experimentation on German and non-German concentration camp inmates or the murder of German and non-German civilians under the Euthanasia Program. The Tribunal held them all to be war crimes and/or crimes against humanity.
c. Selection from the Argumentation of the Defense
_EXTRACTS FROM THE CLOSING BRIEF FOR DEFENDANT KARL BRANDT_
* * * * *
The Punishable Crime Against Humanity
The criminality of the crime against humanity is based on Law No. 10 of the Control Council for Germany. Article II of this law states—
“1. Each of the following acts is recognized as a crime:
* * * * *
c. Crime against humanity * * *.”
The concept of the crime against humanity has not been established and it is questionable whether crimes against humanity according to Law No. 10 also refer to such acts as have been committed on German nationals by German nationals. The decision of this question is of particular significance since the medical experiments with which the defendants are charged and the mercy killings executed were, in the first place, carried out on German nationals.
The question here is not to establish whether such acts are against humanity but whether they are crimes against humanity punishable according to Law No. 10 which were committed knowingly and willfully. If measures taken against German nationals do not come under the law, the evidence of the prosecution to be examined is restricted mainly to those cases in which certain foreigners were affected, and in addition, evidence must be produced proving that the defendant was aware of the fact that foreigners too had actually been involved by these measures.
It is to be understood from Law No. 10 that it is merely an implementation law to the London Agreement of 8 August 1945 and the statute belonging to it. This has been expressly stressed in the introduction, and beyond that the London Statute and the Moscow Declaration of 30 October 1943 have been declared inseparable components of the law according to Article I.
The legally pre-eminent London Statute therefore is decisive for the interpretation of the substantive law. Article 6(c) of this statute provides that crimes against humanity can be considered punishable only if they were committed “in execution of or in connection with any crime within the jurisdiction of the Tribunal * * *”. This jurisdiction, however, extends only to crimes against peace and to war crimes. The punishable crime against humanity, therefore, is restricted to the latter. The prosecution, however, has only recently championed a different opinion. In Case 5 before Tribunal IV, the case against Flick and others,[129] the prosecution declared in its opening statement on 19 April 1947 that the clause: “in connection with a crime within the jurisdiction of the tribunal” has a different meaning from what it expresses. The clause is to signify that the Tribunal is not to deal with individual crimes but only with such crimes as have been committed on a large scale and are therefore within the jurisdiction of the trial.
This meaning of the clause was not apparent to the International Military Tribunal, the prosecutors of the signatory powers at that time, nor to those who later commented on the verdict, and I do not believe that one can agree with the newly established interpretation of the prosecution. The decision of the International Military Tribunal is authoritative for the interpretation since it was pronounced by the judges of the signatory powers who were expressly appointed for application of the new law. The high authority of the International Military Tribunal is emphasized by Ordinance 7, Article X, according to which its actual findings are binding for the later courts.
This International Military Tribunal, however, has ruled that the punishable crime against humanity is a dependent, subsidiary crime and that it can only be considered a crime if it has been committed in connection with a war crime or a crime against peace. The verdict of the International Military Tribunal[130] in rejecting the criminality of crimes against humanity committed prior to the war states the following:
“The Tribunal is of the opinion that revolting and horrible as many of these crimes were, it has not been satisfactorily proved that they were done in execution of, or in connection with, any such crime.”
The prosecution before the International Military Tribunal has on its part endeavored to prove such a connection; this would not have been necessary if it had not considered this connection a part of the specification of the crime against humanity. Professor Donnedieu de Vabres, the French judge of the International Military Tribunal, expressed his attitude to this limitation of the punishable crime against humanity after the pronouncement of the verdict in a lecture quoted by the prosecution in the Flick case;[131] his opinion can be considered important. The French judge deplores the limitation of the crime against humanity, but he confirms it. This limitation is no figment of the imagination but the necessary result of the prevailing international law; it has its origin in the concept of sovereignty.
It is the purport of the Moscow Declaration and the London Statute, both of which have been incorporated into Law No. 10, to deal only with the crimes that affect the relations between nations. These relations are to be safeguarded and for that reason crimes are to be punished which are significant according to international law and which are connected with war crimes and crimes against peace. The “international” crimes are to be punished.
This significance of the international crime to be understood from the point of view of international law is especially clearly expounded in a book written by Professor Trainin who was the official advisor on judicial matters for the Soviet Union in the proceedings in Case I, the International Military Tribunal. This is a book entitled “The Criminal Responsibility of the Hitlerites” published by the Law Institute, Academy of Science in the Soviet Union, through [edited by] the academician Vishinsky. The book was written at the time the statute originated. According to this, it is not the meaning and purpose of “international criminal law” to impose punishment for crimes which have no effect beyond the borders of their own country and which do not involve the sphere of international law.
The fact that no thought was given to punishment of crimes committed within the borders of Germany is evident from the Moscow Declaration of 30 October 1943. In this declaration crimes are mentioned exclusively which have been committed in other countries to which the accused are to be returned.
If there could still be doubts with regard to the interpretation of the subsidiary nature of the crime against humanity, these doubts are eliminated by the Berlin Addendum Minutes [Zusatzprotokoll] added to the statute, dated 6 October 1945. In these minutes the subsidiary nature of the crime against humanity is elucidated by means of a correction, the apparent insignificance of which is the very thing that serves to emphasize its importance. According to this, the four Allied Main Powers, as the signatories of the statute, meet again only for the purpose of transforming a semicolon into a comma and it appears in the minutes that this was done because the meaning and intentions of the agreements and the statute require it.
Article 6 (c) of the statute was originally worded as follows and even at present is reproduced in many copies in the same form as far as punctuation is concerned:
“(c) CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war ‘;’ or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.”
The wording of the Berlin Addendum Minutes [Protocol] dated 6 October 1945 in this context reads as follows:[132]
“Whereas an Agreement and Charter regarding the Prosecution of War Criminals was signed in London on the 8th August 1945, in the English, French, and Russian languages,
“And whereas a discrepancy has been found to exist between the originals of Article 6, paragraph (c), of the Charter in the Russian language, on the one hand, and the originals in the English and French languages, on the other, to wit, the semicolon in Article 6, paragraph (c), of the Charter between the words ‘war’ and ‘or’, as carried in the English and French texts, is a comma in the Russian text,
“And whereas it is desired to rectify this discrepancy:
“NOW, THEREFORE, the undersigned, signatories of the said Agreement on behalf of their respective Governments, duly authorized thereto, have agreed that Article 6, paragraph (c), of the Charter in the Russian text is correct, and that the meaning and intention of the Agreement and Charter require that the said semi-colon in the English text should be changed to a comma, and that the French text should be amended to read as follows:
“(c) LES CRIMES CONTRE L’HUMANITE: c’est à dire l’assassinat, l’extermination, la réduction en esclavage, la déportation, et tout autre acte inhumain commis contre toutes populations civiles, avant on pendant la guerre, ou bien les persécutions pour des motifs politiques, raciaux, ou réligieux, lorsque ces actes ou persécutions, qu’ils aient constitué ou non une violation du droit interne du pays où ils ont été perpétrés ont été commis à la suite de tout crime rentrant dans la compétence du Tribunal, ou en liaison avec ce crime.
“In witness whereof the Undersigned have signed the present Protocol.
“Done in quadruplicate in Berlin this 6th day of October 1945, each in English, French, and Russian, and each text to have equal authenticity.
For the Government of the United States of America: [Signature] ROBERT H. JACKSON For the Provisional Government of the French Republic: [Signature] FRANÇOIS DE MENTHON For the Government of the United Kingdom of Great Britain and Northern Ireland: [Signature] HARTLEY SHAWCROSS For the Government of the Union of Soviet Socialist Republics: [Signature] R. RUDENKO”
Obviously it was no printing error which simply would have been corrected. This is rather a carefully thought out limitation on the part of the Signatory Powers which was clarified unmistakably. Without this limitation, a precedent of decisive significance would have been created for international law for the possibility would have existed to prosecute at any time alleged crimes against humanity in a different country. According to this, the socialist states would have assailed the social conditions in capitalistic countries as crimes against humanity, and vice versa the capitalistic states could have replied to the measures of the socialist countries with an intervention as experienced by the young Bolshevist Revolution in 1919. Precisely that however was to be prevented by not recognizing an independent crime against humanity for the protection of sovereign states. Professor Donnedieu de Vabres has particularly mentioned this point of view in his lecture as a decisive point of view of the International Military Tribunal.
The same restrictive view of this question is taken in the latest International Law of the United Nations Organization (UNO), Chapter I, Article 2, paragraph 7 of the resolution of San Francisco, concerning the establishment of UNO, dated 26 June 1945, reads that an interference in matters which are within the jurisdiction of the country is inadmissible. Accordingly it is a fixed principle of international law even today that proceedings within a state cannot entail sanction; spoken in the words of the statute, there are no independent crimes against humanity, which might be punished as international crimes.
The opinion of Hugo Grotius and his numerous adherents is rejected and is no longer valid as international law today. Interventions from points of view of humanity are declined, as their motive seems suspicious to the states.[133]
Decisive alone is the practice of the members of the body of the nations who have agreed on international law (Voelkerrechtsgemeinschaft) and the existing agreements on international law.
These legal realities must be contrasted with the extravagant opinion, which believes that the protection of humanity can only be safeguarded by a kind of international sovereignty limited by the sovereignty of the individual states. This would be an aim which we would most sincerely desire to attain, but practice shows that there are plenty of crimes against humanity even today, but no institution which has the power to punish them. There will never be such an institution, except insofar as it concerns the totally vanquished after a total war, to which in the future every war must lead.
Another point of view is quoted too which, in face of the decision of the IMT and while avoiding a precedent, will make crimes against humanity independent, at least insofar as application in Germany is concerned, with the effect that crimes of Germans against Germans could be punished by the military tribunals of the occupying power.
It is maintained that the authority of the Control Commission for Germany with regard to national law gave them the power to extend the scope of punishment for crimes against humanity, independent of the statute. This is opposed by the elementary principle of international law that the legislative authority of an occupying power only begins with the moment of occupation and therefore can have no retrospective force. This principle is not in opposition to the theory that international law acknowledged a so-called “retrospectiveness” for war crimes in a wider sense, for this retrospectiveness only refers to the “international crimes” which are effective outside of one’s own country and have an immediate influence from the point of view of international law. There it serves to carry through international penal law, the realization of which would otherwise be impossible. Here the so-called retrospectiveness means nothing else but that international law takes precedence over national law. This international point of view can have no value for national law.
If a different rule were in operation, all persons who supported the political opponent, i. e., the so-called “patriots” might be punished after the occupation of a country, and Hitler’s Commissar Order [Kommissar-Befehl] according to which all active Communists were to be shot, would be sanctioned, because they were Communists and because of that were declared enemies of mankind, i. e. “criminals against humanity.”
Such a checking of the “morals” of the enemy seems inadmissible; the checking of the conditions in one’s own country is a matter for the people itself; the latter may, on account of its laws, or in a revolution, prosecute its compatriots itself, on the grounds of their behavior. The IMT kept just to this fundamental idea of the statute and one cannot push this law aside arbitrarily by declaring on political grounds that in order to secure peace and democracy all actions committed formerly in the country must be punished as crimes against humanity.
By such an interpretation of the authority in national law you would place yourself in strong opposition to the proclamation of General Eisenhower on the occasion of the occupation of Germany; this was incorporated in Law No. 1 of Military Government, and the following was decreed under threat of death in case of violation:
“Accusation may only be brought in, sentence only be passed and punishment be inflicted, if a law which was in force at the time when the act was committed expressly declares this action punishable. Punishment of acts as a result of application of analogy or according to the opinion of the ‘sound popular feeling’ is prohibited.”
Then attempts were made to support the unlimited legislative right of the occupying power by other means, and they referred to a “debellatio” or “quasi-debellatio” or to the fact that Germany had capitulated unconditionally.
Disregarding the fact that no debellatio is in hand and that only the Allies pronounce themselves occupying powers, and, without mentioning that Grossadmiral Doenitz[134] had no valid authority to renounce the protective international law for the German people, the valid law is clearly laid down in the Hague Convention. The regulations contained there in Chapter III have been created just for a capitulation situation and regulate the right of occupation.
Unconditional capitulation does not mean renunciation of the protection of international law nor submission to arbitrariness and illegality; but capitulation within the framework of the war conventions, i. e., within the framework of the Hague Convention.
These provisions of the Hague Convention are not only valid for the time of actual fighting, but must be valid also for the time after cessation of the actual hostilities until the peace treaty. The fundamental idea of the Hague Convention is the protection of the population against the arbitrariness of the enemy, and it cannot be permitted that after cessation of hostilities stricter rules may be applied to the inhabitants of an occupied territory than during the time of actual fighting. In the time when the occupying power hardly seems endangered any more the arbitrariness of a belated punishment of political opponents for actions, which they did in their own country according to the laws of their own country, must not rule.
Law No. 10 cannot disregard this international law, which was acknowledged by the International Military Tribunal after it had been issued and this Tribunal will have to check the authority of the Control Commission and watch that no measures are taken of which the participating peoples of the Signatory States are not informed officially, as the decisive laws were submitted to no special ratification.
Thus we come to the conclusion that the crime against humanity of Law No. 10 must be the same as that of the statute. Bound to a war crime it cannot be applied to actions of Germans against Germans. Connected with a crime against peace you can imagine such crimes against Germans, but these crimes must be in the execution of or in connection with a crime against peace. So at least there must be a close connection with a certain crime.
Certainly it cannot be sufficient, therefore, that an act against a German is committed during a war and objectively furthered the war, but the perpetrator must have known that his action was in connection with a certain crime against peace, even if he himself were not guilty of it. Without this limit, all hard measures, which are taken during a war even against one’s own population, as for example against conscientious objectors and saboteurs, ought to be punished as crimes against humanity in connection with a crime against peace, if this war is declared to be an aggressive one by the enemy, after it has been lost.
Therefore certain things must be in hand which make the crime obvious and prove the connection. If you were to decide otherwise the well-formulated specifications of the statute would be superfluous, and likewise the protection of the population by the Hague Convention would be set aside in an inadmissible way, as the execution of every ordered war measure can be declared “inhuman”. This interpretation of the subsidiary nature of the crime against humanity is confirmed, if one ascertains what the real crime against humanity itself is primarily supposed to be.
In the Flick[135] case the prosecution tried to make a definition from Article 6 (c) of the statute. They referred to the clause “in connection with a crime within the jurisdiction of the court”, and interpreted this as follows: That crimes of especially large proportions must be in question, since the International Military Tribunal should only deal with such. Such an interpretation cannot be maintained, as the International Military Tribunal is competent for the most insignificant war crime too, and for every crime against peace, regardless of its dimensions.
It must be admitted that the statute does not contain a definition at all and that characteristics of a crime against humanity are not stipulated. If you want to find such a specification for an independent crime against humanity, which is detached from crimes against peace and war crimes, you can only fall back on the notorious “sound feeling” and you will get lost in the void, because its limits are not fixed, but shift according to the political wish.
Here you can point to the fact that Germany’s unrestrained U-boat war during the First World War was then pilloried as a crime against humanity and caused America to enter the war. During World War II, however, the same manner of warfare was used by the USA against Japan; this was cleared up before the International Military Tribunal by an affidavit of Admiral Nimitz.[136]
The answer to the question as to what the crime against humanity itself consists of can only be given from the examples of the statute and can be supported by the interpretation which the International Military Tribunal has given. According to this the crime against humanity is the aggravation of a war crime or a crime against peace. It differs from these crimes by its dimension, its system, and the manner of execution. This can be deduced from the wording of the text of the statute where as typical examples are quoted: “extirpation, enslavement, deportation”.
In cases of crimes against humanity, according to this, actions must be in question which are punishable in themselves already, but in addition to this go further and are extended, so that they are “qualified” crimes. The dimension of the crimes is confirmed by the wording of the Russian text, which does not mention “homicide” but “homicides” in the plural, and not “persecution” but “persecutions” in the plural. The Russian text of Law No. 10 is worded similarly.
This opinion is confirmed in two places by the decision of the International Military Tribunal. The question of crimes against humanity is specially dealt with there in the section “War Crimes and Crimes against Humanity”,[137] and in the section “The Law Relating to War Crimes and Crimes against Humanity”.[138] Here the actions which are pronounced as crimes against humanity are characterized as perpetrated “on a large scale” and as “methodically” and “systematically” executed. They are called “terror politics” and are called “terrible and brutal” as well as “utterly ruthless”, “deterrent and horrible”. Not isolated murder nor isolated imprisonment nor the isolated boycotting of a Jew is meant, but only a general measure which violates “the most elementary laws of humanity”.
These are not actions which an individual can execute alone; he needs organized help for that. Therefore the perpetrator can only be a commander; he who obeys is his tool and can only become a punishable assistant. Here the individual does not act from his own criminal motive, but he acts according to order and higher instruction. Therefore the motive of the action is basically political. Above all, the Hague Convention had in mind common crimes of individuals, which are rejected by the states themselves and which they themselves prosecute by penal law in the interest of humanity. For this purpose the states had issued corresponding national laws.
In the development of this idea, it is from now on a question of preventing political measures, which are methodically carried through by the state, by international penal law, i. e., measures which are rejected by the International Military Tribunal as “barbaric methods” and as “methods for breaking every resistance.”
The rejection of such methods as crimes against humanity was expressed for the first time in the Hague Convention [Annex] in Article 22, according to which the belligerent nations have no unlimited right in the choice of means for doing damage to the enemy. Now the perpetrators of these actions are to be punishable.
Which means are still permitted in battle, however, and which methods are still admissible, can only be gathered from the practice of the states. If you look for an independent measuring rod for humanity, you must establish that things seem still admissible which force us to stop a moment. The destruction of hundreds of thousands of inhabitants of an unprotected city by bomb carpets and the use of the atomic bomb makes a discussion rather senseless, as humanity did not object to these horrors, which in future will even be surpassed.
This measuring rod must not be forgotten if you proceed to the judgment of the crimes against humanity of which people are accused here. If such monstrosities are deemed admissible on one side, while similar actions on the part of the enemy are condemned, the judgment of humanity can only depend on the approval or disapproval of the purpose and aim, and thereby loses the name of justice.
The firm ground on which the punishable crime against humanity rests, can only be the proved war crime or a definite crime against peace.
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[119] Trial of the Major War Criminals, vol. I, pp. 253-255, Nuremberg, 1947.
[120] Ibid., p. 254.
[121] Closing statement is recorded in mimeographed transcript, 14 July 1947, pp. 10718-10796.
[122] Trial of the Major War Criminals, vol. I, p. 218, Nuremberg, 1947.
[123] Control Council Law No. 10, Article III, par. 1(d) and 2, Military Government Ordinance No. 7, Article II.
[124] Trial of the Major War Criminals, vol. I, p. 218, Nuremberg, 1947.
[125] Ibid., pp. 231, 247, 252, 254, 301.
[126] Ibid., pp. 174, 253.
[127] Ibid., pp. 254, 255.
[128] Ibid.
[129] United States vs. Friedrich Flick, et al. See Vol. VI.
[130] Trial of the Major War Criminals, vol. I, p. 254, Nuremberg, 1947.
[131] Lecture of Professor Donnedieu de Vabres, Association des Etudes Internationales “Le Procès de Nuremberg.” Library of the International Military Tribunal XII 259.
[132] Translation of Protocol in this brief differed from original English copy. Authentic English version has been inserted here.
[133] Compare literature of the Soviet Union. (Karl Brandt 188 [not introduced in evidence].)
1. History of the all-Soviet Communist Party (Bolshevists). Under the editorial management of the commission of the Central Committee of the Communist Party 1938 (Bolshevists) approved by the Central Committee of the Communist Party OGIS State Publishing Office for Political Literature 1945, chapter 8:
“The party of the Bolshevists during foreign military intervention and the Civil War 1918-1920, page 215.
2. “Intervention,” play in 4 acts by Salawin [Slavin] 1940, Moskau [Moscow]-Leningrad (Karl Brandt 127 [not introduced in evidence]).
[134] Defendant before International Military Tribunal. See Trial of the Major War Criminals, Vols. I-XLII, Nuremberg, 1947.
[135] United States vs. Friedrich Flick, et al. See Vol. VI.
[136] Trial of the Major War Criminals, vol. XVII, pp. 377-381, Nuremberg, 1948.
[137] Ibid., vol. I, pp. 226-228.
[138] Ibid., vol. I, pp. 253-255.
B. Responsibility of Superiors for Acts of Subordinates
a. Introduction
Defendants who were in high positions in the German medical service rejected responsibility for the alleged criminal conduct of their subordinates. The prosecution argued that it “would be an unforgivable miscarriage of justice to punish the doctors who worked on the victims in the concentration camps while their superiors, the leaders, instigators, and organizers go free.” The prosecution, for example, argued that Karl Brandt held supreme authority over all medical services in Germany, both military and civilian; that Handloser was the Chief of the Medical Services in the Wehrmacht; that Rostock was Karl Brandt’s deputy charged with the task of “centrally coordinating and directing the problems and activities of the entire medical and health service” in the field of science and research; that Schroeder was the Chief of the Medical Service of the Luftwaffe; that Genzken was the Chief of the Medical Service of the Waffen SS; that Blome was the Deputy Reich Health Leader; and that these men were clearly responsible for the acts of their subordinates in their respective sectors.
The prosecution’s summation of evidence on this question has been taken from the closing statement which appears below on pages 926 to 936. Extracts from the final pleas for the defendants Karl Brandt, Schroeder, Rostock, and the closing briefs for Handloser, Genzken, and Blome appear on pages 936 to 957.
b. Selection from the Argumentation of the Prosecution
EXTRACT FROM THE CLOSING STATEMENT OF THE PROSECUTION[139]
* * * * *
The Responsible Leaders of the Medical Services
In view of the clear and overwhelming proof, it can only be concluded that the practice of experimentation on concentration camp inmates without their consent was an organized and systematic program. It is, therefore, appropriate to consider whether we have in this dock the leaders of the German medical services without whom these crimes would not have been possible. It would be an unforgivable miscarriage of justice to punish the doctors who worked on the victims in the concentration camps while their superiors, the leaders, organizers, and instigators go free. It has been established beyond controversy that these things could not have happened without cover from the top. Who, then, were these men on the top? Their survivors, with one exception, are all in this dock.
In the number one seat we have the defendant Karl Brandt. He held supreme authority over all the medical services in Germany, both military and civilian. He joined the Nazi Party in January 1932 and the SS in 1934, in which he rose to the rank of Gruppenfuehrer [Major General]. In the latter year, at the age of 30, he became the attending physician to Adolf Hitler and retained this position until 1945. His close personal relationship to the Fuehrer explains his rapid rise to power. On the day Poland was invaded in 1939, Hitler ordered Brandt and Philipp Bouhler, the Chief of the Chancellery of the Fuehrer, to carry out the so-called Euthanasia Program.
Aside from his personal influence and intimate connection with Hitler, Brandt’s greatest power in the medical services came from his position as General Commissioner and later Reich Commissioner of the Health and Medical Services. As a result of the disastrous winter campaign in the East in 1941, Hitler established for the first time a medical and health official under his direct control by decree of 28 July 1942. This decree made Brandt the supreme authority over all medical services in Germany. It stated in part as follows:
“I empower Professor Dr. Karl Brandt, subordinate only to me personally and receiving his instructions directly from me, to carry out special tasks and negotiations, to readjust the requirements for doctors, hospitals, medical supplies, etc., between the military and the civilian sectors of the Health and Medical Services.
My plenipotentiary for Health and Medical Services is to be kept informed about the fundamental events in the Medical Services of the Wehrmacht and in the Civilian Health Service. He is authorized to intervene in a responsible manner.” (NO-080, Pros. Ex. 5.)
By the same decree chiefs were also commissioned for the Medical Services of the Wehrmacht and the Civilian Health Service. The defendant Handloser became Chief of the Medical Services of the Wehrmacht, while Dr. Leonardo Conti, State Secretary for Health and the Reich Health Leader, was made Chief of the Civilian Health Services. Brandt was the superior of both Handloser and Conti, and through them had extensive powers over the Army, Navy, Luftwaffe, Waffen SS, and Civilian Medical Services. Brandt stood at the apex of power. He was subordinated to no one save the Fuehrer. He was the man to act for the Fuehrer in medical matters. The decree authorized Brandt “to intervene in a responsible manner” and directed that he be kept informed of “fundamental events”. Certainly nothing could be more fundamental than a policy of performing medical experiments involving the torture and death of involuntary human subjects.
On 5 September 1943 Hitler issued a second decree empowering Brandt “with centrally coordinating and directing the problems and activities of the entire medical and health services * * *”. (NO-081, Pros. Ex. 6.) The order expressly stated that Brandt’s authority covered the field of medical science and research. Shortly following the issuance of this decree, the defendant Rostock was appointed by Brandt as Chief of the Office for Science and Research, with plenary powers in that field.
Finally, on 25 August 1944, the Fuehrer elevated Brandt to Reich Commissioner for the Health and Medical Services and stated that in this capacity “his office ranks as highest Reich authority.” Brandt’s position was thus equivalent to that of a Reich Minister. He was authorized “to issue instructions to the offices and organizations of the State, Party, and Wehrmacht, which are concerned with the problems of the Medical and Health Services”. (NO-082, Pros. Ex. 7.) It is clear that this decree was issued to resolve a struggle for power between Brandt and Conti. Certainly the decree does no more than give Brandt a more august title and restate his powers, powers which he had already received as early as July 1942. Brandt testified that it merely “strengthened” his position. A service regulation issued by Keitel for Handloser, as Chief of the Medical Services of the Wehrmacht, at a time when Brandt was still General Commissioner, provided that Handloser was subject to the “general rules of the Fuehrer’s Commissioner General for the Medical and Health Services” and that Brandt had to be informed of the “basic events” in the field of the Medical Services of the Wehrmacht. In a pretrial affidavit the defendant Handloser stated that after he became Chief of the Medical Services of the Wehrmacht on 28 July 1942 “Brandt was my immediate superior in medical affairs.” (NO-443, Pros. Ex. 10.) Schroeder stated that “Karl Brandt, Handloser, and Rostock were informed of the medical research work conducted by the Luftwaffe.” (NO-449, Pros. Ex. 130.) In addition to his position as General and Reich Commissioner of the Health and Medical Services, Brandt was also a member of the Presidential Council of the Reich Research Council, an organization which gave financial support for criminal experiments.
In the number two seat is the defendant Handloser who held supreme power over the medical services of all branches of the Wehrmacht. Early in 1941 he was appointed Army Medical Inspector and Army Physician [Army Medical Chief (Heeresarzt)]. He held these positions until September 1944 and as such had complete command over the entire Army Medical Services which was by far the largest of the medical branches of the Wehrmacht. In his capacity as Army Medical Inspector, Handloser had subordinated to him the Consulting Physicians of the Army, the Military Medical Academy, the Typhus and Virus Institutes of the OKH at Krakow and Lemberg [Lvov], and the Medical School for Mountain Troops at St. Johann. He attained the rank of Generaloberstabsarzt, the highest military medical rank.
On 28 July 1942, Handloser was elevated to the newly created position of Chief of the Medical Services of the Wehrmacht. This was the same decree which appointed Brandt General Commissioner, to whom Handloser, on the military side, and Conti, on the civilian side, were subordinated. Handloser was charged with the coordination of the Medical Services of the Wehrmacht and all organizations and units subordinated or attached to the Wehrmacht, including the Medical Services of the Waffen SS. Prior to this decree there were four separate medical branches of the Wehrmacht, the Army, Luftwaffe, Navy, and Waffen SS, each operating independently of the other. Pursuant to this decree, Handloser was appointed to coordinate and unify their operations and was directly responsible to Keitel as Chief of the Supreme Command of the Wehrmacht (OKW). He had authority over the Chiefs of the Army, Navy, Luftwaffe, and Waffen SS Medical Services, and all organizations and services employed within the framework of the Wehrmacht, and over “all scientific medical institutes, academies, and other medical institutions of the services of the Wehrmacht and of the Waffen SS.” [Emphasis added.] (NO-227, Pros. Ex. 11.) He was the adviser of the Chief of the Supreme Command and of the Wehrmacht in all questions concerning the medical services of the Wehrmacht and of its health guidance. In the field of medical science, his duties were to carry out uniform measures in the field of health guidance, research and combating of epidemics, and all medical matters which required a uniform ruling among the Wehrmacht, and further, in the evaluation of medical experiences.
One of the principal means used by the defendant Handloser in coordinating scientific research was the joint meeting of consulting physicians of the four branches of the Wehrmacht. At the Second Meeting East of Consulting Physicians in December 1942 at the Military Medical Academy, Handloser himself pointed out quite clearly the task of the Chief of the Medical Services of the Wehrmacht in unifying medical scientific research. In addressing the full meeting he said:
“The demands and extent of this total war, as well as the relationship between needs and availability of personnel and material, require measures, also in military and medical fields, which will serve the unification and unified leadership. It is not a question of ‘marching separately and battling together’, but marching and battling must be done in unison from the beginning in all fields.
“As a result, with respect to the military sector, the Wehrmacht Medical Service and with it the Chief of the Medical Services of the Wehrmacht came into being. Not only in matters of personnel and material—even as far as this is possible in view of special fields and special tasks which must be considered—but also with a view to medical scientific education and research, our path in the Wehrmacht Medical Service must and will be a unified one. Accordingly, the group of participants in this Second Work Conference East, which I have now opened, is differently composed from the First Work Conference in May of this year. Then it was a conference of the army; today the three branches of the Wehrmacht, the Waffen SS and Police, the Labor Service and the Organization Todt are participating and unified.
“You will surely permit that I greet you with a general welcome and with the sincere wish that our common work may be blessed with the hoped for joint success.
“I would, however, like to extend a special greeting to the Reich Chief of Health Services, Under Secretary Conti, who holds the central leadership of medical services in the civilian sector. I see in his presence not only an interest in our work themes, but the expression of his connection with the Wehrmacht Medical Service and his understanding of the special importance of the Wehrmacht in the field as well as at home. I need not emphasize that we are as one in the recognition of the necessity to assure and ease the mind of the soldier, that he need not worry about the physical well-being of the homeland as far as this is within the realm of possibility in wartime.” (NO-922, Pros. Ex. 435.)
Again, at the Fourth Meeting of Consulting Physicians in May 1944 the defendant Karl Brandt stressed the importance of Handloser’s position, saying—
“Generaloberstabsarzt Handloser, you, a soldier and a physician at the same time, are responsible for the use and the performance of our medical officers.
* * * * *
“I believe, and this probably is the sole expectation of all concerned, that this meeting which today starts in Hohenlychen will be held for the benefit of our soldiers. The achievements to date of your physicians, Herr Generaloberstabsarzt, confirm this unequivocally, and their readiness to do their share makes all of us proud and—I may also say—confident.
* * * * *
“It is good simply to call these things by their names and to look at them as they are. This meeting is the visible expression of it—it is, it shall be, and it must be so in every respect; the consulting physicians are gathered around their medical chief. When I look at these ranks, you Generaloberstabsarzt Handloser, are to be envied; medical experts, with the best and most highly trained special knowledge, are at your disposal for care of the soldiers. In reciprocal action between yourself and your medical officers, the problem of our medical knowledge and capacity are kept alive.” (NO-924, Pros. Ex. 437.)
This was no accolade paid to a man without power and influence. If Handloser is not responsible for the crimes committed by the medical services of the Wehrmacht, and especially of the Army and Luftwaffe, then no one is responsible.
In the number three seat we have the defendant Rostock who, as Brandt’s special deputy, was charged with the task of “centrally coordinating and directing the problems and activities of the entire Medical and Health Services” in the field of science and research. Even prior to his appointment to that position in the fall of 1943, Rostock was one of the responsible leaders of the German medical profession. In 1942 he was appointed Dean of the Medical Faculty of the University of Berlin. In the same year he became consulting surgeon to Handloser as the Army Medical Inspector. He attained the rank of Generalarzt. As Chief of the Office for Science and Research under Brandt, it was Rostock’s task to coordinate scientific research in Germany. He received reports as to the issuance of research assignments by the various agencies in Germany and determined which of such assignments should be considered “urgent”. He also served as Brandt’s alternate on the Reich Research Council.
In the number four seat we have the defendant Schroeder, who from 1 January 1944 until the end was the Chief of the Medical Service of the Luftwaffe. From 1935 until February 1940 Schroeder was Chief of Staff to his predecessor, Erich Hippke as Luftwaffe Medical Inspector. From February 1940 until January 1944 he served as Air Fleet Physician of Air Fleet 2, when he replaced Hippke as Chief of the Medical Service of the Luftwaffe. Simultaneously he was promoted to the rank of Generaloberstabsarzt. As Chief of the Medical Service of the Luftwaffe, all medical officers of the German Air Force were subordinated to him. His position and responsibility are clear and unequivocal.
In seat number five is the defendant Genzken, who, as Chief of the Medical Service of the Waffen SS, was one of the highest ranking medical officers in the SS. He joined the Nazi Party in 1926 and in 1936 he went on active duty with the SS in the Medical Office of the SS Special Service [disposal] Troops [SS Verfuegungstruppe], which subsequently became the Waffen SS. In the spring of 1937 the Medical Office of the SS was enlarged and split into two departments. Genzken was made director of the department charged with the supply of medical equipment to and the supervision of medical personnel in the concentration camps. In this capacity he was the medical adviser to the notorious Eicke, predecessor of Pohl as the commander of all concentration camps. Sachsenhausen, Dachau, Buchenwald, Mauthausen, Flossenbuerg, and Neuengamme, among others, were under the medical supervision of Genzken. Few men could have been better advised as to the systematic oppression and persecution of the hapless prisoners of these institutions.
In May 1940, Genzken became Chief of the Medical Office of the Waffen SS in the SS Operational Headquarters, with the rank of Oberfuehrer. The SS Operational Headquarters was subordinated to Gruppenfuehrer Hans Juettner and was one of the twelve main offices of the Supreme Command of the SS. While Juettner was Genzken’s military superior, his technical or medical superior was Reichsarzt SS Grawitz for whom he served as deputy on many occasions. In 1942 his position became known as Chief of the Medical Service of the Waffen SS, Division D of the SS Operational Headquarters. He attained the rank of Gruppenfuehrer in the SS and Generalleutnant of the Waffen SS [major general]. Among the offices subordinated to Genzken was that of the Chemical and Pharmaceutical Service under Blumenreuter and Hygiene under the defendant Mrugowsky. Mrugowsky was attached to Genzken’s office as a hygienist in 1940 and was at the same time Chief of the Hygiene Institute of the Waffen SS which, in turn, was subordinated to Genzken. On 1 September 1943, the Medical Service of the SS was reorganized and, among other things, Blumenreuter, Mrugowsky, and the Hygiene Institute of the Waffen SS were transferred to the Office of the Reichsarzt SS, Grawitz. Thereafter the direct subordination was to Grawitz rather than to Genzken.
And then there is the defendant Blome, Gruppenfuehrer [Major General] in the SA, Deputy Reich Health Leader, Deputy Leader of the Reich Chamber of Physicians and the National Socialist Physicians Association, Representative for the Department of Medical Study, Plenipotentiary in the Reich Research Council, and Chief of Research on Bacteriological Warfare. As the closest associate of Conti, he cannot be omitted from the list of the powerful. Conti was the highest authority in the field of civilian health administration. The decree of 28 July 1942, signed by Hitler, concerning the reorganization of the medical services, defines the position of Conti as follows:
“In the field of civilian health administration the State Secretary in the Ministry of Interior, and the Chief of the Health Administration of the Reich [Reichsgesundheitsfuehrer], Dr. Conti, is responsible for coordinated measures. For this purpose he has at his disposal the competent departments of the highest Reich authorities and their subordinate offices.” (NO-080, Pros. Ex. 5.)
There was not a single medical question which did not reach the Reich Health Department of the Nazi Party and the Reich Chamber of Physicians, subordinated to which were all physicians in Germany, with the exception of those on active Service with the armed forces and in the SS. As a member of the Reich Research Council, Blome was personally connected with plans and enterprises involving criminal medical experimentation.
These were the responsible leaders of the medical services of Germany. Who, then, is missing from this illustrious gathering? During the course of the trial, we have frequently heard mentioned the names of Conti and Grawitz. Indeed, the defendants would have us believe that in these two men, together with Hitler and Himmler, resided the exclusive responsibility for the manifold crimes with which we are here concerned. I hardly need call attention to the fact that all are dead. All of them took their own lives rather than face the bar of justice. No one can deny that those men were, indeed, guilty. But this in no way serves to exonerate these defendants, who all played important roles in the mad scheme. It is a curious thing that not one of the defendants has pointed an accusing finger at a living man. If they are to be believed, all the guilty parties to these crimes are dead. According to them, justice must seek retribution only from the cadavers. The Luftwaffe defendants have been strangely silent as to Hippke, who, but for a belated capture, would have a prominent seat in the dock. Those defendants who worked with the dead criminals—such as Gebhardt, Mrugowsky, and Poppendick with Grawitz, and Blome with Conti—ask the Tribunal to say that their association was honorable and pure, that their work was in another field, that their masters’ crimes come as a great surprise and were never known to them. The evidence proves, however, that they not only knew of and supported these crimes, but also took a personal part in them.
In connection with the responsible positions of these defendants and most particularly of Karl Brandt and his assistant Rostock, Handloser, Schroeder, Genzken, and Blome, I wish to call the Tribunal’s attention to the decision of the Supreme Court of the United States in the case of In re Yamashita.[140] On 25 September 1945, Yamashita, the Commanding General of the Fourteenth Army Group of the Imperial Japanese Army in the Philippine Islands was charged with violation of the laws of war.[141] He thereafter pleaded not guilty, was tried, found guilty as charged, and sentenced to death by hanging. A petition for a writ of habeas corpus was filed with the Supreme Court purporting to show that Yamashita’s detention was unlawful for the reason, among others, that the charge preferred against him failed to charge him with a violation of the laws of war.
The charge stated that Yamashita, between 9 October 1944 and 2 September 1945, in the Philippine Islands, “while commander of armed forces of Japan at war with the United States of America and its Allies, unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities and other high crimes against people of the United States and of its Allies and dependencies, particularly the Philippines; and he * * * thereby violated the laws of war.” The military commission[142] which tried Yamashita found that atrocities and other high crimes had been committed by members of the Japanese Armed Forces under his command, that they were not sporadic in nature but in many cases were methodically supervised by Japanese officers, and that during the period in question Yamashita failed to provide effective control of his troops as was required by the circumstances. The Supreme Court stated the question for their decision in the following language:
“It is not denied that such acts directed against the civilian population of an occupied country and against prisoners of war are recognized in international law as violations of the law of war * * *. But it is urged that the charge does not allege that petitioner has either committed or directed the commission of such acts, and consequently that no violation is charged against him. But this overlooks the fact that the gist of the charge is an unlawful breach of duty by the petitioner as an army commander to control the operations of the members of his command by ‘permitting them to commit’ the extensive and widespread atrocities specified. The question then is whether the law of war imposes on an army commander a duty to take such appropriate measures as are within his power to control the troops under his command for the prevention of the specified acts which are violations of the law of war and which are likely to attend the occupation of hostile territory by an uncontrolled soldiery, and whether he may be charged with personal responsibility for his failure to take such measures when violations result.”
The Court held that the charge was sufficient and that the law of war “plainly imposed on petitioner, who at the time specified was military governor of the Philippines, as well as commander of the Japanese forces, an affirmative duty to take such measures as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian population. This duty of a commanding officer has heretofore been recognized, and its breach penalized by our own military tribunals.”
This decision is squarely in point as to the criminal responsibility of those defendants in this dock who had the power and authority to control the agents through whom these crimes were committed. It is not incumbent upon the prosecution to show that this or that defendant was familiar with all of the details of all of these experiments. Indeed, in the Yamashita case, there was no charge or proof that he had knowledge of the crimes. In the case before the International Military Tribunal, proof was submitted that the Reichsbank, of which the defendant Funk was president, had received from the SS the personal belongings of victims who had been exterminated in concentration camps. In that connection the Tribunal said in its judgment:
“Funk has protested that he did not know that the Reichsbank was receiving articles of this kind. The Tribunal is of the opinion that he either knew what was being received or was deliberately closing his eyes to what was being done.”[143]
But we need not discuss the requirement of knowledge on the facts of this case. It has been repeatedly proved that those responsible leaders of the German medical services in this dock not only knew of the systematic and criminal use of concentration camp inmates for murderous medical experiments, but also actively participated in such crimes. Can it be held that Karl Brandt had no knowledge of these crimes when he personally initiated the jaundice experiments by Dohmen in the Sachsenhausen concentration camp and the phosgene experiments of Bickenbach? Can it be found that he knew nothing of the criminal Euthanasia Program when he was charged by Hitler with its execution? Can it be said that Handloser had no knowledge when he participated in the conference of 29 December 1941 where it was decided to perform the Buchenwald typhus crimes, when reports were given on criminal experiments at meetings called and presided over by him? Was Rostock an island of ignorance when he arranged the program for and presided over the meetings at which Gebhardt and Fischer lectured on their sulfanilamide experiments, when he classified as “urgent” the criminal research of Hirt, Haagen, and Bickenbach? Did Schroeder lack knowledge when he personally requested Himmler to supply him with inmates for the sea-water experiments? Can it be found that Genzken had no knowledge of these crimes when the miserable Dr. Ding was subordinated to and received orders from him in connection with the typhus experiments in Buchenwald, when his office supplied Rascher with equipment for the freezing experiments? Was Blome insufficiently informed in the face of proof that he collaborated with Rascher in the blood coagulation experiments, issued a research assignment to him on freezing experiments and to Hirt on the gas experiments, as well as performed bacteriological warfare and poison experiments himself?
No, it was not lack of information as to the criminal program which explains the culpable failure of these men to destroy this Frankenstein’s monster. Nor was it lack of power. Can anyone doubt that Karl Brandt could have issued instructions to Handloser and Conti that doctors subordinated to them were not to experiment on concentration camp inmates? It is no excuse to say that Hitler and Himmler approved the policy and that his efforts may have failed. Certainly they approved it. But the fact is that Brandt also approved of and personally participated in the program. He was the “highest Reich authority” in the medical services, not Himmler. The medical services were Brandt’s primary function, while Himmler had a few other tasks to keep him busy, such as running the SS, the Ministry of Interior, the German Police, and the Home Army, to mention a few.
Nothing could have been easier for Handloser than to issue a general directive that officers of the Medical Services of the Wehrmacht were to keep out of concentration camps. If he could not have done so, then we must conclude that no one could have. Handloser had no peer in the military medical services. And what Handloser could have done for all the branches of the Wehrmacht, Schroeder, Genzken, and Blome could have done with respect to the Luftwaffe, the Waffen SS, and the Reich Health Department.
The conclusion is inescapable that the crimes of these responsible leaders is a hundredfold greater than that of the wretches who executed the murderous experiments in the concentration camps. Theirs was the power, the opportunity, and the duty to control and their failure is their everlasting guilt.
c. Selections from the Argumentation of the Defense
_EXTRACTS FROM THE FINAL PLEA FOR DEFENDANT KARL BRANDT_[144]
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To what extent is the defendant Karl Brandt implicated in the medical experiments?
The prosecution says he is implicated in almost all of them and refers to his position and his connections. They state that he was the highest Reich authority in the medical sphere; there, however, they are misled by an error of the translator, for Karl Brandt only had the powers, regulated in a general way, of an “Oberste Reichsbehoerde” [highest Reich agency], but the execution of these powers was restricted to special cases.
This appears from the three known decrees and from the explanation thereof given by the witnesses. Moreover Karl Brandt was not given these functions until 1944, when these experiments were practically finished, as is shown by the time schedule submitted to the Tribunal for comparison.
It has been proved that the defendant Karl Brandt himself in a broadcast publicly called his position as Reich Commissioner that of a “differential” (coordinator). In fact, Karl Brandt’s task was not to order but to adjust; it was a task designed to fit his character.
We have also learned from the presentation of evidence that the defendant Karl Brandt did not have the machinery at his disposal for issuing orders which was necessary for a supreme Reich authority; he lacked the staff and the means. No one who is acquainted with a government administration will think it possible under these circumstances that the defendant Karl Brandt might have been able to enforce his point of view against the resistance of the old agencies; no one will even think it probable that anything would have been done to facilitate such an attempt of the “new master.”
Consequently, Karl Brandt’s position was not such as to justify the conclusion drawn by the prosecution about his general knowledge. There was no official channel by which everything had to come to his knowledge, for he was not the superior of other authorities.
It is true that the defendant Karl Brandt was supposed to be informed about fundamental matters, that he had the right to intervene, etc. But these were only possibilities, not in conformity with conditions in practice. We have seen that Conti opposed him and that Himmler prohibited direct contact with Karl Brandt within his sphere.
Therefore, Karl Brandt can be brought into connection only with the events in which he participated directly.
Here it is striking first of all that the defendant Karl Brandt, who is supposed to have been the highest authority, appears only very rarely.
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Now the prosecution endeavors to establish a connection of Karl Brandt with the other experiments via the Reich Research Council. It is true that one can establish such a connection theoretically on paper, but the links of the chain break when one examines them closely. Only the head of the specialized department [Fachspartenleiter] judged the so-called research assignments, and he only investigated whether the aim was necessary for war, not how the experiment was to be carried out. He could not inform others of matters which he did not get to know himself.
The defendant Karl Brandt is charged further with not having protested in one case when he heard about deaths caused by experiments on persons sentenced to capital punishment in the well-known lecture on sulfanilamide. I must point out that even if this experiment had been inadmissible, silence would not be a crime for assent after the act is without importance in criminal law and one can be connected with plans and enterprises only as long as they have not come to an end.
Now the prosecution has introduced in its closing brief the new charge by which it holds the defendant Karl Brandt responsible for negligence. In this respect I should like to point out that no indictment for negligence has been brought in and that the concept of a crime against humanity committed by negligence cannot exist.
It will, therefore, be sufficient to emphasize that the alleged negligence depends on the existence of an obligation of supervision and the right to give orders through other agencies. In every state the spheres of competency are separated and it is not possible for everyone to interfere in everything because everyone is responsible for everything.
The prosecution says that the defendant Karl Brandt ought to have used his influence and have availed himself of his intimate relationship to Hitler to stop the experiments. Even presuming that he was aware of the facts as crimes, his guilt would not be of a legal but only of a political or moral nature.
Till now nobody has been held criminally responsible for the conduct of a superior or a friend; however, the Tribunal only has to consider the question of criminal law.
But in fact these close relations did not exist; the defendant Karl Brandt was the surgeon who had to be in attendance on Hitler; Dr. Morell, the latter’s personal physician, soon tried to undermine the confidence placed in Karl Brandt so that he was charged with commissions which removed him farther and farther from the sphere of his medical activity.
The alleged intimate relations were eventually crowned by the dictation of a death sentence against Karl Brandt without his having been granted even a consultation on the charges advanced against him.
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EXTRACTS FROM THE FINAL PLEA FOR DEFENDANT SCHROEDER[145]
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Your Honors, a clear distinction must be made between the periods when Professor Schroeder was not yet Chief of the Medical Service of the Luftwaffe and the time when he held that office. We are concerned here with the period from the beginning of 1940 to the end of 1943. During that period Professor Dr. Schroeder was the leading medical officer of Airfleet 2, and as such continually on service outside Germany. It was only from 1 January 1944 onwards that he held the position of Chief of Medical Service of the Luftwaffe.
This shows clearly that Professor Dr. Schroeder cannot be held responsible for all experiments in concentration camps which were carried out prior to 1 January 1944. His sphere of duties was confined to the medical care of the airfleet units under him and he was without any official points of contact with the Medical Inspectorate unless the latter was competent for his position as an airfleet doctor.
To give a picture of Professor Schroeder’s duties at that time, I draw attention to the fact that the personnel strength of Airfleet 2 amounted to 200,000 to 300,000 men.
When dealing with Professor Schroeder’s responsibility for the high-altitude experiments in Dachau, the prosecution had overlooked the fact that at the time in question, Professor Schroeder was airfleet doctor and maintained that during that time he was, after Professor Dr. Hippke, the Medical Chief, the second highest medical officer of the Luftwaffe. From that circumstance, the prosecution draws the inference that Professor Schroeder, as the second highest medical officer, was the obvious deputy for Hippke and, therefore, had to know about the most important events concerning the Medical Inspectorate.
The defendant Professor Schroeder has in his defense proved beyond doubt that he was not the most senior medical officer after Hippke and, therefore, not Hippke’s deputy. As Generalarzt and Generalstabsarzt he simply had the rank next to that of the Medical Chief, as did the other five airfleet doctors. Above him in rank were two Generalstabsaerzte, namely Generalstabsarzt Dr. Neumueller and Dr. Blaul. The former had his office in Berlin and was in fact Hippke’s deputy if and when necessary.
Professor Dr. Schroeder has also refuted the further assumption of the prosecution that his relations with Professor Dr. Hippke had been particularly close, for which reason Hippke had informed him about the high-altitude experiments. In particular the witness Dr. Augustinick, Schroeder’s personal adjutant during his service as an airfleet doctor, confirmed that relations between Hippke and Schroeder were extremely tense and unpleasant and that they confined themselves to discussing only the necessary things on the occasion of their highly infrequent official meetings.
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Your Honors, if one surveys the conduct of Professor Schroeder during the entire period from 1940 until the end of the war, one will not be able to find one single piece of evidence to show that Professor Schroeder at any time or in any manner violated the duties which the calling of a physician or medical ethics prescribed for him. In no instance did he act in a manner which could not stand examination by a court. One may well claim that he never disregarded the maxim of Hippocrates “primum nil nocere,” but preserved it as a guiding principle of his actions as a doctor and officer of the medical services of the German Luftwaffe.
The prosecution has failed to prove that Schroeder ever ordered such an experiment during the period of time covered by the charges of the prosecution, or that he participated or had knowledge of any such experiment. It has not even been proved that it was possible or necessary for him to gain knowledge of such experiments. Professor Schroeder has clearly explained why he could not gain such knowledge. For the whole period of time from 1942 to the end of 1943 the responsibility must rest on Professor Hippke, but not on Professor Schroeder.
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_EXTRACTS FROM THE FINAL PLEA FOR DEFENDANT ROSTOCK_[146]
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In the opening statement General Taylor said that the Reich Commissioner for the Medical and Health System was to be regarded as the supreme Reich authority. (Tr. p. 19.) The emphasis on this word is confusing and contradicts the authentic Document NO-082, Prosecution Exhibit 7 which states, “In this capacity his agency is a supreme Reich authority.” In this decree, then, the word “the” is missing. But this is most essential. For the decree signifies that it is one of many “supreme Reich authorities,” whereas the type of expression chosen by General Taylor must lead one to conclude that it was the only “supreme Reich authority” in the Department of Health. But, as the evidence has shown, this was not true. In his opening statement on 9 December 1946 (Tr. p. 19) General Taylor said: “Rostock’s position comprised the activities of the medical societies, the medical universities, and the Reich Research Council.”
During this trial none of the numerous German medical societies, with the exception of Ahnenerbe, have been attacked. I want to point out here that, first of all, the Ahnenerbe cannot be considered as a medical society, as is proved beyond doubt by the plan of organization submitted to this Tribunal. (Sievers 2, Sievers Ex. 4; Sievers 3, Sievers Ex. 6.) And let me point out that Rostock testified (Tr. p. 3296) that during the war he did not know this society or even its name, and that on 11 April 1947 the witness Sievers stated (Tr. p. 5788) that Ahnenerbe’s medical institutes for scientific research of military value were not subordinate to the Commissioner General for the Medical and Health System, that means, were not subordinate to the office directed by Rostock.
Neither were the medical universities subject to his supervision. They were subordinate to the Reich Ministry of Education.
I shall deal with the Reich Research Council later on. First, I would like to deal with the Office for Science and Research. As far as the incorporation into the German state machinery of the Office of the Commissioner General or the Reich Commissioner for the Medical and Health Services is concerned, I refer to Dr. Servatius’ statements.
Without a doubt, the prosecution has gained the wrong impression of the extent, actual activity, and influence on other agencies of the Office for Science and Research.
Rostock has dealt with this question in detail during direct examination. The Tribunal will certainly still have a recollection of his statement. Rostock actually had no supervisory authority over research work of the branches of the Wehrmacht and the SS.
Brandt’s, and thus also Rostock’s, commission did not comprise all medical affairs but only special tasks as was testified quite clearly here by the witness Lammers on 7 February 1947. (Tr. p. 2667.) And the assignment given Rostock did not include supervision of practical research. (Tr. p. 2449.) On 23 April 1947 Professor Rose quite correctly described the situation in Germany (Tr. p. 6300) when he said that the central planning of medical research in Germany is a phantom born 1½ years after the end of the war. True, attempts were made to correct the impossible situation created by the lack of a central direction of science in Germany. Attempts were made but the leading German politicians recognized the importance of science too late.
Germany did not have an institution with the competency and the financial means of the American “Office of Scientific Research and Development” under Dr. Vannevar Bush which, under the direction of the same man, was taken over into the United States’ peace organization under the name of “Joint Research and Development Board.” The relationship of Rostock’s agency to the SS must be discussed briefly, for all experiments which play a part in these proceedings were, after all, carried out in concentration camps which came under the jurisdiction of the SS. Rostock himself was never a member of the SS. Apart from that, he had no other relations of any kind with the SS. When the agency of the Commissioner General for the Medical and Health System was created, Hitler, in the presence of Himmler, made it quite clear to Karl Brandt that in his (Karl Brandt’s) capacity of Commissioner General the SS was not his affair. (Tr. p. 2324.) The practical execution of this directive has been expressly confirmed by Genzken. (Tr. p. 3780.) Furthermore, the decree of 25 August 1944 (NO-082, Pros. Ex. 7), which lists the agencies to which the Reich Commissioner for the Medical and Health System could give directives, does not mention the SS. Genzken also testified that no direct connections existed between Genzken’s and Brandt’s offices. According to the numerous affidavits submitted by Genzken (Genzken 1, Genzken Ex. 3; Genzken 9, Genzken Ex. 9; Genzken 6, Genzken Ex. 10; Genzken 8, Genzken Ex. 11; Genzken 3, Genzken Ex. 12; Genzken 5, Genzken Ex. 13; Genzken 16, Genzken Ex. 14; Genzken 17, Genzken Ex. 15; Genzken 15, Genzken Ex. 16) only Grawitz was competent for scientific research within the SS. Genzken also testified that Rostock never gave instructions in research affairs to the SS. (Tr. p. 3780.)
Gebhardt testified on 4 March that Grawitz was never subordinate to Karl Brandt and that Brandt never even had the right to give directives to Grawitz. (Tr. p. 3977.) He testified further that Himmler wanted to create a “science exclusively for the SS” and that the university people had resisted that attempt. However, Rostock must quite definitely be considered an exponent of university scientists. The proof for the correctness of Himmler’s intention of a “science exclusively for the SS” is contained in a letter, dated 22 September 1942, from SS Gruppenfuehrer Berger to the Reich Leader SS. (Karl Brandt 120, Karl Brandt Ex. 35.)
When in the instruction of 15 May 1944 (NO-919, Pros. Ex. 460) Himmler fixed the formalities for the carrying out of experiments on prisoners, it was natural that the names of Rostock or Karl Brandt were not mentioned in it. This instruction was not sent to Karl Brandt even for information purposes as is revealed by the document itself. This should be sufficient proof that Rostock had no influence on research activities within the SS or the concentration camps. During discussion of the individual experiments it has already been pointed out that he did not even know of them.
In regard to research commissions given to the medical chiefs of the Luftwaffe, Schroeder had claimed (NO-449, Pros. Ex. 130)—and during cross-examination he was again reproached for this document (Tr. p. 3695)—that all research assignments had to go through Rostock’s office. In his affidavit Schroeder testified that this was an erroneous description. (Rostock 11, Rostock Ex. 10.) In another interrogation on 27 February 1947 by Dr. Krauss (Tr. p. 3695) Schroeder expressly confirmed the correctness of this affidavit. For it had only been agreed that a carbon copy of the research commission given out would be sent to Rostock. His approval of the assignment of commissions was not required. The witness Wuerfler, too, confirmed this during his cross-examination by Dr. Krauss on 19 February 1947. (Tr. p. 3142.) And in his affidavit, Becker-Freyseng testified that the Luftwaffe did not commission Rostock’s office to carry out research by way of experiments on human beings. (Rostock 10, Rostock Ex. 9.)
During the hearing of evidence on 2 June 1947 in the case of Becker-Freyseng, it was discussed in detail how research commissions happened to come about, how reports were made on them and that the means by which results were obtained were not prescribed; and that a real control by the agency giving out the commissions was neither exercised nor possible. I refer to the transcript which contains significant testimony in this connection. (Tr. pp. 8317, 8320, 8321, 8324-8326.)
And now I would like to turn to the problems connected with the Reich Research Council. Here the prosecution has charged Rostock with responsibility because from the beginning of 1944 on he was Brandt’s deputy in his capacity as a member of the presiding council of this body. The fact itself is not, but the responsibility, especially in the sense of penal law or morals, must be denied. I deny the prosecution’s assertion, leading up to Mr. McHaney’s statement of 10 December 1946 (Tr. pp. 96 and 144), that Rostock exercised a “supervisory control” over the Reich Research Council or—on the occasion of submitting a letter from Rascher about freezing experiments (NO-432, Pros. Ex. 119)—that the “Reich Research Council as a whole is implicated in a criminal manner.”
The question of the Reich Research Council has been cleared up sufficiently during the examinations of Karl Brandt, Rostock, Blome, Sievers, as well as by the affidavits of the Chief of the Managing Committee of the Reich Research Council, Mentzel. (Rostock 13, Rostock Ex. 12; Sievers 42, Sievers Ex. 43.) As the crux emerges in this connection the fact that those responsible for the assignment of research commissions were, exclusively, the managers of the special sections and their authorized agents and plenipotentiaries who in turn were directly responsible to Hermann Goering.[147] Rostock was not among them. The members of the presiding board had no supervisory duty over and no right to issue directives to the managers of the special sections.
The members of the presiding board were informed about research carried out through the printed reports, the so-called “Red Booklets.” It can be assumed “that the prosecution is in possession of these booklets. The entire files of the Reich Research Council were handed over to the American authorities by Professor Osenberg and some documents from these files have been submitted during this trial.”
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If the “Red Booklets” contained a single paragraph which could be used to prove the prosecution’s claims, it can be assumed with certainty that these booklets would have been submitted here. But this was not done. From this the conclusion can be drawn with certainty that the members of the Presiding Council of the Reich Research Council did not receive any information about criminal experiments. And, as quoted before in this connection, Mr. McHaney himself admitted during the cross-examination of Rostock that he did not believe that, for example, Haagen informed the Reich Research Council about his experiments in the concentration camps.
Haagen made detailed statements on the coming into being of research commissions in general and, also in particular, on that of the commissions he gave out, and on the right and the duty of control held by the agency giving the commission. (Tr. pp. 9417-9419.)
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_EXTRACTS FROM THE CLOSING BRIEF FOR DEFENDANT HANDLOSER_
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It is the duty of the Inspector of the Army Medical Service, as Chief of the Army Medical Service, to insure within the scope of his official supervision that the intermediate superiors are able to perform their duties. He also has to see to it that the military information and report channels are well organized in order to guarantee the required survey of the whole complex and the reporting and immediate investigation of unusual individual cases. This requires the greatest possible care in the selection of the subordinate leading medical officers, as well as periodic inspections to be carried out by the officers selected.
Professor Handloser has submitted an affidavit to this Tribunal concerning the reporting systems pertaining to military medical matters of the Wermacht branches. (Handloser 65, Handloser Ex. 62.)
This document reveals the exemplary organization of the Message and Report Organization, including the sphere of the consulting expert physicians. The handling of the reports on “special occurrences” seems to me to be of special importance for the problem under discussion here. It was a standing order for the whole Wehrmacht that every office, including the offices of the medical service, had to report to the superior office immediately and by the quickest method each occurrence of each circumstance outside the bounds of normal events. (Handloser 65, Handloser Ex. 62.)
Professor Handloser as Inspector of the [Army] Medical Service and Surgeon General [Army Medical Chief (Heeresarzt)] was the Chief of the Medical Service for all fronts and the zone of the interior and was responsible to the Commander in Chief of the Army and to the Commander of the Replacement Army. The 26,500 medical officers of the army were subordinated to him. His field of office and the extent of his work were, therefore, extremely wide.
To handle such a large field of work properly—in Handloser’s case it also included the office of the Chief of Army Medical Service—a division of labor had to be made into time, space, and facts. The organization and the progress of work in the sphere of the Army Medical Inspector and the Chief of the Army Medical Service was explained by Professor Handloser in his affidavit. (Handloser 29, Handloser Ex. 4.) According to this the basic and most important questions were dealt with and decided upon in any case by Professor Handloser as the chief of the highest office. In this connection I refer to the testimony of Dr. Wuerfler (Tr. p. 3135) and affidavit of Schmidt-Bruecken. (Handloser 62, Handloser Ex. 58.) Special attention has to be paid here to incoming mail (messages, reports, letters). In the Handloser affidavit (Handloser 29, Handloser Ex. 4), the following is stated:
“All letters and packages, unless they were marked ‘secret’ or ‘top secret’ (Mil.) went to the registry. Here they were opened, the date stamp was affixed by the registrar who simultaneously marked the letter for delivery to the Chief of Staff, or to the various section chiefs direct. The Chief of Staff in turn marked those communications which were to be submitted to the medical chief with a cross in colored pencil.
“Secret and top secret (Mil.) material was handled in a special manner. This material was entered in a journal, and then directed to the attention of the Chief of Staff who in turn determined which documents were to be submitted to, or brought to the attention of, the medical inspector immediately or after they had been dealt with.”
This arrangement could be made without prejudicing a regular settlement since the authorities in question were under the command of specially qualified people (department chiefs) headed by the Chief of Staff who supervised the daily business routine and was responsible for all business matters.
With regard to Handloser it must be borne in mind that during the war he was very rarely present in the head office (Berlin). Owing to Handloser’s double function as an army doctor and Army Medical Chief, and furthermore as a result of the division of the Army Medical Inspectorate into two parts for the front and the zone of the interior, Handloser necessarily had to spend most of his time at army headquarters and at the front. He could only be present in Berlin for about one-tenth of the time. (Tr. p. 3135.) Furthermore, it became necessary to staff the offices at home with specially qualified medical officers since they had to act mainly on their own initiative in performing their tasks.
The Chief of Staff of the Army Medical Inspectorate, for instance, was a Generalarzt; the chiefs of the individual departments were Oberstaerzte. In order to do justice to the burden and the responsibility which Handloser had been shouldering, one must visualize the tasks and scope of work connected with the Medical Inspectorate. Owing to the war these tasks had been intensified to the utmost limits, there was the expansion of the theaters of operation and the personal problems of 26,500 medical officers. One will also realize that Handloser could only attend to the most important and the most basic problems.
The Chief of Staff and the departmental chiefs, as was their duty, determined which matters were of sufficient basic and vital importance to be referred for decision to the Army Medical Chief.
It must be considered most unlikely for the highest authority (i. e., the chief) of a large sphere of activity to have knowledge of all happenings within this sphere.
Furthermore, actual facts do not confirm that the person exercising the highest powers of command within the military hierarchy of the army is in some degree the originator of all orders executed by a subordinate in his hierarchy. If an order has been issued, one must determine who of all the supervising chiefs of the offices in this hierarchy is the originator responsible, under criminal law, for this order. If no special order was issued one must examine whether the incriminating behavior on the part of the defendant personally was prompted by circumstances within the scope of responsibility, under criminal law (such as orders and regulations which rendered possible the criminal behavior of a subordinate or appropriate consent to commit the criminal offense, before its initiation or its completion).
Only if the prosecution maintains and proves (a) that the behavior of a subordinate constitutes a punishable offense, and (b) that this action in particular was the result of an order issued by the superior, or of his consent given prior to the offense, can the defendant be charged as an abettor, offender, accomplice, or participator.
This exhausts all possible modes of behavior prior to the criminal offense. Whatever happened afterwards cannot have any relevant bearing on this legal evidence. This is impossible since all causality is lacking.
With regard to the question of a possible offense against the duties of a supervisor, the following must be said: According to Art. 147 of the German Military Penal Code “Whoever neglects to carry out the task incumbent upon him of supervising his subordinates either intentionally or through negligence” is liable to punishment. According to German theory and judicial practice, the application of this law presupposes the existence of a direct relationship between superior and subordinate.
If anything inadmissible or punishable happens in the sphere of duty this might be attributed to the fact that the supervising official neglected his duty, but it is also possible that it occurred through no fault of the supervising official. In the first instance the supervising official is liable to punishment according to Art. 147 of the Military Penal Code; this, however, does not apply in the latter case. The question only arises of whether in the former case the supervising official has to answer before criminal law for the action of his subordinate. This must be answered in the negative. An offense against the duties of service supervision constitutes in itself an offense. It does not automatically demand that the supervising official should be punished for the criminal offense committed by the subordinate, for according to the criminal laws of all civilized countries, a person can only be made responsible before criminal law for an offense committed by himself, i. e., if the supervising official can be considered an accomplice or participant in the crime of a subordinate. Only thus can the passage of count one, 3 of the indictment be understood. This provides for a responsibility before criminal law for others, “for whose actions the defendants are responsible.”
The prerequisites for this case have been set forth above.
* * * * *
The position of Professor Handloser as Chief of the Armed Forces Medical Service
* * * * *
The prosecution asserts that Handloser as Chief of the German Armed Forces Medical Service had the supreme supervision and command of the medical services of the three branches of the armed forces as well as of the Waffen SS. This is a fundamental error which is based on the incomprehensible statement of the chief prosecutor in his opening statement:
“Under the OKW came the High Commands of the three branches of the Wehrmacht—the Navy (OKM), the Army (OKH), and the Air Force (OKL).”
From the verdict of the IMT, I quote the following in regard to the Chief of the Supreme Command of the Armed Forces (OKW) who was the superior of the defendant Handloser:
“Keitel [as Chief of the Supreme Command of the Armed Forces] did not have command authority over the three Wehrmacht branches * * *.”[148]
From this the prosecution should have drawn the logical conclusion that, if the superior of Handloser, Keitel, had no powers of command over the three branches of the armed forces and their supreme commanders, then Professor Handloser, as his subordinate, also could have had no powers of command over the medical chiefs attached to the staff of the supreme commanders. The evidence has corroborated this. (Tr. pp. 2860-3, 3129-30, 3219, 3557.)
The prosecution refers for proof of the contrary only to the statement of the former Air Force Chief Hippke in another trial. According to that Hippke is supposed to have testified that Professor Handloser had been his professional superior. The incorrectness of this statement is proved by the opposing testimonies given under oath by Professor Dr. Schroeder who succeeded Hippke and of Generalarzt Dr. Hartleben (Tr. pp. 3219-20, 3225), as well as of Generalarzt Dr. Wuerfler (Tr. pp. 3129-30). The evidence submitted, combined with the contents of the decree of 1942, has shown that it was the duty of the Chief of the Armed Forces Medical Service to direct the adjustment of personnel and material affairs within the branch of the armed forces as is evidenced by the first sentence of the decree. Within the scope of this sphere of duties, Professor Handloser was charged with the combination or—as it was generally called—the coordination of all common problems in the field of the Armed Forces Medical Service. The task of coordination given Professor Handloser did not mean that thereby all common problems automatically came under his jurisdiction. It was rather his duty to examine which part of the immense medical service was suitable for coordination. Generalarzt Dr. Wuerfler has aptly called this a “program of future fields of endeavor”. In this connection see also Professor Schroeder (Tr. pp. 3557, 3558). Whenever Handloser thought that a certain department was suitable for coordination, he tried to reach an agreement with the medical chiefs of the branches of the armed forces; for since he had no powers of command, the coordination could only take place in conjunction with the medical chiefs. After coordination had been accomplished, he was empowered to issue “directives” in this field which did not have the character of an order. Hartleben replies to the question of my colleague Dr. Steinbauer:
“Directives give general guiding principles, an order must be carried out to the letter.”
Wuerfler expresses the same in the following manner:
“A superior has the authority to give orders. One can only speak of a right to issue directives where there exists no authority to give orders and no relationship of superiority.”
Research is a field which by its nature is unsuitable for coordination. For, while it is possible to alleviate personnel and material deficiencies in the personnel and material fields of the medical service by coordination, or in other words to achieve a practical useful effect, such is not the case with respect to research. The prosecution also questioned Professor Rostock regarding the problem of coordination in the field of research and argued that through such a coordination, that is to say, such a concentration of research activities which were carried on in various places, personnel and material could be allocated more effectively. Professor Rostock has made some remarks on this account which are of fundamental importance because they disprove the thesis of the prosecution with objectively convincing reasons. According to him, many conditions in the military and medical fields are suitable for coordination, while research cannot be coordinated. It is better for the aim in view when several scientists work on the same research subject, than if only one office were engaged in this activity. Professor Rostock says quite rightly:
“If someone were to say to me, give this matter all your attention, and the same thing is being worked on at this place and that, then, in all probability, I should have looked for reasons why it was necessary for both places to be doing the same thing.”
And again:
“I would regard it as an absolute mistake to say to one scientist: You are not allowed to work on that any longer, the other one is working on that * * *.” (Tr. p. 3352.)
Witness Hartleben, too, took the same point of view during cross-examination. (Tr. p. 3217.) To the question of the prosecutor:
“Would it not have been the task of the Chief of the Armed Forces Medical Service to coordinate the separate research activities in the same field in order to make the most advantageous use of available personnel and material”?
he replied:
“In my opinion the Chief of the Armed Forces Medical Services must in such a case make an investigation; because it is after all the case in science and research that very often it becomes necessary to pursue many different ways in order to arrive at some aspired goal, and the case may occur—and I can imagine it very well—where it is desirable to have several scientists engaged on the same problem * * *.”
Therewith Rostock confirms the defense argument of Handloser on this count. Summing up: The end aspired to by coordination—saving of personnel and material—is incompatible with the very nature of successful research. The order for the coordinating of personnel and material can, therefore, never be applied to the field of research.
Quite another thing is the creation of working groups within the same field of research. The purpose of the creation of such a working group was not to be a saving of personnel and material but mutual information and discussion in order to check how far the individual researchers had advanced by different routes.
Such a measure proposes to counteract the exaggerated secrecy and egotistical withholding of information often noticed in the field of research. Inventors and scholars regard their discoveries as revolutionary. As prototypes of individualism they are intent on keeping the details of their research secret even, or precisely, from other scholars who work in the same field. This fact is aptly characterized in the document submitted by the prosecution. (NO-262, Pros. Ex. 108.) I quote from this letter of the former Chief of the Air Force Medical Service, Dr. Hippke:
“The difficulties exist in quite another field. They are questions involving the vanity of the individual scientists, each and every one of whom wants to obtain all the results of the research individually, and who often can only be brought to altruistic cooperative work with the greatest difficulties.”
The Court will see from this that the creation of working groups in the field of hepatitis research in accordance with the suggestion of Dr. Schreiber at the Breslau Hepatitis Conference in June 1944 had nothing to do with coordination, but that it left the number and the activity of the different scholars engaged in hepatitis research untouched. The Chief of the Armed Forces Medical Service also had in his very limited office staff no department for research. (Tr. pp. 3218, 3224.) Only in the service regulations which became effective on 1 September 1944 (NO-227, Pros. Ex. 11), which however practically never went into effect. (Tr. p. 3140; Handloser 29, Handloser Ex. 4.) Under 14a one of the tasks of the Chief of the Armed Forces Medical Services was mentioned as being the taking of uniform measures in the field of medical science, including the field of research and the fight against disease. However, here, too, it was not a matter of the subordination of the research institutions of the branches of the armed forces but of examining a “problem” whether cooperative work in certain fields of research was feasible. Actually, due to developments since September 1944, coordination in the field of research never took place. The research activities of the different branches of the armed forces as well as of the Waffen SS were and remained independent. What is important in this trial in regard to Handloser’s responsibility is the question whether he as Chief of the Armed Forces Medical Services had any functions in the field of research and if so what they were. He himself has stated and Generalarzt Dr. Hartleben, who had an authoritative part in the drafting of the decree of 1942 (NO-080, Pros. Ex. 5) and of its supplementary service regulations, has declared that the research activities of the branches of the armed forces and of the Waffen SS did not belong to the official department of the Chief of the Armed Forces Medical Services. For the department of research of the Air Force Medical Inspection Service the aforementioned Air Force Medical Inspector Hippke has furnished convincing proof. The prosecution submitted a letter from Hippke of 6 March 1943 to SS Obergruppenfuehrer Wolff (NO-262, Pros. Ex. 108) from which I quote—
“Your opinion that I as responsible head of all research activities in medical science had objected to freezing experiments on human beings and had thereby obstructed the development is erroneous.”
Furthermore I call attention to Document NO-289, Prosecution Exhibit 72 and Document 1612-PS, Prosecution Exhibit 79, which confirm the independence of the air force research work, also to the affidavits of Professor Schroeder and Dr. Becker-Freyseng. (Handloser 22, Handloser Ex. 33; Handloser 23, Handloser Ex. 34.)
* * * * *
It is undisputed that one connection existed between the two medical services, viz, the one with that part of the Medical Service of the Waffen SS which was connected with the Waffen SS divisions during mobilization at the front. It was under those medical offices of the army which corresponded to the respective superior military offices. The divisions of the Waffen SS came under the corps commander of the army; correspondingly, the Medical Service of the Waffen SS divisions came under the corps doctor; the medical service led via the army medical officer [Armeearzt], the army group medical officer, and the army medical chief [Heeresarzt] to the army medical inspector and above him, to the Chief of the Armed Forces Medical Service.
None of these offices, neither military nor medical, could interfere with the essential “character,” the appointment of personnel equipment make up, organization, etc., of the division. The order pertained only to mobilization at the front (tactical subordination). Beyond that, all authority remained in the hands of the superior office of the Waffen SS, the Operational Main Office [Fuehrungshauptamt], Reich Leader SS (Himmler-Grawitz).
The mobilization of the medical units, of the field hospital ambulances and hospital trains, i. e., of the various units of the division medical officer SS, were handled by him in accordance with instructions from the division. Higher orders in regard to the care of SS wounded and sick were given to the SS division medical officer via the army corps medical officer by the army medical chief. In the ordinary course of medical matters, even the army medical officer was not included with the exception of casualty report service. The Army Medical Inspector and the Chief of the Armed Forces Medical Service had practically no occasion to interfere. That only happened when some special event was reported to the higher offices.
The Chief of the Armed Forces Medical Service had the power only for the length of time of subordination to the armed forces to delegate authority, by request of the army medical chief through the Army Medical Inspector, to the army or corps medical officer to make personnel or material adjustments within his department.
With the exception of the fighting divisions, the Chief of the Armed Forces Medical Services had no authority over any other unit or establishment of the Waffen SS, any more than over Dr. Genzken as Chief of the Waffen SS Medical Service beyond the limit of the front divisions. In summing up, then, it is to be noted that the relationship between the armed forces medical offices and those of the Waffen SS was limited in time and practice to the medically necessary tactical subordination and to the medical service during combat operations. This goes to prove that Professor Handloser did not have any influence on the medical organization of the Waffen SS, that is to say, on the entire range of affairs and provinces of the medical service and the health service. This applies especially to medical research and the institutions created for that purpose. This has been proved (a) by the affidavit of Professor Handloser on the diagram of the Medical Service of the Armed Forces; (b) by the affidavit of Professor Mrugowsky (Handloser 17, Handloser Ex. 5); (c) by the affidavit of Dr. Genzken (Handloser 16, Handloser Ex. 6); (d) by the official footnote in the service instructions of 1944 (NO-227, Pros. Ex. 11); (e) by the affidavit of Professor Gebhardt (Tr. p. 4191); (f) by the expert testimony of Hartleben, and (g) by the testimony of Wuerfler (Tr. pp. 3132, 3140, 3142).
The contention of the prosecution that Professor Handloser as Chief of the Armed Forces Medical Service had the supervision of the medical service of the Waffen SS is thereby refuted.
This also invalidates the basic thesis of the prosecution on which is founded the indictment of Professor Handloser, since it has been proved that the Chief of the Armed Forces Medical Services had, in the field of medical research, neither commanding authority nor supervisory powers outside of the scope of military medical inspection.
What has been stated here for the time of the decree of 1942—1 August 1942 until 31 August 1944—applies equally to the time beginning 1 September 1944. The decree of 7 August 1944 (NO-227, Pros. Ex. 11) represented an extension of the original development toward coordination, without accomplishing the subordination of the medical chiefs of the branches of the armed forces as requested by the Chief of the Armed Forces Medical Services. What actually was accomplished was a change in the advisory authority he had held up to then, into commanding authority in the sphere of the technical duties to the Chief of the Armed Forces Medical Services.
Professor Handloser has testified under oath (Handloser 29, Handloser Ex. 4) and witness Hartleben confirmed the same in his statements that, as has already been pointed out above, nothing was changed as far as the field of research of the branches of the armed forces and of the Waffen SS was concerned. The aim of centralizing the widely separated institutions was wrecked, except in those cases which were solely conditioned by the war after 1 September 1944, particularly also owing to the fact which was brought out in the testimony that in the meantime other offices had taken over the management of the research work in the various fields (1) Reich Research Council, (2) Office for Science and Research, and (3) Society for Military Research.
In conclusion and by way of precaution, I also wish to mention the following for the consideration of the Tribunal in connection with the problem of the commanding authority of Handloser as Chief of the Armed Forces Medical Services:
Supposing for a moment that Professor Handloser had had the power of command, there is nothing that speaks more convincingly for his exoneration than the fact that the prosecution has not produced one single document (no order, no regulation, no letter) from which could be deduced that he had made use of his commanding authority in the sense of ordering the performance of an illegal experiment.
In view of the length of time for which he had held the position as Chief of the Armed Forces Medical Services from August 1942 until May 1944, this fact is of decisive importance.
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_EXTRACT FROM THE CLOSING BRIEF FOR DEFENDANT GENZKEN_
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Position and activities
The witness Juettner states the following about his position and his activities (Genzken 15, Genzken Ex. 16): “Dr. Genzken’s position as Chief of the Medical Office of the Waffen SS was the position of a superior officer of the medical units of the Waffen SS. He was exclusively responsible for their training, the formation of new units and their equipment. He had to find substitutes for casualties in the fighting units.”
The Waffen SS itself was newly created in the summer of 1940. At that time it was composed of approximately 580,000 men. (Tr. p. 3792 ff.) In addition to that there were about 320,000 casualties, so that there was a total strength of approximately 900,000 men. The official medical care of the whole Waffen SS was in the hands of the defendant Dr. Genzken. At the beginning, the medical personnel of the Waffen SS was about 800 men and at the end approximately 30,000 men. At the beginning, two hospitals were available to the Waffen SS and at the end of the war, sixty. Six hygiene institutes grew out of a single one in Berlin, etc.
Apart from that, the whole extensive medical organization during the war had to be built up by Dr. Genzken from nothing and under the particularly difficult circumstances caused by war which are sufficiently well known to the high Tribunal. The medical inspectorates of the three Wehrmacht branches could refer back to long years of experience, in the case of army and navy even tens of years. This was not the case in the young arm of the Waffen SS.
For this reason alone it is obvious that the scientific research and planning was not included in Dr. Genzken’s sphere of work, as he repeatedly emphasized during his presentation of evidence and as he underlined by the presentation of affidavits. (Genzken 3, Genzken Ex. 12; Genzken 5, Genzken Ex. 13; Genzken 6, Genzken Ex. 10; Genzken 8, Genzken Ex. 11; Genzken 9, Genzken Ex. 9; Genzken 15, Genzken Ex. 16.)
But Dr. Genzken did not even have the time to concern himself seriously with scientific matters. That was only natural. His most pressing worries were to organize newly the medical services of the Waffen SS as regards personnel and material and to look after it continuously. His position brought with it a considerable responsibility in the whole province of medical services of the Waffen SS by establishing new medical units, equipping of new hospitals so that he had no time left for any other work. It has become absolutely clear during this trial that scientific research and planning was the task of the Reich Physician SS. May I point out in this connection that all the experiments which were discussed in this trial can be traced back almost without exception to Himmler’s and Grawitz’ own initiative. Whether they were high altitude and cooling experiments or typhus and sulfanilamide experiments, all of them were started by one of Himmler’s or Grawitz’ orders. This fact is still more underlined by Document 002-PS, Prosecution Exhibit 39. It is, as it says there literally, concerned with the taking over of research work by the Reich Physician SS, Grawitz. The latter had asked at the end of 1942 that 53 officers be allotted to him for scientific research work. In the whole document, which consists of several reports of the Reich Ministry of Finance and the Reich Physician, the scientific research work in the whole of the medical sphere is mentioned again and again as directed and ordered by the Reich Physician. Even though the application was rejected, later on the lack of typhus vaccine gave, for example, Dr. Grawitz the opportunity to establish, with Himmler’s authorization, an experimental station for typhus research in the Buchenwald concentration camp as his first own scientific institute.
Grawitz has also frequently emphasized to the defendant Mrugowsky that he alone was competent for the research and planning tasks in the medical branch within the SS, and that Dr. Genzken had nothing to do with it. (Genzken 1, Genzken Ex. 3.)
That Dr. Genzken was never interested in the activity and the sphere of work of the Reich Physician, nor even tried to be given these tasks, follows from the fact that in 1941 Himmler chose Dr. Genzken to became Grawitz’ successor. When Genzken’s superior officer, the Chief of the SS Operational Main Office [Fuehrungshauptamt] Juettner, informed him about this request, he at once rejected it energetically, as he preferred to remain in the medical service of the troops and as he thought himself not suitable for scientific research. (Genzken 15, Genzken Ex. 16.)
Dr. Genzken during his interrogation gave the Court a detailed description of the entire staff available to him for the completion of his duties. He expressly pointed out that in the entire organization of his medical office, no office for scientific research and planning was scheduled, and that therefore, in fact no such office actually existed. (Tr. p. 3796.) This fact is also emphasized by the fact that in the Medical Office of the Waffen SS no group of “consulting physicians” existed as specialists for the various specialized branches of medical science. (Genzken 18, Genzken Ex. 17.)
Further, at the end of August 1943, important changes in the form of the organization were effected by order of Himmler, so that by way of a clinical and organizational concentration of the entire medical services of the SS, Dr. Genzken had to turn over his entire pharmaceutical equipment and hygiene institutes, as well as four office chiefs to the office of the Reich Physician SS and Police. Thereby these institutes were under the sole supervision and responsibility of the Reich Physician from this time onwards.
It must be emphasized that Dr. Genzken himself never was in the foreground as a scientist.
During the First World War he was in the navy and concerned with the organization of the medical services for submarines, then he was for 15 years a general practitioner in a small town, was then occupied with organizational duties in the Reichswehr Ministry, and then with similar duties in the Waffen SS; he never held a chair or a professorship and did not have the honorary title of “Professor”.
As in the course of the trial the Hygiene Institute of the Waffen SS was often connected with the experiments, may I be allowed to point out the following:
The Hygiene Institute of the Waffen SS was the only one in the home country. It was not only available for the hygienic problems of the Waffen SS, but also for all other organizations of the SS and therewith also for the Reich Physician for his scientific researches. During the dispute between Grawitz and Dr. Genzken before the Chief of the SS Operational Main Office, the fields of authority between the two were again clearly defined and it was expressly pointed out that the institutes and the research equipment were to remain available to the Reich Physician for his research work (Tr. p. 3789; Genzken 3, Genzken Ex. 12.).
The Hygiene Institute of the Waffen SS was, for budgetary reasons, subordinate organizationally to the Medical Office of the Waffen SS and therewith to the defendant Dr. Genzken. Despite this, however, Genzken did not have complete and sole authority over the Institute.
* * * * *
_EXTRACTS FROM THE CLOSING BRIEF FOR DEFENDANT BLOME_
* * * * *
What connection have all these facts (concerning deterioration of the standard of the German medical profession) with the defendant Dr. Blome? He was never Chief of the German Medical Service nor was he in charge of higher education. He was merely the deputy of the Reich Chief Physician, and as such his only legitimate task was to direct the medical professional associations. Then again he only served in this capacity as the deputy of Dr. Conti (who has been frequently mentioned here), and he had to work within the limits imposed by Dr. Conti. If the prosecution intends to be fair, it may hold Dr. Conti responsible for the abuses and mismanagement which occurred. It was he who, as Under Secretary in the Reich Ministry of the Interior, was in charge of the whole federal public health system. He, therefore, was the actual Reich Chief Physician, not Dr. Blome who would never have been indicted at all if Dr. Conti had not committed suicide and a deputy had not been needed, even after his death, to represent him in the dock. From the very beginning Dr. Blome had nothing to do with medical studies. He was only concerned with the doctors after they had completed their studies and training and were subjected to the disciplinary authority of the Reich Chamber of Physicians as licensed physicians. If the medical training was no good, if medical officers were released with insufficient scientific knowledge or with bad or wrong professional ethics, then the professor may be considered responsible for this if their teaching did not reach the required goal. On the other hand perhaps the heads of the clinics were responsible. Perhaps they did not imbue their practitioners and assistants with the proper professional ethics. Whatever the case may have been, one should not merely look around for a scapegoat to shoulder the moral responsibility.
* * * * *
After all Blome was not consulted in 1935 when the Nuremberg laws against Jewish citizens were enacted, nor in 1938 and the years following when Jewish doctors were gradually prevented from practicing. Blome is in no way responsible for this. These laws were promulgated by the Reich, that is, by the supreme national authority. They were ordered by Reich law and they not only affected the medical profession but also applied to all independent professions and to the entire economic life. They destroyed the economic existence of the Jewish doctor as well as that of the Jewish attorney, author, and businessman. The medical professional organization was not asked at the time whether it agreed to these measures—as a matter of fact, it was only subsequently informed of the Reich laws enacted and consequently was confronted with accomplished facts. If these laws and government orders were crimes against humanity, very well, then the statesmen and the ministers who introduced such laws can be held responsible for them, also the Reichstag deputies who enacted such laws, and the government agencies which published these laws and regarded them as generally binding. But it would be unfair today to try to impose the moral guilt for this development upon a man who was always a mere subordinate executive agent with no independent authority to give orders; a man who always fought against the manifestations of radicalism and tried wherever possible to have the federal laws enforced without harshness. This, for instance, is proved by the affidavit of Dr. Strakosch (Blome 22, Blome Ex. 21) who himself had two Jewish grandparents and who owed the defendant Blome the preservation of his economic existence and who can confirm from his own experience that Blome was never one of the fanatical and ruthless types of the Hitler regime. Dr. Strakosch confirmed that Blome always intended to act as a mitigating influence and that Blome was purely an idealist and not an opportunist in his political convictions.
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[139] Closing statement is recorded in mimeographed transcript, 14 July 1947, pp. 10718-10796.
[140] 66 Supreme Court 340 (1946).
[141] Law Reports of Trials of War Criminals, vol. IV, pp. 3-4, London, 1948.
[142] Law Reports of Trials of War Criminals, vol. IV, p. 2, London, 1948.
[143] Trial of the Major War Criminals, vol. I, p. 306, Nuremberg, 1947.
[144] Final plea is recorded in mimeographed transcript, 14 July; 1947, pp. 10797-10817.
[145] Final Plea is recorded in mimeographed transcript, 16 July 1946, pp. 10942-10971.
[146] Final plea is recorded in mimeographed transcript, 15 July 1947, pp. 10850-10873.
[147] Defendant before International Military Tribunal. See Trial of the Major War Criminals, Vols. I-XLII, Nuremberg, 1947.
[148] Trial of the Major War Criminals, vol. I, p. 288, Nuremberg, 1947.
C. Responsibility of Subordinates for Acts Carried Out Under Superior Orders
a. Introduction
Article II 4 (b) of Control Council Law No. 10 states that—“The fact that any person acted pursuant to the order of his government or of a superior does not free him from responsibility for a crime, but may be considered in mitigation.” The defendants argued, however, that superior orders freed them from criminal responsibility entirely. They also argued that superior orders to engage in the conduct alleged as criminal constitute a mitigating circumstance.
Extracts from the closing statement of the prosecution on the same point appears on pages 957 to 958. A summation of the evidence on this point by the defense has been taken from the final pleas on behalf of the defendants Brack and Fischer. It appears below on pages 959 to 970. This argumentation is followed by two sections from the testimony of defendants on pages 970 to 974, extracts from the examination of defendant Karl Brandt by Judge Sebring, and an extract from the cross-examination of defendant Rose.
b. Selection from the Argumentation of the Prosecution
EXTRACTS FROM THE CLOSING STATEMENT OF THE PROSECUTION[149]
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The defense of Handloser is a general denial. He says in effect that: I was a soldier. I was in charge of the medical administration of the Wehrmacht, but had no power and no right to issue orders, and that whatever may have happened, I am not responsible for it. It is interesting to note that this defense is very similar to that put forward by Field Marshal Keitel[150] in this courtroom approximately a year ago. He was represented by the same defense counsel. Keitel also said that he could not issue orders. We have already discussed in some detail the position of Handloser, and it has been established beyond a shadow of a doubt that he was the supreme authority in the military medical services. We need not stop to consider the practical difference between an order and a directive. We have pointed out that the opportunity and power to control the participation of the military medical services in these crimes was his. The evidence shows that Handloser was connected with a number of criminal medical experiments including the typhus and other vaccine experiments both in Buchenwald and Natzweiler, and the freezing, sulfanilamide, jaundice, gas, and the gas oedema experiments, among others.
* * * * *
Rudolf Brandt also pleads superior orders in mitigation. There is no evidence that Himmler ordered Brandt to participate in any crime. Brandt did so willfully. There is no evidence that Brandt retained his position out of fear. He flourished in it. Nothing would have been easier for him than to be replaced by request or feigned inefficiency. Brandt was not a soldier on the field of battle. His activities were far removed from the confusion of the front lines. He did not act in the spontaneous heat of passion; he had full time to consider and reflect upon his course of action. He continued in his position from 1933 until his arrest by the Allies in 1945, no less than 12 years. This fact alone removes any basis for mitigation. Moreover, assuming that Brandt was ordered to commit the criminal acts which are the subject of this trial, when there is no fear of reprisal for disobedience, obedience represents a voluntary participation in the crime. Such is the case with Rudolf Brandt. Finally the doctrine of superior orders cannot be considered in mitigation where such malignant and numerous crimes have been continuously and ruthlessly committed over a period of many years.
What has been said with respect to Brandt applies equally to the defendant Fischer who also pleads superior orders. He knew at the time he performed these experiments that he was committing a crime. He knew the pain, disfigurement, disability, and risk of death to which his experimental victims would be subjected. He could have refused to participate in the experiments without any fear of consequences. This he admitted in saying, “It was not fear of a death sentence or anything like that, but the choice confronting me was to be obedient or disobedient during war, and thereby set an example, an example of disobedience.” (Tr. p. 4374.) Such an admission removes any basis for mitigation. A soldier is always faced with the alternative of obeying or disobeying an order. If he knows the order is criminal, it is surely a hollow excuse to say it must be obeyed for the sake of obedience alone.
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c. Selections from the Argumentation of the Defense
_EXTRACT FROM THE FINAL PLEA FOR DEFENDANT BRACK_[151]
* * * * *
The treatment of the question of responsibility for euthanasia in this room encounters great difficulties insofar as there is not only considerable ignorance of certain peculiarities of the German position in constitutional matters, but above all a great difference between the thinking of continental European and of transatlantic jurists on matters of constitutional statutory law. Law and morals have for centuries been sharply differentiated on the European continent in juristic and above all in legislative thinking in contrast to the states across the ocean. This historical fact must be taken into consideration, for only then can the realization be reached that in a question of German constitutional law only that development can be decisive which legal training has had in Germany in deviations from the constitutional law of the Weimar Republic, since the Enabling Act of 24 March 1933 and the Head of the State Law of 1 August 1934.
With these laws Hitler was given all authority as head of the state and chief of the government, in full recognition of the Fuehrer principle which had been in operation for over a year, with approval by the plebiscite of 19 August 1934.
From this time on Hitler incorporated the will of the people, and the resulting functions. He had thus become the Supreme Legislator of the Reich. A concluding resolution of the Reichstag was only the confirmation of his primary declaration of his will.
Among the independent promulgations of laws, which were represented as direct emanations of his authority, the declarations of Hitler’s will which were at first called “decrees” and later uniformly “Fuehrer decrees” assumed the most important role. In them the distinction, still customary under the Weimar constitution, between legislative and executive is overcome, as Hitler proclaimed in his Reichstag speech of 30 January 1937 in the words: “There is only one legislative power and one executive.”
Therefore the decrees united material law with organizational measures and administrative directives, especially insofar as they were addressed only to a group of persons gathered together in a certain community. Proclamation in the Reich Law Gazette [Reichsgesetzblatt], countersigned by the competent departmental minister, and later the competent chancellery chief, no longer played a decisive role in 1937. The Fuehrer principle was already in full operation at this time. It no longer tolerated the dependence of the authority to promulgate original laws which was granted to the Fuehrer by the plebiscite of 1934 on the observance of formal regulations. The only decisive thing that remained was the fact of the proclamation of the will of the Fuehrer, not its form. Hitler’s Decree of 1 September 1939 concerning euthanasia, addressed to Brandt and Bouhler, was therefore in form a legally quite acceptable act of government of the head of the state.
My conclusions from the examination of the development in legal history of the Fuehrer principle in the Third Reich agrees with the testimony of the witnesses Lammers,[152] Engert, and Best. This testimony is underlined by the standpoint of the Reich Minister of Justice Guertner and by Schlegelberger as representatives of supreme Reich authorities, as transmitted to us by Lammers and Engert. Finally, it is affirmed by University Professor Dr. Hermann Jahrreiss, who a few days ago dealt with the questions arising in this connection in great detail and exhaustively in the Justice Case before Military Tribunal III.[153] I may ask the Tribunal in judging this legal question to consider these statements.
Brack was convinced of the legality of this decree on the basis not only of juridical but also other effective indications of much more significant independent steps taken by Hitler in domestic and foreign policy.
Brack’s conviction, that of a nonjurist, of the legality of the Fuehrer Decree, based on the explanations and information of his juristic associates and the concurring or at least nondissenting statements of the highest representatives of the Reich justice authorities at the meeting of General Public Prosecutors on 23 April 1941, can therefore not be doubted. (Brack 36, Brack Ex. 36.)
Even if one denies the legal validity to the Hitler Decree, though I regard it as valid, Brack committed a legal error at least as far as the particular legal position of Hitler within the state is concerned, under which decree otherwise illegal activities are to be excused. This legal error is sufficient to abolish his guilt or at least the grave guilt of deliberate intent. According to the German law valid at the time, at any rate, this is the case. According to that, a so-called error outside of criminal law—which is indeed the error about the legal validity of the decree of 1 September 1939—excludes the unlawful character which is an essential of the term “deliberate intent”.
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_EXTRACTS FROM THE FINAL PLEA FOR DEFENDANT FISCHER_[154]
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Acts committed under orders and in relation to a specific military position
The defendant Fischer participated in the experiments for testing the effect of sulfanilamide upon orders of his medical and military superior Karl Gebhardt. It is recognized in the penal code of all civilized nations that action upon orders represents a reason of exemption from guilt, even if the order itself is contrary to law, but binding for the subordinate. In examining this legal question, one proceeds from the principle that the court disregards the reasons of justification and exemption from guilt put forward by me in the case of the defendant Karl Gebhardt and considers that both the order given to the defendant Karl Gebhardt himself, as also the passing on of this order to the defendant Fritz Fischer, are contrary to law.
The adherence to a binding order, even though it be contrary to law, on the part of the subordinate creates for him a reason of exemption from guilt and, therefore, renders him also exempt from punishment. This question is disputed only insofar as some consider the action of the subordinate not only excused but even “justified.” Further examination of this question at issue seems, however, not necessary in these proceedings, since the result is the same in both cases, namely, the perpetrator’s exemption from punishment.
The decisive question in the case on hand therefore is whether and to what extent the “order” for the sulfanilamide experiments was binding for the persons carrying it out.
In view of the fact that, in principle, the law in force at the time is applicable, as the defendants lived under this law and it was binding for them, the question is, therefore, to be examined within the framework of Article 47 of the German Military Penal Code. According to this provision, a subordinate who obeys is liable to be “punished as an accessory if it is known to him that the order given by the superior concerned an act which has for its purpose to commit a general or military crime or offense.”
However, it is not correct, as is sometimes accepted, that Article 47 of the German Military Code itself settles the question in how far military orders are either binding or not binding. This is a question of public and administrative law. But it must always concern an “order regarding service matters,” the same as in other military conditions, that is to say, something which “pertains to military service.” These assumptions are immediately present both in the case of the defendant Karl Gebhardt and in that of the defendant Fritz Fischer. Both were medical officers of the Waffen SS, therefore a unit of the German Wehrmacht in which especially the principle of obedience was strongly pronounced. Karl Gebhardt was Fritz Fischer’s immediate superior; in matters of duty, his order to assist with the medical experiments to be undertaken was a binding order for the young medical officer Fischer.
In the investigation of the legal questions resulting from these circumstances, we will separate the case of the defendant Karl Gebhardt, where the “order” was issued from a very high authority, namely, from the Head of the State and the Commander in Chief of the Wehrmacht, from the case of the defendant Fritz Fischer, in which there is a question of an especially close relationship to his immediate military superior. Later, I will return especially to the general questions of public law concerning the command of the Fuehrer.
The evidence has shown that the order for testing the effectiveness of sulfanilamide emanated from the highest authority, namely, from the Commander in Chief of the Wehrmacht personally. The reasons of justification of the probable acceptance of the wartime state of emergency and the balancing of interests, as discussed fully already in the investigation of the case of the defendant Karl Gebhardt, gain importance independently first in the person of the defendant Fritz Fischer. But they have influence, of course, on the legality or illegality of the order. The investigation of this question has shown that the given order as such was legal. Even if one would not want to take this for granted, however, for a subordinate even an illegal order of a binding nature is of moment.
Article 47 of the German Military Penal Code, as already observed, lets the punishment of the subordinate stand, if “it was known” to the latter that the order of the superior “concerned an act which had for its purpose to commit a general or military crime or offense.” In all other cases the punishment touches only the commanding superior.
Just as in most military courts of other armies, the judicial practice concerning Article 47 of the German Military Penal Code also shows the tendency to a vast limitation of the penal responsibility of the subordinate. That this tendency has grown from the purpose “of guaranteeing the performance of the duty of obedience obligatory to the subordinate, in the interest of military discipline and the Wehrmacht’s constant readiness for battle,” changes nothing in the fact as such. Here it is a matter of evaluating the legal position at the time the act was committed.
Article 47 of the German Military Penal Code establishes a penal responsibility on the part of the subordinate only if it was known to him that the order concerned an act the purpose of which was a crime or an offense. German judicial practice demands in addition a definite knowledge on the part of the acting subordinate; accordingly, cases of mere doubt (conditional intent) or mere obligation to know (negligence) are expressly excluded. Neither is the idea satisfactory that the performance of the order resulted objectively in the committing of a crime or an offense. On the contrary, the superior must have intended this and this fact must have been known to the subordinate.
In applying these principles, there cannot be any doubt that these suppositions were not fulfilled either in the case of the defendant Karl Gebhardt, or in the case of the defendant Fritz Fischer—to say nothing at all of the defendant Herta Oberheuser. Both of these defendants regarded the order given them by the Head of the State as a measure of war which was conditioned by special circumstances caused by the war itself, and by means of which a question should be answered which was of decisive importance not only for the wounded, but beyond that, should furnish a contribution in the struggle for the foundations of life of the German people and for the existence of the Reich. Both defendants were convinced at that time that the order given them should have any other purpose but the committing of a punishable act.
Then, in regard to the particular position of the defendant Fritz Fischer, the meaning of an order of the immediate military superior is to be investigated. At the beginning of the experiments, the defendant Fritz Fischer had the rank of a first lieutenant. He took part in the experiments at the direct command of his military and medical superior who held the rank of general. In view of the surpassing authority of the defendant Karl Gebhardt, as surgeon and Chief of the Hohenlychen Clinic and in view of his high military position, a refusal was completely out of the question.
On principle, no other points of view but those already discussed apply here either. Whether the order is a direct or an indirect one offers no reason for difference. In the case of the defendant Fritz Fischer, however, the following is still to be considered: whether it was known, etc., to the subordinate is always to be especially examined according to the special circumstances of the moment. At the same time, of course, a decisive part is played by the fact that the order for these experiments was given to the defendant Fritz Fischer, not by a military superior who would not have been in a position or duly qualified to give an expert decision of this question, but by a person who not only occupied a high military rank, but beyond that had just that particular experience in the sphere in which the experiments were to be carried out. The defendant Karl Gebhardt was not only a recognized and leading German surgeon, but he had also as consulting surgeon to the Waffen SS and as chief of a surgical reserve combat unit acquired special experience in the sphere of combat surgery and in the treatment of the bacteriological infection of wounds. The reason for this order given to the defendant Fritz Fischer by his chief must have affected him all the more convincingly, as it coincided exactly with the experience which the defendant Fritz Fischer himself had gained as medical officer with the First SS Armored Division in Russia.
In addition, there was the special framework in which all this took place. Fritz Fischer had been released from the combat unit on account of serious illness and had been ordered to the Hohenlychen Clinic. He was under the immediate impression of hard experience at the front. In Hohenlychen he found himself in a clinic which operated in peacetime conditions under the energetic direction of a man extraordinarily gifted in organizational and scientific matters. Every building, every installation of this recognized model institute, the numerous clinical innovations and modern methods of treatment, every one of the many successful treatments of Hohenlychen was inseparably bound up with the name of the chief physician Karl Gebhardt and gave unconditional and unlimited value to his word and his authority in his entire environment.
For all these reasons, the defendant Fritz Fischer could have had no doubt at all but that the performance of the order given him was from the medical standpoint a requisite and permissible war measure. Precisely the open carrying-out of the individual experimental measures, with the exclusion of every duty of secrecy, as well as the report of the results which was provided for in advance and also executed before a critical forum of the highest military physicians, were especially suited to nip in the bud any distrust of the justification of these experiments in the mind of the defendant Fritz Fischer.
* * * * *
As Fritz Fischer strictly adhered to the part-orders given to him and did not show any initiative of his own, it excludes him moreover from any responsibility concerning questions which were outside his sphere of action. It is impossible to make Fritz Fischer responsible for questions connected with the legal and medical preparation of the directives for the experiments and the cosmetic after-treatment. Apart from this viewpoint, the special conditions of public law which existed in Germany at the time of the action ought to be mentioned. They were explained by Professor Jahrreiss in his opening speech before the International Military Tribunal in the proceedings against Hermann Goering and others.[155] Professor Jahrreiss thereby represented the following point of view:
“State orders, whether they lay down rules or decide individual cases, can always be measured against the existing written and unwritten law, but also against the rules of international law, morals, and religion. Someone, even if only the conscience of the person giving the orders, is always asking: Has the person giving the order ordered something which he had no right to order? Or has he formed and published his order by an inadmissible procedure? But an unavoidable problem for all governmental systems lies in this: Should or can it grant the members of its hierarchy, its officials and officers, the right—or even impose on them the duty—to examine at any time any order which demands obedience from them, to determine whether it is lawful, and to decide accordingly whether to obey or refuse? No governmental system which has appeared in history to date has given an affirmative answer to this question. Only certain members of the hierarchy were ever granted this right; and they were not granted it without limits. This was also the case, for instance, under the extremely democratic constitution of the German Reich during the Weimar Republic and is so today under the occupation rule of the four great powers over Germany.
“In as far as such a right of examinations is not granted to members of the hierarchy, the order has legal force for them.
“All constitutional law, that of modern states as well, knows acts of state which must be respected by the authorities even when they are defective. Certain acts of laying down rules, certain decisions on individual cases which have received legal force, are valid even when the person giving the order has exceeded his competence or has made a mistake in form.
“If only because the process of going back to a still higher order must finally come to an end, orders must exist under every government that are binding on the members of the hierarchy under all circumstances and are therefore law where the officials are concerned, even if outsiders may see that they are defective as regard content or form * * *.
“* * * The result of the development in the Reich of Hitler was at any rate that Hitler became the supreme legislator as well as the supreme author of individual orders. It was not least of all under the impression of the surprising successes, or what were considered successes in Germany and abroad, above all during the course of this war, that he became this. Perhaps the German people are—even though with great differences between north and south, west and east—particularly easily subjected to actual power, particularly easily led by orders, particularly used to the idea of a superior. Thus the whole process may have been made easier.
“Finally the only thing that was not quite clear was Hitler’s relationship to the judiciary. For, even in Hitler-Germany, it was not possible to kill the idea that it was essential to allow justice to be exercised by independent courts, at least in matters which concern the wide masses in their everyday life. Up to the highest group of Party officials—this has been shown by some of the speeches of the Reich Justice Leader, the defendant Dr. Frank, which were submitted here—there was resistance, which was actually not very successful, when justice in civil and ordinary criminal cases was also to be forced into the “sic jubeo” of the one man. But, apart from the judiciary, which was actually also tottering, absolute monocracy was complete. The Reichstag’s pompous declaration about Hitler’s legal position, dated 26 April 1942, was actually only the statement of what had become practice long before.
“The Fuehrer’s orders were law already a considerable time before this Second World War.
“In this state order of his, the German Reich was treated as a partner by the other states, and this in the whole field of politics. In this connection I do not wish to stress the way (so impressive to the German people and so fatal to all opposition) in which this took place in 1936 at the Olympic Games, a show which Hitler could not order the delegations of foreign nations to attend, as he ordered Germans to the Nuernberg Party Rally in the case of his state-shows. I should like rather only to point out that the governments of the greatest nations in the world considered the word of this “almighty” man the final decision, incontestably valid for every German, and based their decisions on major questions on the fact that Hitler’s order was incontestably valid. To mention only the most striking cases, this fact was relied upon when the British Prime Minister, Neville Chamberlain, after the Munich Conference, displayed the famous peace paper when he landed at Croydon. This fact was adhered to when people went to war against the Reich as the barbarous despotism of this one man.
“No political system has yet pleased all people who live under it or who feel its effects abroad. The German political system in the Hitler era displeased a particularly large and ever-increasing number of people at home and abroad.
“But that does not in any way alter the fact that it existed, not lastly because of the recognition from abroad and because of its effectiveness, which caused a British Prime Minister to make the now world-famous statement at a critical period, that democracies need two years longer than the totalitarian governments to attain a certain goal. Only one who has lived as if expelled from among his own people, amidst blindly believing masses who idolized this man as infallible, knows how firmly Hitler’s power was anchored in the anonymous and innumerable following who believed him capable only of doing what was good and right. They did not know him personally, he was for them what propaganda made of him, but this he was so uncompromisingly that everybody who saw him from close-to and saw otherwise, knew clearly that resistance was absolutely useless and, in the eyes of other people, was not even martyrdom.
“Would it therefore not be a self-contradictory proceeding if both the following assertions were to be realized at the same time in the rules of this trial? * * *
“* * * The functionaries had neither the right nor the duty to examine the orders of the monocrat to determine their legality. For them these orders could not be illegal at all, with one exception which will be discussed later—an exception which, if carefully examined, is seen to be only an apparent one—namely with the exception of cases in which the monocrat placed himself, according to the indisputable values of our times, outside every human order, and in which a real question of right or wrong was not put at all and thus a real examination was not demanded.
“Hitler’s will was the ultimate authority for their considerations on what to do and what not to do. The Fuehrer’s order cut off every discussion. Therefore, a person who, as a functionary of the hierarchy refers to an order of the Fuehrer’s, is not trying to provide a ground for being exempted from punishment for an illegal action, but he denies the assertion that his conduct is illegal; for the order which he complied with was legally unassailable.
“Only a person who has understood this can have a conception of the difficult inner struggles which so many German officials had to fight out in these years in face of many a decree or resolution of Hitler’s. For them such cases were not a question of a conflict between right and wrong: Disputes about legality sank into insignificance. For them the problem was one of legitimacy; as time went on, human and divine law opposed each other ever more strongly and more frequently.
“Therefore, whatever the Charter understands by the orders which it sets aside as a ground for exemption from punishment, can the Fuehrer’s order be meant by this? Can it come within the meaning of this rule? Must one not accept this order for what it was according to the interior German constitution as it had developed, a constitution which had been explicitly or implicitly recognized by the community of states? * * *
“* * * The one supreme will became, quite simply, technically indispensable. It became the mechanical connecting link for the whole. A functionary who met with objections or even resistance to one of his orders from other functionaries only needed to refer to an order of the Fuehrer’s to get his way. For this reason many, very many, among those Germans who felt Hitler’s regime to be intolerable, who indeed hated him like the devil, looked ahead only with the greatest anxiety to the time when this man would disappear from the scene; for what would happen when this connecting link disappeared? It was a vicious circle.
“I repeat: An order of the Fuehrer’s was binding—and indeed legally binding—on the person to whom it was given, even if the directive was contrary to international law or to other traditional values.”
So much for the statements of Professor Jahrreiss before the International Military Tribunal. The development presented here seems to be particularly relevant for the case of the defendant Fischer, since he himself in the witness box described his attitude towards the Fuehrer’s command in a way which, because of his very youth, his idealistic conception of life and duty and his manly confession, was particularly convincing.
It is true that in the face of all this, reference will be made to Article 8 of the Charter for the International Military Tribunal which reads: “The fact that the defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.”
Accordingly, Law No. 10 of the Control Council, Article II, paragraph 4 reads—
“(b) The fact that any person acted pursuant to the orders of his government or of a superior does not free him from responsibility for a crime, but may be considered in mitigation.”
In the face of this objection the following is to be pointed out:
At the time of their actions the defendants were subject to German law according to which the degree of their responsibility was determined and, even today, must justly be referred back to that moment. The following should be emphasized, however, in case the Tribunal should not apply the legal provisions in force at the time of the act, but should base its judgment on Law No. 10 of the Control Council, though it represents a manifest violation of the prohibition of retroactive application of penal laws.
Even from the above-named provision of the Law of the Control Council, the principle cannot be derived that every command of a superior should, under the aspect of Penal Law, be irrelevant under all circumstances. This also applies to the problem of the exemption from responsibility and exemption from penalty. The provision only states that the existence of such a command in itself does not exempt one from the responsibility for a crime; it does not, however, preclude by any means that in connection with other facts it may be relevant for this problem as well.
The guiding legal aspect underlying these deliberations is contained in the concept of the so-called conflict of duties which has been repeatedly mentioned before. This aspect does not coincide eo ipso with the “objective” principle of balancing interests, as discussed in examining the case of the defendant Karl Gebhardt. In addition one must insist on consideration of the “subjective” position of the person committing the act.
In other words, in order to arrive at a just appreciation of the case, the personal situation of the person committing the act at the moment of its being committed will have to be weighed up as well. This applies particularly to the personal situation into which the person committing the act has been put by reason of a higher command which is binding for him and influences him. Besides the general “objective” principles of balancing interests, such a special “subjective” state of coercion can and must therefore be considered in his favor also. A “command” can, therefore, according to the concrete situation, shift the boundaries of culpability further in his favor.
Reinhardt Frank, the great German criminologist, has with regard to the problem of the so-called conflict of duties established the maxim, “In as far as the conflict of duties has not been expressly regulated the maxim should prevail that the higher, the more significant, the more important duty is to be fulfilled at the expense of the less high one and that, therefore, omission to fulfill the latter one is not contrary to law.”
With good reason it has always been emphasized that in such a situation of conflict of diversified duties the decision is, in the end, not to be found in positive law, but it is of an ethical nature. That is why, in such a situation, a certain leeway must be left to the personal conscience; it is not possible here to arrive at everything through the coarse means of an outward penal provision. This completely “personal” character of genuine ethical conflicts has also been fully recognized and emphasized in the authoritative philosophical literature. Nicholai Hartmann, Ethics (2d Edition, 1935, pp. 421-422) says for instance, with regard to genuine conflicts of values:
“It is a fateful error to believe that such problems can be solved on principle in theory. There are border-line cases in which the conflict in conscience is grave enough to require a different solution according to the particular ethos of the person. For it lies in the very nature of such conflicts that values are balanced, and that it is not possible to emerge from them without becoming guilty. Accordingly, a man in this situation cannot help making a decision. A person faced with this serious conflict, incurring such a measure of responsibility, ought to decide this—
“To follow the dictates of his conscience to the best of his ability, that is, according to his own live sense of the level of values and accept the consequences.”
No further argument should be needed for demonstrating that just from an ethical point of view measuring of such personal decisions by standards of penal law is out of the question.
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d. Evidence
Testimony Page Extracts from the testimony of defendant Karl Brandt 970 Extract from the testimony of defendant Rose 973
EXTRACTS FROM THE TESTIMONY OF DEFENDANT KARL BRANDT[156]
EXAMINATION
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JUDGE SEBRING: * * * Witness, for the sake of clarification, let us assume that it would have been highly important to the Wehrmacht to ascertain, as a matter of fact, how long a human being could withstand exposure to cold before succumbing to the effects of it. Do you understand that? Let’s assume secondly that human subjects were selected for such freezing experiments without their consent. Let’s assume thirdly that such involuntary human subjects were subjected to the experiments and died as a direct or indirect result thereof. Now, would you be good enough to inform the Tribunal what your view of such an experiment is—either from the legal or from the ethical point of view?
DEFENDANT KARL BRANDT: I must repeat once more, in order to make sure that I understood you correctly. When assigning the experiment the following things are assumed: highest military necessity, involuntary nature of the experiment, and the danger of the experiment with eventual fatality. In this case I am of the opinion that, when considering the circumstances of the situation of the war, this state institution which has laid down the importance in the interest of the state at the same time takes the responsibility away from the physician if such an experiment ends fatally and such a responsibility has to be taken by the state.
Q. Now, does it take away that responsibility from the physician, in your view, or does it share that responsibility jointly with the physician, in your view?
A. In my view, this responsibility is taken away from the physician because, from that moment on, the physician is merely an instrument maybe in the same sense as in the case of an officer who receives an order at the front and leads a group of three or four soldiers into a position where they are certain to meet death. That position, if I apply it to German conditions during the war, is in principle the same. I don’t believe that the physician as such, from his ethical and moral feelings, would carry out such an experiment without this assurance of the authoritarian state which gives him a formal and legal assurance on one side and, on the other side, gives him the order for the execution. Naturally, in this case, it is a theoretical question since I cannot survey the position in the case of the freezing experiment. I don’t know how this assurance was given and how the order was given. Basically, I want to differentiate between the order for an experiment which arises from medical needs as such and where, under the circumstances, the state only has a secondary interest on the basis of medical initiatives, and I would differentiate between the reverse state of affairs where the state uses medical activities.
Q. The Tribunal has one further question of interest.
In your view, would an order which authorized or directed a subordinate medical officer or subordinate medical group to carry on a certain medical experiment—let us assume for the moment this freezing experiment—we have then a general order, let us assume, directing a certain institute to carry on freezing experiments without delineating or specifying in detail the exact course of those experiments. Would you conceive that such an order would authorize the medical officer to whom the order was addressed to select subjects involuntarily and subject them to experiments, the execution of which that officer absolutely knew or should have known would likely result in death to the subject?
A. May I have your last sentence repeated, please? This question is extremely difficult to answer. The order given in such a case has to be taken into consideration. May I, perhaps, answer with an example of such an order. If Himmler gives an order to a Dr. “X” and tells him to carry out a certain experiment, then it is possible that Dr. “X” did not wish to comply with this order. In such a case, however, Dr. “X” will not have overlooked the importance of the experiment itself, the same way as the lieutenant who received a certain military order—and we are here concerned with a military order—does not overlook that he would have to hold out with a group of eight men at a bridgehead and that this would end in his death. In spite of that, this officer with his eight men to whom he passed this order on would meet their death at that position. So this physician “X” who received this order from Himmler would under the circumstances have to carry out an experiment without being able to judge the validity of the reasons which prompted a central agency.
If a physician had not carried out that experiment, he would have got into a position where he would be called to account if he had not carried out that experiment. In this case, and there we have to consider the authoritarian nature of our state, the personal feeling and the feeling of a special professional, ethical obligation has to subordinate itself to the totalitarian nature of the war.
I must say once more, these are theoretical assumptions which I am expressing here. At the same time I could express how difficult such decisions are if I refer to an example which recently was quoted here, and I mean the eight hundred inmates in a prison in America who were infected with malaria. I don’t want to refer to this example in order to justify the experiments which are under indictment here, but I want to express that the question of the importance of an experiment is, and remains, basically of decisive importance. Even there a certain number of fatalities had to be expected from the start when infecting eight hundred people with malaria.
The voluntary attitude which an inmate adopts and with which an inmate makes himself available is a relatively voluntary agreement. I don’t think it would be the same if one were to receive a voluntary agreement from people who are present here. One has to consider the nature of the voluntary agreement. In my opinion, this round figure of eight hundred speaks against the voluntary agreement of all. I would assume that if it was seven hundred and thirty-five or seven hundred and forty, it would be different, but the round figure of eight hundred seems to indicate that there was a certain order for the experiment before the beginning of the experiment, and these experiments, too, were directed from the point of view of a superior state interest, and this superior state interest, at the same time, takes over the responsibility for the result of the experiment with reference to the experimental subject. For responsibility in a medical sense cannot be assumed at all since even a negative series of experiments speaks against the urgency and necessity of these experiments; and particularly when answering the question about voluntary or involuntary, dangerous or nondangerous natures, it is very difficult and almost impossible to say basically with reference to experiments that experiments on human beings, taking all these things into consideration, are a crime or are not a crime. The question can only be judged when over and above the expected result experiments are still continued. If a result has been established and further experiments on human beings are then carried out, they are not important, and the experiment which is not important is only a dilettante experiment. In that case I would from the start assume the word “criminal,” but when dealing with important experiments, it is necessary to take into consideration all the circumstances which played a part at that time; that is to say, the important experiments, from the moment a result is achieved, become unimportant. From that moment on, in my opinion, the experiment is criminal. Therefore, that when speaking about human experiments at all, one must put the results at the disposal of the state—not only to one state but internationally—so that experiments which are carried out in Russia and which had shown results would not be continued in other countries.
With reference to freezing experiments, I can only say that in a certain form, without saying “criminal” or “not criminal,” they showed their value. The indication for that is that the results in the American Air Force were considered as something extraordinary and helped the American Air Force to gain years, and I think that these experiments would also be of use in mines, where a number of fatalities occur because of freezing. If you consider the freezing experiments in that light, the victims in effect are tragic and are to be regretted, but with reference to subsequent periods these victims are a real sacrifice, for hundreds, or maybe thousands of people might save or prolong their lives because of it.
* * * * *
Q. Dr. Brandt, is it not true that in any military organization, even one of an authoritarian state, there comes a point beyond which the officer receiving an order subjects himself to individual responsibility, at least in the eyes of civilized society, for carrying out any military orders, particularly if the order is unlawful or transcends the limit of extreme military necessity?
A. There was a general law stating that an officer does not have to carry out an order which he realizes is a crime, but the question with reference to these various experiments is whether the man concerned can realize that what he is doing is a crime. If he can realize it, then, in my opinion, he cannot comply with the order.
* * * * *
EXTRACT FROM THE TESTIMONY OF DEFENDANT ROSE[157]
CROSS-EXAMINATION
* * * * *
MR. MCHANEY: And you suggested and asked him [defendant Mrugowsky] to carry out experiments with Copenhagen vaccine in the typhus experiments in Buchenwald, didn’t you?
DEFENDANT ROSE: I was asking whether there was still a possibility of carrying out such a series of experiments. That is quite understandable, considering the situation, because one can see from my report of 29 May 1943, that this seemed to constitute a considerable advance on the experiments already made on animals. I knew that such experiments had been carried out earlier, although I basically objected to these experiments. This institution had been set up in Germany and was approved by the state and covered by the state. At that moment I was in a position which might correspond to that of a lawyer who is, perhaps, a basic opponent of capital punishment. On occasions when he is dealing with leading members of the government or with lawyers during public congresses or meetings, he will do everything in his power to maintain his opinion on the subject and have it put into effect. If, however, he does not succeed, he stays in his profession and in his environment in spite of this. Under certain circumstances he may perhaps even be forced to pronounce such a death sentence himself, although he is basically an opponent of the principle. Of course, it does not go as far as this in my case. I am only in touch with people of whom I assume that they somehow are included in the official channels of such an institution, which I disapprove of basically, and which I want to see removed.
Q. Professor, six persons died in this experiment with the Copenhagen vaccine, didn’t they?
A. Yes. They were six people who were furnished by the Reich Criminal Police Office through ordinary channels as determined by competent agencies.
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[149] Closing statement is recorded in mimeographed transcript, 14 July 1947, pp. 10718-10796.
[150] Defendant before International Military Tribunal. See Trial of the Major War Criminals, Vols. I-XLII, Nuremberg, 1947.
[151] Final plea is recorded in mimeographed transcript, 18 July 1947, pp. 11220-11244.
[152] Defendant in case of United States vs. Ernst von Weizsaecker, et al. See Vols. XII, XIII, XIV.
[153] United States vs. Josef Altstoetter, et al. See Vol. III.
[154] Final plea is recorded in mimeographed transcript, 16 July 1947, pp. 10922-10941.
[155] Trial of the Major War Criminals, vol. XVII, pp. 458-494, Nuremberg, 1948.
[156] Complete testimony is recorded in mimeographed transcript, 3, 4, 5, 6, 7 Feb. 1947, pp. 2301-2661.
[157] Complete testimony is recorded in mimeographed transcript, 18, 21, 22, 23, 24, 25 Apr. 1947, pp. 6081-6484.
D. Status of Occupied Poland Under International Law
a. Introduction
The defense argued that Poland lost its sovereignty as a result of the complete occupation of Polish territory and the cessation of Polish military resistance in September 1939 and held that in consequence Germany could treat Polish nationals according to German law. An extract from the closing statement of the prosecution on this point appears on page 975. The argument, that international law concerning belligerent occupation was thus not applicable to the treatment of Polish nationals, appears in the extracts from the final plea for defendant Gebhardt on pages 976 to 979.
b. Selection from the Argumentation of the Prosecution
EXTRACT FROM THE CLOSING STATEMENT OF THE PROSECUTION[158]
* * * * *
In the case of some of the defendants, and this is especially true with respect to Gebhardt, Fischer, and Oberheuser in connection with the sulfanilamide experiments, it is to be expected that the argument will be made that crimes against Polish, and perhaps also Czech nationals, do not constitute war crimes within the meaning of Control Council Law No. 10. This argument is based upon the proposition that Germany was no longer bound by the rules of land warfare in many of the territories occupied during the war because Germany had completely subjugated those countries and incorporated them into the German Reich, and therefore Germany had the authority to deal with the occupied countries as though they were part of Germany. Thus, the defense placed in evidence the Russo-German Boundary and Friendship Treaty of 28 September 1939 as well as certain German decrees concerning the administration of occupied Poland. (Gebhardt 14, Gebhardt Ex. 13; Gebhardt 15, Gebhardt Ex. 14; Gebhardt 16, Gebhardt Ex. 15.) Without stopping to argue the point that that part of Poland administered by the so-called General Government, from which the Polish subjects for the sulfanilamide experiments came, was never incorporated into the Reich, it will be sufficient to point out that this argument was disposed of by the International Military Tribunal. In its judgment, the following was said:[159]
“In the view of the Tribunal, it is unnecessary in this case to decide whether this doctrine of subjugation, dependent as it is upon military conquest, has any application where the subjugation is the result of the crime of aggressive war. The doctrine was never considered to be applicable so long as there was an army in the field attempting to restore the occupied countries to their true owners, and in this case, therefore, the doctrine could not apply to any territories occupied after 1 September 1939.”
The argument also has no validity with respect to Czech nationals. The International Military Tribunal said that:
“As to war crimes committed in Bohemia and Moravia, it is a sufficient answer that these territories were never added to the Reich, but a mere protectorate was established over them.”[160]
* * * * *
c. Selection from the Argumentation of the Defense
_EXTRACT FROM THE FINAL PLEA FOR DEFENDANT GEBHARDT_[161]
* * * * *
The Legal Status of the Experimental Subjects
“Inmates of the Ravensbrueck concentration camp who had been sentenced to death by German courts martial in the General Government as members of the Polish Resistance Movement were employed as experimental subjects (in the sulfanilamide experiments).” The witnesses questioned in Court and all experimental subjects from whom the prosecution has submitted affidavits have openly professed their membership of the Resistance Movement and it must be added that some of them exercised relatively important functions in the Resistance Movement. If the legal status of the experimental subjects at the time of their activity in the Resistance Movement is examined, the result will be as follows:
LEGAL STATUS OF POLAND
The former Polish State ceased to exist as an independent subject from the point of view of international law at the latest on 28 September 1939. After the entire area of the former Polish State had been occupied by the German armies and the troops of the Soviet Union, and the Polish Government had gone into Romanian territory under pressure of the invasion of the Red Army on 17 September 1939, the two occupational powers decided to carry out a plan previously agreed upon which was to settle all matters concerning the territory of the former Polish State without interference by any other powers. This was brought about by the German-Soviet Boundary and Friendship Pact of 28 September 1939. (Gebhardt 14, Gebhardt Ex. 13.) I refer to the contents of the pact for particulars. It was on this day, at the very latest, that Poland ceased to exist as a sovereign state and as bearer of rights and duties. Due to war, the former Polish State ceased to exist as a state and therewith as a subject from the point of view of international law.
The territory of the former Polish State, insofar as it fell within the sphere of Soviet interests, became part of the U. S. S. R., to which it still belongs today.
The Polish territory, which fell into the German sphere of interests and which is designated in detail in the Supplementary Protocol to the German-Soviet Boundary and Friendship Pact, became either part of the German Reich or—and this concerned the larger part of the area—was made into an independent borderland of the German Reich under the designation General Government. The constitutional laws governing this territory were based on the Decree for the Administration of the Occupied Polish Territory issued on 12 October 1939 by the Fuehrer and Reich Chancellor. I have presented the decree to the Tribunal as Document Gebhardt 15, Gebhardt Exhibit 14. Article 4 of this decree states that Polish law was to continue to be valid insofar as it was not at variance with the taking over of the administration by the German Reich. Article 5 gives the Governor General the right to issue laws by ordinance for the territory under his administration.
Corresponding to the generally acknowledged principles of international law the ordinances issued by the Governor General were binding for the population of this territory. This is especially true of the Ordinance for Combating Deeds of Violence in the General Government, which was issued on 31 October 1939 (Ordinance Gazette for the General Government, page 10), and which also laid the foundation for the competence of the courts martial. This ordinance had become necessary because the military government, which had been active until 26 October 1939, ceased to exist when the Fuehrer Decree of 12 October 1939 became valid.
In this connection, the following reply must be made to the objection of the prosecution in their final plea on the morning of the 14th.
First: No Polish Government was in existence when these experimental subjects were working for the Resistance Movement in 1940 and 1941. The Polish Government had ceased to exist as an independent subject under international law. The government in exile in London under General Sikorski and the government in Lublin were only subsequently recognized by the Western Allies.
Second: When the experimental subjects were working for the Resistance Movement in 1940, no Polish Army in combat existed.
Third: The prosecution seems to have endeavored to express that this Military Tribunal should not primarily apply territorial penal law but the principles of international law. For this very reason the prosecution pointed out that the jurisdiction and the judicial authority within the General Government were the consequence of an aggressive war and could not, therefore, be legally recognized. This concept does not apply. It must first be pointed out that the principles of international law, which have the function to regulate legal issues during war, make no distinction between an aggressive war, a defensive war, or a justified war. This is particularly stated in the Fourth Hague Convention of 1907, the so-called Hague Land Warfare Convention.
The objection of the prosecution is not justified for another reason. The evidence before the IMT showed that the attack on Poland was carried out by Germany in at least the same manner as it was carried out by the U.S.S.R., and that this becomes quite evident from the contents of the German-Soviet secret treaty of 23 August 1939. Nevertheless the U.S.A. did not hesitate to recognize the territorial claims made by the U.S.S.R. in the area of the former Polish State. This recognition took place de facto as well as de jure during the Yalta Conference in February 1945 and the Potsdam Conference on 2 August 1945.
The prosecution cannot therefore object today to this state of affairs as far as the legal issues arising from this attack are concerned.
The Ordinance for Combating Acts of Violence in the General Government and the introduction of the courts martial connected with it would, by the way, have been permissible, even if though the former Polish State had not ceased to exist as a subject in the realm of international law. Military occupation of foreign states (occupatio bellica), too, gives the occupying power the right to take all the measures necessary for the maintenance of order and safety. It is a generally acknowledged legal conception that in this case the occupying power takes over the power of the conquered state, not as its deputy, but rather by authority of its own laws guaranteed by international law. The right is expressly acknowledged in the third section of the Hague Convention for Land Warfare [Section III, Annex to the Convention]. There can be no doubt that the introduction of courts martial is one of these rights of the occupying power. In fact it seems inconceivable that an occupying power should not be allowed to take measures for the effective combating of a resistance movement, whose sole and openly admitted purpose it was to undermine and destroy the authority of the occupying power and the safety of the occupation troops. The right to do this can be contested even less in our case, since with the outbreak of the German-Soviet war, the territory of the former General Government became the largest military transit area which has ever existed in the history of war. The methods by which the Polish Resistance Movement tried to attain its goals do not need to be examined here in detail. It is sufficient to point out that the Resistance Movement was in a position to interfere to a considerable extent with German Army reinforcements against the Red Army; this interference took the form of blasting of bridges, transmission of important military information, etc. The Polish women used for the sulfanilamide experiments were members of this Resistance Movement and they supported it wherever they could. However much we respect the courage and patriotism of these women, we cannot refrain from emphasizing the fact that they violated laws which at that time were binding for them. This violation gave the occupation power the right to impose adequate punishment upon them. It seems unthinkable that the members of a resistance movement such as the Polish one would not have been sentenced to death during the war for their resistance activities by any other state which found itself in a position similar to that of Germany at that time. Latest developments show that the occupation powers in Germany now do not hesitate to impose the most severe penalties in similar cases.
For example, the American Military Government for Germany in its Ordinance No. 1, which was issued to insure the safety of the Allied Armed Forces and to reestablish public order in the territory occupied by them, lists, among others, the following acts as crimes punishable by death:
Communication of information which may be dangerous to the security or property of the Allied Forces, or unauthorized possession of such information without promptly reporting it; and unauthorized communication by code or cipher;
Interference with transportation or communication or the operation of any public service or utility;
Any other violation of the laws of war or act in aid of the enemy or endangering the security of the Allied Forces.
A comparison of these regulations with the contents of the court martial regulations of the Governor General for the Occupied Polish Territories, presented in Document Book II for the defendant Gebhardt, shows clearly that here generally the same facts were declared to be punishable with the death sentence.
In order to exclude any doubts with regard to the legal status of the experimental subjects, it may be pointed out in conclusion that the members of the Polish Resistance Movements, at least when the prisoners belonged to these movements, did not fulfill the conditions of Article I of the Hague Convention for Land Warfare of 1907 [Section I, Chapter I, Annex to the Convention] concerning militia and voluntary corps not affiliated with the army and having a certain military organization. The Polish Resistance Movement at that time (1) had no leader who was ostensibly at its head and responsible for the conduct of the members; (2) it wore no particular badge recognizable from a distance; (3) it did not wear its arms openly; and finally, (4) in its conduct of war it disregarded the laws and practices of war. In view of these facts the members of the Resistance Movement could not have been treated as prisoners of war even if at that time a Polish Army had still been in the field. In view of the fact that the prisoners in question were women serving in the communications and espionage branches of the Resistance Movement, this possibility was eliminated from the very beginning.
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[158] Closing statement is recorded in mimeographed transcript, 14 July 1947, pp. 10718-10796.
[159] Trial of the Major War Criminals, vol. I, p. 254, Nuremberg, 1947.
[160] [Ibid.]
[161] Final plea is recorded in mimeographed transcript, 15 July 1947, pp. 10874-10911.
E. Voluntary Participation of Experimental Subjects
a. Introduction
There was considerable contention in the case as to whether an inmate of a German concentration camp could give his voluntary consent to participate in medical experiments. The prosecution argumentation on this point appears in the opening statement on pages 27-74 and in the closing statement. The applicable extract from the closing statement of the prosecution appears below on pages 980 to 983. Selections from the defense argumentation on this point have been taken from the closing brief for the defendant Karl Brandt and from the final plea for the defendant Ruff. These appear below on pages 983 to 992. The following selections from the testimony have been taken from the evidence on this point: Extracts from the direct examination of the prosecution witness Dr. Eugen Kogon, and extracts from the cross-examination and redirect examination of the prosecution’s expert witness Dr. Andrew C. Ivy. These extracts appear below on pages 993 to 1004.
b. Selection from the Argumentation of the Prosecution
EXTRACT FROM THE CLOSING STATEMENT OF THE PROSECUTION[162]
* * * * *
* * * It is the most fundamental tenet of medical ethics and human decency that the subjects volunteer for the experiment after being informed of its nature and hazards. This is a clear dividing line between the criminal and what may be noncriminal. If the experimental subjects cannot be said to have volunteered, then the inquiry need proceed no further. Such is the simplicity of this case.
What then is a volunteer? If one has a fertile imagination, suppositious cases might be put which would require a somewhat refined judgment. No such problem faces this Tribunal. The proof is overwhelming that there was never the slightest pretext of using volunteers. It was for the very reason that volunteers could not be expected to undergo the murderous experiments which are the subject of this trial that these defendants turned to the inexhaustible pool of miserable and oppressed prisoners in the concentration camps. Can anyone seriously believe that Poles, Jews, and Russians, or even Germans, voluntarily submitted themselves to the tortures of the decompression chamber and freezing basin in Dachau, the poison gas chamber in Natzweiler, or the sterilization X-ray machines of Auschwitz? Is it to be held that the Polish girls in Ravensbrueck gave their unfettered consent to be mutilated and killed for the glory of the Third Reich? Was the miserable gypsy who assaulted the defendant Beiglboeck in this very courtroom a voluntary participant in the sea-water experiments? Did the hundreds of victims of the murderous typhus stations in Buchenwald and Natzweiler by any stretch of the imagination consent to those experiments? The preponderance of the proof leaves no doubt whatever as to the answer to these questions. The testimony of experimental subjects, eyewitnesses, and the documents of the defendant’s own making, establish beyond a shadow of a doubt that these experimental subjects were nonvolunteers in every sense of the word.
This fact is not seriously denied by the defendants. Most of them who performed the experiments themselves have admitted that they never so much as asked the subjects whether they were volunteering for the experiments. As to the legal and moral necessity for consent, the defendants pay theoretical lip service, while at the same time leaving the back door ajar for a hasty retreat. Thus, it is said that the totalitarian “State” assumed the responsibility for the designation of the experimental subjects, and under such circumstances the men who planned, ordered, performed, or otherwise participated in the experiment cannot be held criminally responsible even though nonvolunteers were tortured and killed as a result. This was perhaps brought out most clearly as a result of questions put to the defendant Karl Brandt by the Tribunal. When asked his view of an experiment, which was assumed to have been of highest military necessity and of an involuntary character with resultant deaths, Brandt replied:
“In this case I am of the opinion that, considering the circumstances of the situation of the war, this state institution, which has laid down the importance of the interest of the state, at the same time takes the responsibility away from the physician if such an experiment ends fatally, and such responsibility must then be borne by the state.” (Tr. p. 2567.)
Further questioning elicited the opinion that the only man possibly responsible in this suppositious case was Himmler, who had the power of life and death over concentration camp inmates, even though the experiment may have been ordered, for example, by the Chief of the Medical Service of the Luftwaffe and executed by doctors subordinated to him. Most of the other defendants took a similar position, that they had no responsibility in the selection of the experimental subjects.
This defense is, in the view of the prosecution, completely spurious. The use of involuntary subjects in a medical experiment is a crime, and if it results in death it is the crime of murder. Any party to the experiment is guilty of murder and that guilt cannot be escaped by having a third person supply the victims. The person planning, ordering, supporting, or executing the experiment is under a duty, both moral and legal, to see to it that the experiment is properly performed. This duty cannot be delegated. It is surely incumbent on the doctor performing the experiment to satisfy himself that the subjects volunteered after having been informed of the nature and hazards of the experiment. If they are not volunteers, it is his duty to report to his superiors and discontinue the experiment. These defendants have competed with each other in feigning complete ignorance about the consent of the experimental victims. They knew, as the evidence proves, that the miserable inmates did not volunteer to be tortured and killed. But even assuming the impossible, that they did not know, it is their damnation not their exoneration. Knowledge could have been obtained by the simple expedient of asking the subjects. The duty of inquiry could not be clearer and cannot be avoided by such lame excuses as “I understood they were volunteers,” or, “Himmler assured me they were volunteers.”
In this connection, it should never be lost sight of that these experiments were performed in concentration camps on concentration camp inmates. However little, some of these defendants say they knew of the lawless jungles which were concentration camps, where violent death, torture, and starvation made up the daily life of the inmates, they at least knew that they were places of terror where all persons opposed to the Nazi government were imprisoned without trial, where Jews and Poles and other so-called “racial inferiors” were incarcerated for no crime whatever, unless their race or religion be a crime. These simple facts were known during the war to people all over the world. How much greater then was the duty of these defendants to determine very carefully the voluntary character of these experimental subjects who were so conveniently available. True it is that these defendants are not charged with responsibility for the manifold complex of crimes which made up the concentration camp system. But it cannot be held that they could enter the gates of the Inferno and say in effect: “Bring forward the subjects. I see no evil; I hear no evil; I speak no evil.” They asked no questions. They did not inquire of the inmates as to such details as consent, nationality, whether a trial had been held, what crime had been committed, and the like. They did not because they knew that the wretched inmates did not volunteer for their experiments and were not expected to volunteer. They embraced the Nazi doctrines and the Nazi way of life. The things these defendants did were the result of the noxious merger of German militarism and Nazi racial objectives. When, in the face of a critical shortage of typhus vaccines to protect the Wehrmacht in its Eastern invasions, Handloser and his cohorts decided that animal experimentation was too slow, the inmates of Buchenwald were sacrificed by the hundreds to test new vaccines. When Schroeder wanted to determine the limit of human tolerance of sea-water, he trod the path well-worn by the Luftwaffe to Dachau and got forty gypsies. These defendants with their eyes open used the oppressed and persecuted victims of the Nazi regime to wring from their wretched and unwilling bodies a drop of scientific information at a cost of death, torture, mutilation, and permanent disability. For these palpable crimes justice demands stern retribution.
* * * * *
c. Selections from the Argumentation of the Defense
_EXTRACTS FROM THE CLOSING BRIEF FOR DEFENDANT KARL BRANDT_
* * * * *
Voluntary Participation
Experiments on persons who offer themselves voluntarily have always been considered admissible. In literary works care is always taken to note this voluntariness; where it is not mentioned, one may conclude that it was nonexistent.
The interest taken in the voluntariness of the person experimented upon has various reasons.
First of all the compulsory experiment—in contrast to the voluntary experiment—means an additional, very heavy mental strain, for the experimenter since the health and life of a human being may be at stake and the future existence of the person experimented upon may be imperiled.
But the experimenter has not only a purely human interest in having the person to be experimented upon offer himself with a certain voluntariness; in many cases he must absolutely depend on the cooperation of the person experimented on; he needs truthful information about observations made during the experiment, which cannot otherwise be carried out properly. Compare for instance the high-altitude and sea-water experiments.
Finally there may exist the wish to be protected against claims for damages and to prevent the uncovering of legal provisions, as well as to guard against the possible political odium that might result from having given orders for a forced experiment.
However, one look at the literature shows that the notion of voluntariness is strongly suspect, and every critical reader will in most cases associate himself with such suspicions.
The subjection to an experiment which is dangerous or even only painful or temporarily onerous must be based on a special motive.
Ethical reasons alone can give rise to voluntariness strictly speaking only in the case of the researcher himself, that is in self-experiments, and in the case of persons who for ethical reasons consciously wish to support by their cooperation the aims of the researcher.
* * * * *
However, if a declaration of voluntariness is made for reasons of inexperience, thoughtlessness, or distress, then it is unethical. Into this category fall cases where persons are induced to undergo experiments through promise of money or other advantages, while they do not foresee the meaning of the experiments. These are the weak, who, unprotected, are made to serve the interests of humanity. Compare with this the case of the use of immigrants for experiments. (Becker-Freyseng 60a, Becker-Freyseng Ex. 59.) The category here of particular interest is that of prisoners who offer themselves voluntarily.
First of all, one cannot assume that the ethical level in a penitentiary is so high above that of free men that here a great number of prisoners would offer themselves for participation in an experiment voluntarily only for purely ethical reasons. On the contrary, one can say that all prisoners are living under a certain compulsion. They expect from their participation in the experiment an improvement of their position or fear a worsening in case of refusal. Even though the regulations about the treatment of prisoners may be fixed, in practice there remains in this particular world a very wide scope for the punishment of prisoners with measures which, as experience shows, may hit the prisoner much more severely and more grievously than the sentence of the judge itself.
If the motive of the prisoner for his “voluntary offer” is merely a general and vague hope, in any direction, then there is no genuine declaration of voluntariness, but the consent is merely the off-shoot of his condition of constraint.
Two things have to be considered with regard to the prisoner’s declaration of voluntary consent; the risk which he undergoes and the advantage that is offered him. One can only give one’s consent to something of which one knows the full meaning and importance. The prisoner must therefore have been fully informed of the possible consequences. Here only lies the real problem of “voluntariness.” It is not enough that the person to be experimented upon knows that, for instance, a malaria experiment is to be made; he must also know just how the particular person is to be used. The first easy series of experiments cannot be compared with the daring final experiments. Who is going to offer himself for the ultimate experiment necessary if the other persons to be experimented on get off more lightly? What was the nature of the consent?
Professor Ivy as expert witness has said nothing about this problem.
As a matter of fact a person to be experimented on can hardly estimate the risk, and the recruiting officer will not be inclined to give a frightful description of what may happen. Professor Ivy, who has recruited volunteers himself, does not consider experiments to be an evil. If you add that the “volunteer prisoner” has to forego all claims in case of injury to his health, then the consent of the prisoner cannot be considered as valid.
On the other hand the prisoner must know the advantage promised him as his compensation must be in suitable relation to the severity of the experiment and the reward must be assured to the prisoner. If the advantage is strikingly disproportionate to the risk and given as an act of grace without claim after the conclusion of the experiment, then there is no voluntary experiment; it remains a forced experiment.
Only if both basic conditions are fully met will it be possible for the prisoner to make a free decision. He may then allow his possible death to be included in the bargain in order to gain the chance of shortening the time of his imprisonment by years.
Such a case is depicted in the well known pellagra experiments, where with the collaboration of attorneys as defense counsellors, the conditions were agreed upon by the prison administration. (Karl Brandt 47, Karl Brandt Ex. 54; Becker-Freyseng 60a, Becker-Freyseng Ex. 59.)
This is the classical case of a voluntary experiment in prison. It will not always be possible or necessary to fix the advantage in the same manner; the official promise of the prison institute may be sufficient to exclude an arbitrary denial of the promise. Examples for that are the leprosy experiments on a person condemned to death, and the continuous experiments in the penitentiary Bilibid. (Becker-Freyseng 60a, Becker-Freyseng Ex. 59.)
These experiments must, be considered admissible as experiments where a chance is given.
The examples from medical literature, however, show that these general conditions for voluntariness were not always fulfilled. So we refer only to the experiments in the penitentiary San Quentin with streptococci on 25 convicts in 1946. (Becker-Freyseng 60a, Becker-Freyseng Ex. 59.)
Accordingly, even experiments carried out on persons without their consent must be considered admissible.
Involuntariness
There are some examples of experiments carried out abroad which were carried out as compulsory experiments on prisoners without their consent. As an example may be mentioned the poisoning experiment carried out in Manila on 11 prisoners sentenced to death. (Becker-Freyseng 60a, Becker-Freyseng Ex. 59.) The persons subjected to experiments were executed immediately after as part of the experiment. The malaria experiment carried out on 800 prisoners has to be mentioned too. According to an explicit statement in the press, no advantages were granted them in return. (Karl Brandt 1, Karl Brandt Ex. 1.)
The method described by the witness Ivy was introduced later on as a practice of the administration.
It is evident that in these cases no declarations of voluntariness could have been made because no criminal who is sentenced to death will make himself available first for experiments where he has no chance, unless there is some hope of a favor shown to him. But in the case of poisoning experiments there was no question of commutation of the sentence because the purpose of the experiment was the study of the effect of poison on corpses. Thus, execution was included as part of the experiment.
Concerning the malaria experiments the press notice explicitly said that no privileges of any kind were granted, thereby referring to the task of the prisoners, as “social parasites”, to help fight the mosquitoes as equal social parasites.
One must conclude that compulsory experiments are admissible, but one cannot draw the conclusion that the state is authorized to use the prisoners at random for any experiment whatever by way of punishment.
The gravity of the experiment must stand in a certain proportion to the gravity of the crime. The expiation must be such as can be expected. This very idea of the reasonableness of the demand is expressed in the malaria experiment mentioned where reference is made to the socially negative attitude of the persons subjected to experiments, thus applying the idea of expiation.
The same fundamental idea might have led to the resolution to use conscientious objectors for the experiments. It seems that here expiation has been demanded from the same point of view of a socially inimical attitude. It does not seem unfair if a conscientious objector, as a deserter, is subjected to experiments if he adopts this attitude only in wartime and if this attitude helps him to escape behind prison walls, thus withdrawing from dangers which the soldier at the front has to bear for the sake of the community. For the soldier, this danger may consist in a dangerous epidemic disease, to which he is exposed in wartime especially.
The idea of compulsory experiments in the sense of an experiment of expiation has been proposed as an expiation measure with regard to prisoners of war and political prisoners and has not been objected to even by the public. So the less ethically orientated opinion of the day frequently expresses the view that experiments on criminals should be carried out for the purpose of expiation.
Even in the press these opinions have their representatives. So among others a reference appeared in the London paper “The People” of 3 March 1946 (Karl Brandt 114[163]) There the following is said: “People believe that all these men (the defendants at the International Military Tribunal) will die. It is the opinion of many that they ought to have died months ago and ought to have been shot three days after arrest by court-martial sentence. Others are of the opinion that they should expiate their crimes by being subjected to cancer, leprosy, and tuberculosis experiments.”
It is significant in this excerpt that it is a well-known English author, Llewellyn who passes it on, and he does not adopt a disapproving attitude to it.
Accordingly, it can be ascertained that such experiments of expiation on political opponents, prisoners of war, and civilians can be looked upon as reasonable and admissible, if these persons, as convicted criminals, are subject to punishment and if the law relating to the serving of sentences permits experiments of that kind.
The Geneva Convention in Article 46 provides for a restriction only insofar as no punishments may be inflicted on prisoners of war apart from those that are admissible for members of the army of one’s own country; the same must be applied to civilians.
In comparison with this, no restrictions exist with regard to the execution of punishment in cases of criminal offenses. Therefore the penal execution law, admissible in each state, can be applied.
If therefore compulsory experiments for expiation can be carried out on an American citizen, they could be applied in the same way to a German prisoner of war, assuming that the latter has been sentenced under penal law. In accordance with this, the same must be admissible in the execution of German penal law if the foreign prisoner has been legally sentenced to punishment.
The foreign criminal is not in a better position than the subject of one’s own country.
The compulsory experiment must have its limits.
Here one must distinguish between responsibility for the arrangement of the experiment and for its conduct. In both cases the physician can have a share in it. The decision for the conduct of experiments on human beings can come from two sides, different in character. The demand can result from urgency in the interests of the community and can be vindicated by the state. During the war, experiments can be demanded by the armed forces in case of epidemics to be expected, such as malaria, typhus, and the like.
On the other hand the suggestion can come from the research side itself, which perceives a possibility of combating an evident state of distress, through the progress of medical science, and also demands experiments for the sake of the community.
The decision concerning the necessity for such experiments is a decision of usefulness taken by the state, consequently a political decision, signifying a balancing of expenditure and of success to be expected or hoped for.
There are different kinds of questions which have to be decided; first of all there are economic questions to be solved by the competent authorities; i. e., financial questions, supply of specialists, laboratories and so on.
Responsible for it are offices with means and possibilities available, which can dispose of them according to their own judgment. These offices are divided further according to their special interest in individual special spheres, such as air navigation, Wehrmacht, and the like.
No decisions can be made by an authority without any means at its disposal; this is valid for instance for the office “Science and Research” of the defendant Karl Brandt, which fulfilled only a recording and coordinating function within certain medical spheres. Evidently the activity of the Reich Research Council was chiefly that of an organ of control and had to eliminate superfluous research during the war by refusal of subsidies in order to help the small number of specialists and material by allotment of priority ratings and financial means. This was the task of the Reich Research Council and in the medical sphere this part of its general regulating activity was very small.
These offices had no power of decision as to whether experiments on human beings could be made or not, and they could not have it. The office which regulated the infliction of punishment and disposed of human beings subjected to experiments was the only office to take decisions. This corresponds to what is known about the conduct of experiments on human beings abroad, where the decision was also taken by administrative offices.
The authority for the infliction of punishments, as the authoritative office of the state, makes its independent decision while politically balancing the necessity for arranging experiments in the interests of the community against what can be expected of the condemned. Applied to German conditions during the war it means the following:
If the condemned are under the control of the authorities of justice competent for the execution of sentences, the responsibility rests upon the Reich Minister of Justice; if the execution of sentences is carried out by the Reich Leader SS and the Chief of Police in the concentration camps, the latter has to be responsible for it.
In this situation the responsibility of a physician can be of value for a decision only so far as he gives a false expert opinion about the prospects of the experiment.
The government has to make the final decision about the admissibility of experiments on human beings; the government only has to decide whether experiments on human beings are necessary in order to combat dangers and injury to health, as it is responsible for everything pertaining to health. In connection with this compare the regulation of the French Government in 1858 for the purpose of clearing up the question concerning the treatment of secondary syphilis and the experiments made on human beings. (Karl Brandt 48, Karl Brandt Ex. 55.)
In war time, the decision is also conditioned by considerations concerning the preservation of the state, which are dependent on war conditions. Epidemic diseases can have a decisive influence on the result of the war and might in the end be of a greater importance than battles, as for instance the plague during the siege of Athens, or typhus during the advance of Napoleon into Russia. Biological warfare is the result and was prepared intensively by the enemies of Germany, as the foreign press openly informed us.
In the same way as the state demands the death of its best men as soldiers, it is entitled to order the death of the condemned in its battle against epidemics and diseases. No antique sacrifices to gods and demons are demanded any longer, only a well considered expiation as a help for the community and indeed exclusively in its interest.
The actual responsibility of the physician lies in the conduct of the experiment itself. The experiment has to be conducted by the physician, but the political responsibility for it rests upon the state, while the physician is responsible for its conduct.
If the physician considers that an experiment is not feasible it can become a crime and the physician has to refuse to carry it out.
In carrying out the experiment every attention must be paid to all regulations of medical practice concerning medical research at the time.
All possible preliminary experiments conducted on models have to be made before experiments on human beings are started. That means that preliminary experiments in laboratories, experiments on animals and so on, have to be conducted. In case of need even experiments carried out on the researcher’s own person belong to the preliminary experiments.
Generally, responsibility for the extent of the experiments rests upon the physician. In the arrangement of the experiments the number of the persons selected for experiments must be as great as necessary in the interests of the result of the experiment, but in the interests of the persons selected for the experiment the number must be as small as possible.
The conduct of the experiment must be correct and excesses which could increase its danger have to be avoided.
Finally, the experiment must be stopped by the physician if it is evident that the expected result is attained or most probably will not be attained.
The assignment of persons needed for an experiment in the course of infliction of punishment can take place only at the instigation of the executory office in whose custody the prisoner is held.
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It has been pointed out that many persons used for experiments were foreigners, and that this fact should have prevented experiments on them. In this connection the following reference is made:
It is a fact that strong resistance movements in the West, and especially in the East, waged a total partisan war against the German troops and caused bloody sacrifices. International law does not object to capital punishment for participants in illegal combat and illicit sudden attacks against members of the occupation army. If, therefore, instead of the permissible execution of capital punishment, mitigation through an attempt at expiation occurs, special consideration should be given to this fact.
The reproach that no experiments should have been made on political prisoners contradicts the fact that the political opponent, in all countries and at all times, has in most cases been punished more severely than the criminal, namely on the basis of criminal law governing treason, espionage, and contravention of war measures, i. e., political orders. Reference is hereby made to the fact that every occupation army threatens capital punishment for many, otherwise insignificant, offenses.
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_EXTRACTS FROM THE FINAL PLEA FOR DEFENDANT RUFF_[164]
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Prisoners as voluntary experimented subjects
The question has repeatedly come up in this trial whether or not the experimental subjects in the Dachau high-altitude experiments by Ruff-Romberg were volunteers, although the people were in detention, that is to say, indisputably under duress.
The expert Professor Dr. Leibbrandt has held to his one-sided opinion in this respect too, and has advocated the theory that prisoners can never be regarded as volunteers. This opinion is doubtlessly false; in other times, the expert perhaps would not have supported it. For the administration of justice in other cases also accepts legally binding statements of prisoners, and does not think of declaring them legally ineffective, only for the reason that the prisoner in consequence of his imprisonment finds himself in an embarrassing situation, and therefore not completely master of his own free will.
One surely is not mistaken in supposing that none of the defendants, even if he has ever such great experience as a medical man, at that time thought without exception of all the possibilities which we have to consider now, when for many months we have had to search for the legal basis of the whole problem of human experiments, and have had to think of all eventualities. According to his sentiment, at that time each physician and research man said to himself: If the experimental subject agrees to the experiment, everything is all right. For this always appeared to the physicians to be the highest principle: An experiment is legal if the experimental subject agrees to it, provided that the physician observes the necessary care when performing the experiment. As proved here by this trial, there exists in no country a written law regulating the legal conditions of experiments on humans. On the other side, however, the human experiment is such a far-reaching and often such an indispensable matter that one might speak of an unwritten law, which generally and tacitly is accepted and acknowledged by the whole world. Counsel for some of the defendants have demonstrated to the Tribunal in their document books the opinion of the whole world on this unwritten law, in the most varying degrees, from the absolutely harmless to the absolutely deadly experiment, and has certainly thereby compiled valuable material which is suitable for forming the basis of a codification of this unwritten medical law and to show safe future roads for the development of justice in this sphere. Lacking a written law, the physician and research man even today can only recognize the conventional legal concept as a rule for his conduct as expressed in international medical literature.
* * * * *
When reading this international literature, however, there cannot be any doubt that the volunteering of the experimental subjects warrants in every case the legality of human experiments, and that, therefore, the more sentimental attitude of our research workers was right when, because of their knowledge of international literature, they made the question of the legality of human experiments depend in the first place on the voluntariness of the experimental subjects.
As far as one can see, international medical literature up to date nowhere represents the opinion that the consent of a prisoner is ineffective because, by reason of his imprisonment, he had no free will. On the contrary, in many cases it has taken an important step forward, and had frequently, without meeting any opposition, reported on experiments performed on prisoners whose consent was not regarded as essential. Many experiments, some of which were reported on here in Court, and some of which are described in the documents submitted by the defense, demonstrate clearly that obviously the opinion prevails everywhere that in the case of prisoners, in particular those who have been sentenced to death, the consent of the prisoner to the experiment can be replaced by the permission of the authorities, even in the case of experiments which were very dangerous and where fatalities occurred in more or less large numbers. The published reports also talk about the number of deaths in the experiments described, some slightly camouflaged but to a large extent openly, without the research worker or the reader realizing that murderous actions were being reported, because otherwise the reaction would have been a completely different one.
The question becomes particularly acute if these experiments were carried out in a totalitarian state or during a total war. It is not the point in this connection whether a dictatorial regime is desirable or should be rejected, nor whether a war as such appears to be criminal (for example because it will be judged as an aggressive war later on); the attitude that, under such exceptional conditions as exist in a dictatorship or total war, even life-endangering experiments on human beings may perhaps be more justified than under normal conditions is obviously based on the thought that the state governed by dictatorship can and will ask for greater sacrifices, from criminals too, especially during total war.
As a matter of fact the following thought appears to have occurred to many a defendant during this trial: During a total war the state asks everybody to be ready at any time to serve at the front, and during the aerial war every woman and every child at home is exposed daily and every hour to mortal danger; many a citizen would therefore think it unsatisfactory if a criminal, who is burdened with heavy guilt or may even have committed a crime punishable with death, remains free from all danger, in other words is in a better position than the upright citizen.
It appears now that many an experimental subject who was used at that time for experiments was of the same opinion, because the witness Karl Wolff stated on oath that the prisoners to whom he spoke in Dachau said, that “they would contribute voluntarily to Germany’s war effort and show a sign of their actual good will.” (Ruff 21, Ruff Ex. 20.) The same ideas were also stated by various defendants during their interrogation.
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d. Evidence
Testimony Page Extracts from the testimony of prosecution witness Eugen Kogon 993 Extracts from the testimony of prosecution expert witness Dr. 994 Andrew C. Ivy
EXTRACTS FROM THE TESTIMONY OF PROSECUTION WITNESS EUGEN KOGON[165]
DIRECT EXAMINATION
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MR. MCHANEY: Before we go into the details of the typhus experiments, I would like to ask you if you know anything about the manner in which subjects were selected for the experiments which you have mentioned and which took place in Buchenwald?
WITNESS KOGON: The selection of experimental subjects was not the same at different times. In the very first period the inmates of the camp were called upon to volunteer. They were told that it was a harmless affair; that the people would get additional food. After one or two experiments it became impossible to get any volunteers whatever. From then on, Doctor Ding asked the camp physician or the SS camp commandant to select the suitable persons for the experiments. He had no special directives for this. The camp administration chose people arbitrarily from among the prisoners, whether they were criminals, or political prisoners, or homosexuals. Intrigue among the prisoners themselves also played a role in the selection, and occasionally people came for whom there was no special reason, but they came into the experiments. From the fall of 1943, approximately, the camp leaders did not want to keep the responsibility for the selection of experimental subjects. Doctor Ding himself no longer wished to have verbal instructions from Mrugowsky to carry out the experiments, but he demanded written orders. For this purpose he approached Mrugowsky with the request that the Reich Leader SS should appoint his own people for the experiments. SS Gruppenfuehrer Nebe of the Reich Criminal Police Office in Berlin then, according to a directive from Himmler which I saw, ordered that only those people were to be used who had at least a ten-year sentence to work out. Then, the officials of the Reich Criminal Police Office in Berlin twice selected 110 and 99 people in Buchenwald, who were made available for the experiments. They were exclusively criminals with a previous record. In the last period, people were selected from various concentration camps and prisons in Germany. Transports came to Buchenwald with these people. In addition to this, political prisoners from the camp itself were almost always included in these series of experiments, either because they were inconvenient to the SS in some way or because they were victims of camp intrigues.
Q. Were all of these experimental subjects condemned to death, who were experimented on in Block 46?
A. I do not know of a single case in which anyone came to the experimental station in Block 46 because he had been condemned to death. Once in the case of four Russian prisoners of war, it was claimed that they were to be shot, but there was no judgment, no sentence. They belonged to the category of Russian prisoners of war, of whom about 9,500 were shot, hanged, or strangled in Buchenwald.
Q. Were any special considerations or favors granted to the experimental subjects who survived these experiments?
A. During the first two or three weeks before the experiments were carried out, the experimental subjects received better food in order to get them into the condition of a normal German soldier. Apart from that, none of the prisoners who survived received any advantages, and they were never promised any such thing.
Q. Was an effort made to pick experimental subjects who were in good physical health, that is, comparable to a Wehrmacht soldier?
A. The condition did exist, and as far as was compatible with the other conditions of selection, it was fulfilled.
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Q. Mr. Kogon, at the conclusion of yesterday’s session you had explained to us the manner in which experimental subjects were selected for the medical experiments in the Buchenwald camp. Will you tell the Tribunal whether any non-German nationals were experimented on?
A. Among the experimental subjects who had been selected for Block 46, there were not only Germans but also Poles, Russians, and Frenchmen, particularly during the last years.
Q. Were there any prisoners of war experimented on in Block 46 to your knowledge?
A. Yes.
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EXTRACTS FROM THE TESTIMONY OF PROSECUTION EXPERT WITNESS DR. ANDREW C. IVY[166]
CROSS-EXAMINATION
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DR. SERVATIUS (Attorney for defendant Karl Brandt):
Witness, yesterday you testified that voluntary consent is the first prerequisite for human experimentation. Previously you had said that you yourself had been reluctant to apply for volunteers. Is that so?
WITNESS DR. IVY: No.
Q. Didn’t you say just now that you didn’t want to ask your students to volunteer but left that to other agencies so that your authority might not constitute some form of coercion?
A. Yes, that is insofar as my personal direct request to the individual is concerned, I thought, because of my position as a professor, it might unduly influence the student to say yes.
Q. You were probably of the opinion that your authority might persuade him to do something that he otherwise would not do.
A. Yes—through individual contact.
Q. I say, Professor, don’t you know that in general the volunteer aspect of the person’s consent has been under suspicion?
A. I don’t understand that question. Will you repeat it?
Q. Is it not so that in medical circles and also in public circles these declarations of voluntary consent are regarded with a certain amount of suspicion; that it is doubted whether the person actually did volunteer?
A. Can you be more specific?
Q. In your commission you probably debated how the volunteers should be contacted; is that not so?
A. Yes.
Q. On this occasion was there no discussion of the question that you should assure yourself that no coercion was being exercised, or that the particular situation in which the person found himself who applied was being exploited?
A. Yes. I was concerned with that question.
Q. There were discussions about that?
A. Not necessarily with others, but there was always consideration of that in my own mind.
Q. Witness, a number of documents were submitted yesterday, Friday, from which it was to be seen that volunteers did volunteer, for instance eight hundred or more prisoners applied for a malaria experiment[167]; and there was a radio report; all of these persons had a motive for volunteering. What are the motives of a prisoner that persuade him to volunteer?
A. These prisoners said they volunteered in order to help people who might have malaria.
Q. In this report the individual persons were asked, five or six of them were—one says that he volunteered because he is condemned to life imprisonment, and he has applied to oblige the army. Another says that he is doing it because his brother is a soldier at the front and has malaria. And another one says—two of my brothers in the army had malaria; and a third one says in the last war—
MR. HARDY: Dr. Servatius refers to Document NO-3450, Prosecution Exhibit 519 for identification, and I request that he supply the passages so that Dr. Ivy can properly testify.
DR. SERVATIUS: Witness, from this radio report I shall read the answers of the experimental subjects to you. One Mr. Quail says: “I expect, Captain Jones, that these men have many reasons for their volunteering for this war.”
CAPTAIN JONES: “Yes, they have. Many have sons and brothers in the armed services, others have other patriotic motives, but I am not the one to tell about them.”
QUALL: “I get the point.”
CAPTAIN JONES: “With the permission of Warden Rangen we are going to talk to several of these volunteers right now. Here is a man who is older than some of the others. What is your name?”
JOHNSON: “I am George Johnson, number so and so.”
QUALL: “Johnson, I have heard you have a pretty high fever as a result of these tests.”
JOHNSON: “That is right; at one time my temperature was 108 degrees.”
QUALL: “108 degrees, and you are here to tell the story.”
JONES: “What was your main reason for volunteering for these tests?”
JOHNSON: “I served in the U. S. Army during the First World War, and here, by going through with these tests, I helped some of my buddies in the war just ended.”
QUALL: “Thanks, Johnson. Now, here is Charles Eirtz, number so and so.”
EIRTZ: “My brother was killed in the crossing of the Saar [Sarre] River; that made up my mind for me; we weren’t being shot at here; it was the least we could do.”
QUALL: “And here is George Storm; George Storm, number so and so.”
STORM: “Two of my brothers in the service caught malaria. If I can help the Army, I can help my brothers.”
QUALL: “Here is a man who is one of the many inmate nurses helping out in the war. What is your name?”
LEOPOLD: “Nathan Leopold, number so and so. I was a malaria volunteer, and now I am acting as a nurse.”
QUALL: “How do most of the patients react under these tests?”
LEOPOLD: “All the men are good soldiers; their morale is high.”
QUALL: “Now, two inmates who are no strangers to malaria.”
WALKER: “My name is George Walker, number so and so, and my nephew is a malaria patient in an Army hospital.”
MCCORMACK: “I am James McCormack, number so and so. My brother is in the Army, too. If these tests will help cure him of malaria, it will all be worth while.”
QUALL: “Medical officers are particularly interested in this next case. Your name?”
NORMAN: “Al Norman, number so and so.”
QUALL: “Why is your case unusual, Norman?”
NORMAN: “Because I have had five relapses since I first contracted malaria; that is the highest number any patient had.”
I shall stop reading. I believe this gives the general impression. Is it correct that all of them are giving idealistic reasons as the motive?
MR. HARDY: Prior to the question I suggest that the document be handed to Dr. Ivy, if he wishes to refer to other sections of it in his answer.
DR. SERVATIUS: I shall do so immediately; however, I have one question first. Are these not all idealistic points of view as the person’s motive?
WITNESS DR. IVY: Yes. On the basis of my discussions with people who observed these experiments at Stateville, Illinois, the idealistic motivation of this group was very high. As a matter of fact, the effect of this public service rendered by these prisoners is being followed up to see whether or not it has special reformative value, and up to the present time this question indicates that this public service has been of great reformative value, in that the incidence of return to criminality under parole is markedly decreased.
Q. Do you know Nathan Leopold, or do you know who he is?
A. Yes.
Q. Is it true that he was condemned to fifteen years in the penitentiary for murder?
A. To much more than that.
Q. Do you think he is the right person to give an opinion regarding the high morale status of the inmates of a penitentiary?
A. He can never expect to get out of the penitentiary, and I see no reason why he should not express himself, without any duress or coercion, accurately and as he feels.
Q. I will show you this report, and please ascertain if you have any remarks to make about it.
A. No, I have none.
Q. The idealistic points of view are associated with the state of war, are they not, aside from the last one?
A. No, I do not agree, because if any coercion were brought to bear upon these prisoners to serve in medical experiments, that would soon—within a week—come to the attention of the newspaper reporters and would appear on the front page of every paper—most every paper in the United States.
Q. I should like to tell you again what Jones says here. He says: “Others have patriotic motives * * * many have sons and brothers in the armed services.” Captain Jones gives that as the main reason. And then other individuals are brought up who make statements in the same sense to the same effect. Is that not so?
A. I believe that is entirely reasonable; because an individual is a prisoner in a penitentiary is no reason why he should not be patriotic or love his country.
Q. Perhaps you will admit that no one would give that as his motive for helping before a German de-Nazification court, namely, that he wanted to help the army.
A. I did not get the question. Will you please repeat it?
Q. Never mind. Now, Witness, of the experiments we have here, none of these volunteers were outside the penitentiary; now, why did not persons outside the penitentiary volunteer in the malaria experiments: businessmen or teachers, for example? Because we must assume that not only inmates of penitentiaries have ideals.
A. As I explained yesterday, conscientious objectors were used, and prisoners were used, instead of teachers and businessmen because those individuals had no other duties to perform. Their time was fully available for purposes of experimentation.
Q. Is it not an evil to carry out experiments?
A. No.
Q. You don’t think so?
A. It is not an evil to carry out experiments.
Q. But isn’t it an evil to have to go through an experiment as an experimental subject?
A. I should say not. I have served myself as an experimental subject many times, and I do not consider it an evil.
Q. Don’t you think it is very unpleasant to become infected with malaria, to have fevers, and other undesirable symptoms of that sort?
A. Yes. It is unpleasant, but not an evil.
Q. Perhaps we don’t understand each other. You don’t want to say it is a pleasure to have malaria?
A. No. It is not a pleasure.
Q. Is it not a very unpleasant and serious disease that lasts for many years?
A. It is unpleasant, yes.
Q. If all these persons apply for idealistic reasons, why are they offered recompense?
A. I suppose it is to serve as a small reward for the unpleasantness of the experience.
Q. Don’t you believe that the money was the motive for many of them—a hundred dollars?
A. That is rather small. From the point of view of prisoners in the penitentiary in the United States, a hundred dollars isn’t much money.
Q. For a prisoner that would be quite a lot of money, it seems to me, for someone at liberty it is not so much.
A. No. Our prisoners in the penitentiary in the United States, when they work in factories in the prisons, receive pecuniary compensation for that work.
Q. I believe that is so throughout the world.
A. That is put in a trust fund for them to use when they get out.
Q. Do you think that the money is sufficient recompense or compensation for what the experimental subject has to go through?
A. I should not consider it so, and I don’t believe that any of the prisoners did. As a matter of fact, I was told that some of them would not accept the money.
Q. If one declares oneself to be a volunteer, must one not weigh the advantages against the disadvantages?
A. I believe so.
Q. The disadvantage here is the risk of a serious disease, the advantage is fifty or a hundred dollars.
A. I should say the advantage is being able to serve for the good of humanity.
Q. For what reason was the money not paid immediately, but in two payments? So far as I remember from a document yesterday, the hundred dollars was paid as follows: fifty dollars after the first month, and the other fifty after one year. In other words, a prisoner has to do his job first. Now, why was that so?
A. I presume that that is just the common way of doing business in the United States when an agreement is involved. I presume the lawyers had something to do with that.
Q. Was the reason not this: that the prisoner would lose his enthusiasm for the experiment and would cease to cooperate? Could that have been the reason for being a little circumspect in the payment?
A. I doubt that.
Q. Do you know of a case where the experimental subject did not wish to continue the experiment?
A. That has not been my experience. And according to the response that I got to that question when I put it to Dr. Irving, he said that no one expressed a desire to withdraw at any time.
Q. Professor, I have seen a document on experiments in hunger that were carried out on conscientious objectors. That appeared in a periodical. It is described how these conscientious objectors went through considerable unpleasantness and did not want to continue the experiment. They kept their promise only at great effort. Is that known to you?
MR. HARDY: I suggest that counsel refer to the document that he is talking about at this time and make it available for Dr. Ivy, or make the facts available, the particular data, so that Dr. Ivy will be fully aware of the circumstances.
PRESIDING JUDGE BEALS: Does counsel have a document which he can make available? Then he will use it.
DR. SERVATIUS: I have only one copy in English here. (Presented to witness.) I shall have to find the passage I am referring to.
I can’t seem to find it. This is a long document and somewhere there is the statement that the experimental subjects have to summon all their forces to remain in the experiment. However, I shall drop the subject for the moment. Witness, is there not another inducement that persuades prisoners to volunteer for experiments? Is not the prospect of pardon or other advantages the reason for applying?
WITNESS DR. IVY: When these malaria experiments started, that prospect was not held out to the prisoners, hence the possibility of a reduction in sentence, in being placed on parole sooner than otherwise, was not a prospect. However, since some of these malaria experiments have been terminated, a reduction of sentences in addition to that allowed for ordinary “good behavior” has been granted by the parole board. For that reason Governor Green of the State of Illinois appointed a committee with me as chairman to consider this question which you have in mind: How much reduction of sentence can be allowed in such instances so that the reduction in sentence will not be great enough to exert undue influence or constitute duress in obtaining volunteers? I have my conclusions ready and can read them to you, if you desire to hear them.
Q. Please do so. May I ask when this committee was formed?
A. The formation of the committee, according to the best of my recollection, occurred in December 1946, when the prisoners with indeterminate sentences were up for consideration for parole. This was the first time the question of reduction in sentence came up.
Q. One more question, Witness. Did the formation of this committee have anything to do with the fact that this trial is going on, or with the fact that this malaria case was published in Life magazine and that it was explicitly stated that the experimental subjects were receiving no compensation, no pardon, reduction of sentence? Is there any connection between those things?
A. There is no connection between the appointment of this committee and this trial, for this reason, that there is a division of opinion regarding the work that the parole boards do. Some believe that the parole boards are too soft; others believe that they are too hard. If a reduction in sentence were too great, parole boards would be criticized in the newspapers. Obviously the parole board wants to act on the basis of the best opinion on medical ethics that they can obtain. Accordingly, this committee was appointed.
Q. Would you please be so good as to read what you intended before?
A. There are two conclusions:
“Conclusion 1: The service of prisoners as subjects in medical experiments should be rewarded in addition to the ordinary time allowed for good conduct, industry, fidelity, and courage, but the excess time rewarded should not be so great as to exert undue influence in obtaining the consent of the prisoners. To give an excessive reward would be contrary to the ethics of medicine and would debase and jeopardize a method for doing good. Thus the amount of reduction of sentence in prison should be determined by the forbearance required by the experiment and the character of the prisoner. It is believed that a 100 percent increase in ordinary good time during the duration of the experiments would not be excessive in those experiments requiring the maximum forbearance.
“Conclusion 2: A prisoner incapable of becoming a law-abiding citizen should be told in advance, if he desires to serve as a subject in a medical experiment, not to expect any reduction in sentence. A prisoner who perpetrated an atrocious crime, even though capable of becoming a law-abiding citizen, should be told in advance, if he desires to serve as a subject in a medical experiment, not to expect any drastic reduction in sentence.”
I might explain, when I used the expression “reduction in sentence in prison,” that that implies that when the prisoner is released on parole, he is still under supervision, observation, or sentence outside of prison. He is subject to arrest and return to prison at any time; so when we say reduction of sentence in prison, we do not mean that there is an actual reduction of sentence prescribed by the court. That is the law in the State of Illinois.
Q. Witness, if the experimental subjects are prisoners, are they told about this policy ahead of time?
A. They will obviously have to be told of this policy from now on, since the matter has come up for the first time.
Q. Yesterday a prosecution document was shown to you. That was Document NO-3968, Prosecution Exhibit 517, Department of Justice, Bureau of Prisons, a document from Texas. This was in no document book but was put in only yesterday. I shall have this shown to you immediately. This is a form from the Department of Justice, Bureau of Prisons, a statement of voluntary consent and it says here the following:
“I agree to cooperate to the fullest extent with the physicians conducting the study during an over-all observation period of approximately 18 months. I understand that at the conclusion of the observation period, I am to be furnished with an appropriate Certificate of Merit and a statement of my voluntary cooperation in the study and the fact that I have thus rendered voluntarily an outstanding service to humanity will be placed in my official record.”
Is that not a rather extensive promise which might induce a prisoner to apply without having a purely idealistic motive?
A. A Certificate of Merit is an attractive little certificate that the prisoner could have framed and he could hang on the wall of his prison cell. After he was released, he could take it home and show it to his friends, and I think it might serve as an incentive to prevent the previous wrongdoer from going into the ways of wrongdoing again.
Q. Do you not think that it has a very practical usefulness? Do you not think that it would lead the police to treat one a little more leniently?
A. I doubt it, although I can’t testify regarding what the police might do.
Q. Don’t you think that it would be of some aid when looking for a job after his release?
A. When a prisoner is released on parole, before he is released, a job is found for him.
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REDIRECT EXAMINATION
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MR. HARDY: Now, Doctor, concerning your testimony regarding the conscientious objectors, I have a few points which may tend to clarify this situation in the minds of defense counsel. Would you tell us how a person is classified as a conscientious objector?
WITNESS DR. IVY: Well, first, everyone within a certain age group in the United States had to register.
Q. Register for the draft?
A. For the draft or selective service.
Q. That is, conscription into the United States Armed Forces?
A. Yes. Then at some time later the actual draft occurred. The conscientious objector could announce that he was a conscientious objector to serving in battle or serving with the military organization at the time of registration or at the time of induction or being drafted.
Q. And after he registered his objections to participating in any manner in the Army, was he then allowed to return to his home, or was he asked to cooperate in matters which did not involve things of a military nature?
A. No. He was assigned to the Civilian Public Service Agency and asked if he wanted to cooperate by rendering public service.
Q. And that public service was work as orderly in a hospital and work in various libraries, perhaps, and other public institutions?
A. Yes, or forest fire prevention, and cleaning up the woods.
Q. Was this man, this conscientious objector, in confinement?
A. They were only placed under confinement when they would not cooperate in any way.
Q. Was there a national committee to take care of the interests of the objectors?
A. Yes. As a general rule the conscientious objectors were supervised by a civilian religious group, such as the Quakers or the Mennonites.
Q. Was the conscientious objector under any duty to volunteer for medical experiments?
A. None whatsoever.
Q. However, he was under obligation to work in various libraries or forest fire prevention, etc., if requested to by the committee?
A. Yes. It was necessary for him to render some sort of public service.
Q. Then you determined that you needed experimental subjects. How did it happen that you decided that conscientious objectors might be made available to you?
A. As I recall, the National Research Council, in view of the fact that the medical students and dental students were mustered into the Army and could no longer serve as subjects in experiments in universities and medical school laboratories, took the matter up with the Director of the Civilian Public Service, who then decided that the conscientious objectors might be allowed to volunteer for such work in connection with medical schools and research institutes.
Q. And by that token you were permitted to approach conscientious objectors to ask them whether or not they would volunteer for medical experiments?
A. I or the investigator did not approach the conscientious objectors directly. We requested that a certain number of volunteers be allowed or sent to us through the Director of the Civilian Public Service Agency.
Q. And those conscientious objectors were sent to your university laboratories?
A. Yes. That is correct.
Q. While they were at your laboratory were they living in the dormitories at the university?
A. Yes, in the dormitories or in the hospitals.
Q. Were they under any surveillance at all?
A. One person in the group was appointed as a leader, supervisor of the group, and it was his duty to see that the men carried out their instructions properly and on time.
Q. Was it possible for any one of these objectors to receive leave or to have week end liberty?
A. It was not in most experiments.
Q. Well, assume for the moment that you were not going to use the experimental subject for a period of two or three weeks. Was he in such a position that he could not go on leave or go to the city or was he supposed to remain at your university at all times?
A. No. He could leave for certain periods of time, varying in length from a few hours to a few days, depending upon the nature of the experiment. If it were a dietary experiment, then he had to eat at the diet table all the time.
Q. Then he actually had freedom of locomotion, in contradistinction to a prisoner in an institution or penitentiary?
A. Yes.
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[Further materials from the record in the Medical Case appear in Volume II. See Contents, p. VI, this volume.]
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[162] Closing statement is recorded in mimeographed transcript, 14 July 1947, pp. 10718-10796.
[163] Document rejected by the Tribunal.
[164] Final plea is recorded in mimeographed transcript, 17 July 1947, pp. 11154-11176.
[165] Complete testimony is recorded in mimeographed transcript, 6, 7, 8 Jan. 1947, pp. 1150-1290.
[166] Vice President of the University of Illinois in charge of the College of Medicine, Dentistry, Pharmacy, and Nursing, and distinguished professor of physiology at the Graduate School of the University of Illinois.
Complete testimony is recorded in mimeographed transcript, 12, 13, 14, 16 June 1947, pp. 9029-9324.
[167] Counsel for the defendant Karl Brandt refers to experiments carried out in the United States during World War II.
TRANSCRIBER NOTES
Punctuation and spelling has been maintained except where obvious printer errors have occurred such as missing periods or commas for periods. American spelling occurs throughout the document. Multiple occurrences of the following spellings which differ and are found throughout this volume are as follows:
court martial court-martial blood letting blood-letting border line border-line front line front-line cross examination cross-examination long continued long-continued Jewish Bolshevik Jewish-Bolshevik concentration camp concentration-camp peace time peacetime Fraeulein Frau Frankfurt/Main Frankfurt-on-Main
Although some sentences may appear to have incorrect spellings or verb tenses, the original text has been maintained as it represents what the tribunal read into the record and reflects the actual translations between the German, English, Russian and French documents presented in the trial(s). This volume had no German, Polish, Russian or other eastern European diacritics, only French diacritics. As a result, Goering and Fuehrer are spelled without umlauts throughout.
An attempt has been made to produce this ebook in a format as close as possible to the original document's presentation and layout.
Some illustrations were moved to facilitate page layout.
[The end of Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10 (Oct 1946-Apr 1949) (Vol. 1), by Anonymous.]