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Title: Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10 (Oct 1946-Apr 1949) (Vol. 2)

Date of first publication: 1949

Author: anonymous

Date first posted: June 6, 2017

Date last updated: June 6, 2017

Faded Page eBook #20170612

This ebook was produced by: Larry Harrison, Cindy Beyer & the online Distributed Proofreaders Canada team at http://www.pgdpcanada.net



TRIALS

OF

WAR  CRIMINALS

BEFORE  THE

NUERNBERG  MILITARY  TRIBUNALS

UNDER

CONTROL  COUNCIL  LAW  No.  10

 

 

 

 

VOLUME  II

 

 

NUERNBERG

OCTOBER 1946-APRIL 1949

 


For sale by the Superintendent of Documents, U.S. Government Printing Office

Washington 25, D. C. — Price $2.75 (Buckram)


CONTENTS

The Medical Case

(Introductory material and basic directives under which trials were conducted together with Chapters I-VIII-E of Medical Case are printed in Volume I.)

Page
VIII.Evidence and Arguments on Important Aspects of the Case (cont’d)1
F. Necessity1
G. Subjection to Medical Experimentation as Substitute for Penalties44
H. Usefulness of the Experiments61
I. Medical Ethics70
1. General Principles70
2. German Medical Profession86
3. Medical Experiments in other Countries90
IX.Ruling of the Tribunal on Count One of the Indictment122
X.Final Plea for Defendant Karl Brandt by Dr. Servatius123
XI.Final Statements of the Defendants, 19 July 1947138
XII.Judgment171
The Jurisdiction of the Tribunal172
The Charge173
Count One173
Count Two and Three174
Count Four180
The Proof as to War Crimes and Crimes Against Humanity181
Permissible Medical Experiments181
The Medical Service in Germany184
The Ahnenerbe Society188
Karl Brandt189
Handloser198
Rostock208
Schroeder210
Genzken217
Gebhardt223
Blome228
Rudolf Brandt235
Mrugowsky241
Poppendick248
Sievers253
Rose264
Ruff, Romberg, and Weltz272
Brack277
Becker-Freyseng281
Schaefer285
Hoven286
Beiglboeck290
Pokorny292
Oberheuser294
Fischer296
Sentences298
XIII.Petitions301
XIV.Affirmation of Sentences by the Military Governor of the United States Zone of Occupation327
XV.Order of the United States Supreme Court Denying Writ of Habeas Corpus330
Appendix331
Table of Comparative Ranks331
List of Witnesses in Case 1332
Index of Documents and Testimony336
    
The Milch Case
    
Introduction355
Order Constituting Tribunal357
Members of Military Tribunal II359
Prosecution Counsel359
Defense Counsel359
I.Indictment360
II.Arraignment365
III.Opening Statements366
A. Opening Statement for the Prosecution366
B. Opening Statement for the Defense377
IV.Selections from the Documents and Testimony of Witnesses of Prosecution and Defense385
A. Slave Labor385
1. General Slave Labor Program in Germany385
2. The Central Planning Board444
3. The Jaegerstab524
4. Generalluftzeugmeister596
B. Medical Experiments623
C. Curriculum Vitae and Excerpts from the Testimony of the Defendant Milch633
V.Closing Statements690
A. Closing Statement of the Prosecution690
B. Closing Statement of the Defense730
VI.Final Statement of the Defendant, 25 March 1947772
VII.Judgment773
A. Opinion and Judgment of the United States Military Tribunal II773
B. Concurring Opinion by Judge Michael A. Musmanno797
C. Concurring Opinion by Judge Fitzroy D. Phillips860
VIII.Petitions879
A. Extract from Petition for Clemency to Military Governor of United States Zone of Occupation879
B. Petition to the Supreme Court of the United States for Writ of Habeas Corpus883
IX.Affirmation of Sentence by the Military Governor of the United States Zone of Occupation887
X.Order of the United States Supreme Court, 20 October 1947, Denying Writ of Habeas Corpus888
Appendix889
List of Witnesses in Case 2889
Index of Documents and Testimony891

VIII. EVIDENCE AND ARGUMENTS ON
IMPORTANT ASPECTS OF THE CASE—Continued

F. Necessity

a. Introduction

The defense generally argued that the medical experiments took place because of military necessity or the national emergency presented by war. The defendant Sievers argued that his participation in various experiments was a necessary part of his participation in a resistance movement in Germany. The defendant Hoven argued that the concentration camp inmates, who were killed by him or with his approval and knowledge, were selected by the camp leadership which had been formed by the political inmates themselves. Hoven also argued that the inmates killed were all dangerous criminals who collaborated voluntarily with the SS, and if they would not have been removed, the political inmates would have been exterminated by these criminals and by the SS. He concluded that it was therefore necessary, in order to prevent greater harm, either to kill these “stool pigeons” personally or to give his approval for their extermination.

On the argument of military necessity and national emergency, extracts from the final plea for the defendant Gebhardt are included on pages 5 to 12. On the general question of necessity, extracts are included from the examination of the defendant Karl Brandt by Judge Sebring on pages 29 to 30, and from the cross-examination of the prosecution’s expert witness, Dr. Andrew C. Ivy on pages 42 to 44. The prosecution discussed the general question of necessity in its opening statement.

The argument of the defendant Sievers that his participation was necessary in connection with resistance to the Nazi leadership appears in his final plea, an extract from which is given on pages 13 to 25. From the evidence supporting the claim of Sievers, extracts from the testimony of defense witness Dr. Friedrich Hielscher are included on pages 30 to 41. The prosecution’s reply to Sievers’ special defense was made, in part, in the prosecution’s closing statement, an extract of which appears on pages 4 to 5. The argument of the defendant Hoven that the killing of concentration camp inmates, of which he was accused, was justifiable homicide appears in his final plea, an extract of which is set forth on pages 25 to 28. The prosecution’s reply to this special defense is set forth in the closing brief against the defendant Hoven, an extract of which will be found on pages 2 to 4.

b. Selections from the Argumentation of the Prosecution

EXTRACT FROM THE CLOSING BRIEF AGAINST DEFENDANT HOVEN


(Hoven) tried to justify the killings [of concentration camp inmates] by stating that these inmates were informers, spies, and stool pigeons of the SS and therefore had to be exterminated. He said that if they had been permitted to carry on with their activities, the illegal camp management would have been wiped out and the criminal inmates in the camp would have gained the upper hand. Hoven’s attempt at justification for the killing of inmates of concentration camps is, of course, no defense. It may well be true that Hoven sympathized and even collaborated with the illegal camp management. It may also be true that some of his victims may have been killed by him on the basis of suggestions put forward by this illegal camp management. But it goes without saying that these political prisoners, who instigated the murder of their opponents, were in no position to judge whether it was really necessary to kill them for the sake of the camp community. They only judged this emergency from their own point of view, i.e., from the point of view of the benefit of themselves. Hoven himself had no judgment at all in this respect and simply made himself the willing and bought tool of a small clique in the camp, who undoubtedly often tried to eliminate not only persons whose activities were considered detrimental to the well-being of their fellow inmates, but also personal opponents and enemies. That Hoven was corrupted by the inmates and paid for his murders is proved by the testimony of several witnesses.

Kogon testified:

“I can only conclude that both motives, the political motive and the motive of corruption, were active in the case of Dr. Hoven. If Dr. Hoven expressed any desire—and he expressed many desires—then these wishes were always filled.” (Tr. p. 1213.)

He himself expressed many wishes constantly and all possible advantages were given him by such people whom he had saved.” (Tr. p. 1214.)

Kirchheimer testified to the same effect. (Tr. p. 1346.) The defense witness Pieck painted pictures for Hoven and his family, and the defense witness Horn in his affidavit stated that Hoven was very corrupt. The prisoners knew it and they corrupted him in every possible manner and made him gifts of furniture, underwear, and food. There were periods in which complete workshops were erected for Hoven in which thirty or more inmates were working.

Pieter Schalker testified before the Dutch Bureau for the Investigation of War Crimes in Amsterdam that Hoven played an exceptionally evil role and had innumerable deaths on his conscience owing to completely inadequate medical attention. In later years, when it became obvious that Germany would be defeated, he changed his attitude towards the inmates. (NO-1063, Pros. Ex. 328.) When Schalker was interrogated by the commissioner of the Tribunal on the motion of defense counsel, he amplified his statement by saying that Hoven stole the food which was furnished for the experimental subjects in Block 46 and also obtained other items such as shoes, toys, and women’s clothing.

The testimony of the affiant Ackermann, who was an inmate in the pathological department under Hoven, proves that Hoven participated in the customary brutal crimes in concentration camps. He said—

“Dr. Hoven stood once together with me at the window of the pathological section and pointed to a prisoner, not known to me, who crossed the place where the roll calls were held. Dr. Hoven said to me: ‘I want to see the skull of this prisoner on my writing desk by tomorrow evening.’ The prisoner was ordered to report to the medical section, after the physician had noted down the number of the prisoner. The corpse was delivered on the same day to the dissection room. The postmortem examination showed that the prisoner had been killed by injections. The skull was prepared as ordered and delivered to Dr. Hoven.” (NO-2631, Pros. Ex. 522.)

Hoven also approved the beating of concentration camp inmates. (NO-2313, Pros. Ex. 523; NO-2312, Pros. Ex. 524.) One of these inmates died.

On 20 August 1942, Hoven suggested to the camp commander of Buchenwald that the reporting of deaths of Russian political prisoners be discontinued in order to save paper. He said—

“It is requested that the question should be examined whether it is necessary to issue reports of the death of political Russians. According to a direction issued last week, an issue of only one form was required. This may effect a saving of paper, but as political Russians are for the greatest number among the dead prisoners at the present time, more time and paper could be saved if these death reports were dropped. Notifications of death could be made as before, as for the Russian prisoners of war.” (NO-2148, Pros. Ex. 570.)

The proof has shown that beside the sixty inmates who were admittedly killed by him, Hoven participated in the killing of many other inmates of the Buchenwald concentration camp who suffered from malnutrition and exhaustion. He selected the victims for the transports who were later killed in the Bernburg Euthanasia Station. His defense that all his activities were done only for the benefit of the political inmates in the concentration camp is clearly ridiculous and without foundation.

It is interesting to note that Hoven’s defense that he killed for idealistic motives is the same he used in the proceedings against him in 1944, only then his alleged idealistic motive was “to prevent a scandal in the interest of the SS and the Wehrmacht.” (NO-2380, Pros. Ex. 527; see also, NO-2366, Pros. Ex. 526.)


EXTRACT FROM THE CLOSING STATEMENT OF THE
PROSECUTION
[1]


In Sievers we have an unresisting member of a so-called resistance movement. He asks the Tribunal to free him from guilt for his bloody crimes on the ground that he was really working as an anti-Nazi resistance agent. Nor was he a latecomer to the resistance movement; according to him, he has been resisting since 1933. Yet in those 14 years, yes to this very day, he has not performed one overt act against the men who ran the system he now professes to have always detested. He joined the Nazi Party as early as 1929 and the SS in 1935. He stayed with Himmler’s gang until the last days of the collapse. He came to Nuernberg in 1946, not to give evidence of the horrible crimes of which he had first-hand knowledge, but to testify in defense of the SS. During his testimony before the International Military Tribunal, he consistently denied any knowledge of, or connection with, crimes committed by the Ahnenerbe of the SS. It was left to the cross-examination of Mr. Elwyn Jones to prove him the murderer and perjurer that he is. Nor did he show any signs of resistance in this trial except to the manifold crimes with which he is charged. Not one new fact did he reveal to this Tribunal, although specifically asked to tell all he knew. If asked today, he will assure one and all that there is not a guilty man in the dock, and least of all himself. But, for purposes of argument, let us concede the truth of his many lies. It does not harm our case. It is not the law that a resistance worker can commit no crime and, least of all, against the people he is supposed to be protecting. It is not the law that an undercover agent, even an FBI agent, can join a gang of murderers, lay the plans with them, execute the killings, share the loot, and go his merry way. Many are the policemen who have been convicted for taking part in crimes they were entrusted to prevent. No, the sad thing is that this collector of living Jews for transformation into skeletons has only one life with which to pay for his many crimes.


c. Selections from the Argumentation of the Defense

EXTRACTS FROM THE FINAL PLEA FOR DEFENDANT
GEBHARDT
[2]


The State Emergency and War Emergency as Legal Excuse

The evidence proved furthermore that the experiments to test the effectiveness of sulfanilamide were necessary to clarify a question which was not only of decisive importance for the individual soldier and the troops at the front but above and beyond this care for the individual, it was of vital importance for the fighting power of the army, and thus for the whole fighting nation. All efforts to clarify this question by studying the effect of casual wounds failed. Although drugs of the sulfanilamide series—the number of which amounts to approximately 3,000—had been tested for more than 10 years, it was impossible to form an even approximately correct idea of the most valuable remedies. It was impossible to clarify this question in peacetime by the observation of many thousands of people with casual wounds and by circularized inquiries. Nor could a clear answer be found to this question of vital importance to many hundreds of thousands of soldiers by observation of the wounded in field hospitals during the war. In this argumentation it is impossible and also unnecessary to examine details of the problem of wound infection and its control in modern warfare. I may assume that the importance of this question is known to the Tribunal and needs no further proof since this question not only played a part in the German Army but was a matter of special research and measures in the armies all over the world.

In 1942 the conditions in the German Army and in the Medical Services of the Wehrmacht became intensified only insofar as with the beginning of the campaign against the Soviet Union new difficulties presented themselves in this sphere, too. In the campaigns against Poland and France it had been possible to master the wound infections by the usual surgical means, but the difficulties in the war against the USSR increased beyond all measures. It is unnecessary to examine the reasons for this more closely here. It is clear that they resulted from the great distances and poor traffic conditions, but they were also caused by climatic conditions prevailing there.

The fighting power of the German Army was so affected by the heavy casualties that it was impossible to allocate a correspondingly large number of experienced surgeons to the main dressing stations in order to control bacterial wound infection with surgical measures.

During the presentation of evidence the difficult situation in which the German armies found themselves in the winter of 1941-42 on the Moscow front and in the south around Rostov was repeatedly stressed. Here it was demonstrated clearly that the German Wehrmacht, and with it the German people, were involved in a life and death struggle.

The leaders of the German Wehrmacht would have neglected their duty if confronted with these facts, had they not attempted to solve, at any price, the problem as to which chemical preparations were capable of preventing bacterial wound infection and, above all, gas gangrene, and also whether effective means could be found at all. Whatever the answer to this question was, it had to be found as soon as possible in order to avert an imminent danger and to throw light on a question which was important to the individual wounded soldier as well as to the striking power of the whole army. After the failure of all attempts to solve the problem through clinical observation of incidental wounds and other methods, and, in view of the particularly difficult situation and especially of the time factor, there was nothing left but to decide the question through an experiment on human beings. The responsible leaders of the German Wehrmacht did not hesitate to draw the conclusions resulting from this situation, and the head of the German Reich, who was at the same time Commander in Chief of the German Wehrmacht, gave orders for a final solution of this problem by way of large scale experimentation.

Let us examine the legal conclusions to be drawn from this situation as it existed in 1942 for the German Wehrmacht and therefore for the German state—in particular regarding the assumption of an existing national emergency.

The problem of emergency and the specific case of self-defense has been regulated in almost all criminal codes in a way applicable only to individual cases. The individual is granted impunity under certain conditions when “acting in an individual emergency arising for himself or others”. The administration of justice and legal literature, however, recognize that even the commonwealth, the “state,” can find itself in an emergency, and that acts which are meant to and actually do contribute to overcome this emergency may be exempt from punishment.

1. First of all, the question has been raised whether the conception of self-defense, conceived to cover individual cases, can be extended to include a state self-defense, meaning a self-defense for the benefit of the state and the commonwealth. The answer to this question was a unanimous affirmative.

2. The same reasoning, however, as applied to self-defense is also applicable to the conception of an emergency, as embodied, for example, in Section 54 of the German Penal Code and in almost all modern systems of penal law. These provisions, too, were originally conceived to cover individual cases. But, using them as a starting point, legal literature and the administration of justice arrive at a recognition in principle of a national emergency with a corresponding effect. With regard to the definition of the concept of an emergency generally given in the penal laws, the application of these provisions to the state, while justified in itself, can only be effected in principle.

When the idea of an emergency is applied to the state and when the individual is authorized to commit acts for the purpose of eliminating such a national emergency, here, as in the case of the ordinary emergency determined by individual conditions, the objective values must be estimated. The necessary consequences of conceding such actions on the part of the individual must be that not only is he absolved from guilt, but moreover his acts are “justified”. In other words, the so-called national emergency, even though it is recognized only as an analogous application of the ordinary concept of emergency in criminal law, is a legal excuse. But what does “application” in principle to the cases of national emergency mean? Whether a national emergency is “unprovoked” or not, whether, for example, the war waged is a “war of aggression” can obviously be of no importance in this connection. The existence of the emergency only is decisive. The vital interests of the commonwealth and the state are substituted for the limitation of individual interests. Summarizing, we can define the so-called national emergency as an emergency involving the vital interests of the state and the general public which cannot be eliminated in any other way. As far as such emergency authorizes action, not only may a legal excuse be assumed but a true ground for justification exists.

I shall examine later how far an erroneously assumed national emergency, a so-called putative emergency, is possible and is to be considered as a legal excuse. What consequences arise from this legal position in the case of the defendant Karl Gebhardt?

1. As proved by the evidence the general situation in the various theaters of war in the year 1942 was such that it brought about an “actual”, that is, an immediately imminent danger to the vital interests of the state as the belligerent power and to the individuals affected by the war. The conditions on the eastern front in the winter of 1941-42 as they have been repeatedly described during the submission of evidence created a situation which endangered the existence of the state, through the danger of wound infection and the threat to the survival of the wounded and the fighting strength of the troops arising therefrom.

It must be added that the past World War was fought not only with man and material but also with propaganda. In this connection I refer to the statements of the defendant Gebhardt in the witness stand as far as they concern information given to him by the Chief of Office V of the Reich Security Main Office, SS Gruppenfuehrer Nebe. This information shows that at that particular time the enemy tried to undermine the fighting spirit of the German troops with pamphlets describing the organization and material of the German Wehrmacht Medical Service as backward, while on the other hand praising certain remedies of the Allied Forces, for instance penicillin, as “secret miracle weapons”.

2. The assumption of a state of national emergency presupposes that the action forming the subject of the indictment was taken in order to remove the danger. By this is meant the objective purpose of the action, not just the subjective purpose of the individual committing the action. The question, therefore, is whether the sulfanilamide experiments were an objectively adequate means of averting the danger. This, however, does not mean that the preparations really were an adequate means of expertly combatting the danger. According to the evidence there can be no doubt that these assumptions really did exist.

3. Finally, there must not be “any different way” of eliminating the national emergency. One must not misunderstand this requirement. Not every different way, which could be pursued only by corresponding violations, excludes an appeal to national emergency. The requirement mentioned does not mean that the way of salvation pursued must necessarily be the only one possible. Of course, if the different possibilities of salvation constitute evils of different degrees, the lesser one is to be chosen. It must also be assumed that a certain proportion should be kept between the violation and the evil inherent in the danger. In view of the fact, however, that in the present case many tens of thousands of wounded persons were in danger of death, this viewpoint does not present any difficulty here.

According to the evidence there can be no doubt that a better way could not have been chosen. On the contrary, it has been shown that in peacetime as well as in wartime everything was tried without success to clarify the problem of the efficacy of sulfanilamides. And the fact, too, that prisoners were chosen as experimental subjects who had been sentenced to death and were destined for execution, and to whom the prospect of pardon was held out and actually granted cannot be judged in a negative sense. This fact cannot be used as an argument when examining the legal viewpoint, because participation in these experiments meant the only chance for the prisoners to escape imminent execution. In this connection I refer to the explanations I have already given in connection with the so-called probable consent.

Excuse

In addition to the general national emergency discussed, the literature of international law recognizes also a special war emergency. According to this, “in a state of self-defense and emergency, even such actions are permitted which violate the laws of warfare and therefore international law.” But in the sense of international law the “military necessity of war” which by itself never justifies the violation of the laws of warfare differs from self-defense and emergency. Emergency and necessity of war, however, are different concepts. The emergency due to which the self-preservation and the self-development of the threatened nation are at stake justifies, according to general principles recognized by the national laws of all civilized countries, the violation of every international standard and thus also of the legal principles of the laws of warfare. When applying the concepts of self-defense and emergency as recognized by criminal and international law, the illegality of violations committed is excluded if the nation found itself in a situation which could not be relieved by any other means.

In this connection the following must be pointed out:

I have already explained that the experimental subjects, on whom the sulfanilamide experiments forming the subject of this case were performed, came under German jurisdiction, even if one holds the opinion that Poland’s case was not one of genuine “debellatio” but only of “ocupatio bellica”.[3] However, whatever opinion one might hold with regard to this question, there can be no doubt that assuming an emergency according to international law, the performance of the experiments would have been justified even if at the time the experimental subjects had still been citizens of an enemy nation. Decisive for the regulation of the conditions of such persons according to international law are the “Regulations Respecting the Laws and Customs of War on Land” annexed to the Hague Convention, dated 18 October 1907. According to the above statements, however, even a violation of such special conventions, as contained for instance in the special prohibitions of Article 23, is justified during a genuine war emergency. The fact that the special conditions characterizing a real war emergency are existent invalidates the objection that citizens of another country should not have been used for the experiments.

The Evaluation of Conflicting Rights and
Interests as Legal Excuse

According to well-considered opinions, we must start from the premise that the defendants, both in principle and in procedure, are to be tried according to German criminal law. They lived under it during the period in question and were subject thereto. For this reason I wish to approach one more viewpoint which should be considered independently, and in addition to the legal excuses already mentioned, when judging the conduct of the defendants.

For many years the legal provisions for emergency cases have proved inadequate. For a long time an endeavor was made to fill the gaps with theoretical explanations of a general nature, and finally the Reich Supreme Court handed down basic decisions expressly recognizing an “extra legal emergency”. The considerations on which they were based are known as the “objective principle of the evaluation of conflicting rights and interests.” In the legal administration of the Reich Supreme Court and in further discussions this principle, to be sure, is combined with subjective considerations of courses of action taken by the perpetrator in the line of duty. Therefore it is necessary to discuss both considerations, that of evaluating conflicting rights and interests and that of compulsion by duty together, even if we must and shall keep them distinctly separated for the time being.

The consideration of an evaluation of conflicting rights and interests as legal excuse is generally formulated as follows:

“Whoever violates or jeopardizes a legally protected right or interest of lesser value in order to save thereby a legally protected right or interest of greater value does not act in violation of the law.”

The lesser value must yield to the greater one. The act, when regarded from this point of view, is justified, its unlawfulness—and not merely the guilt or the perpetrator—is cancelled out.

This so-called principle of evaluating conflicting rights and interests is first of all a formal principle which establishes the precedence of the more valuable right or interest as such. This formal evaluation principle requires on its part a further material evaluation of the rights or interests comparatively considered. This evaluation again requires the adoption of the law and its purport to the general attitude of a civilization and, finally, to the conception of law itself.

Let us examine the conclusions to be drawn from this legal situation in our case: Agreement and so-called likely agreement, just as well as a national emergency and a war emergency, constitute special legal justifications, the recognition of which allows us to dispense with a recourse to the general principle of evaluating conflicting rights and interests. The latter retains its subsidiary importance. Furthermore, those two special legal justifications refer in their purport to a fair and equitable way of thinking as well as to the proportional importance of various types of evils; thus they themselves include the conception of evaluating conflicting rights and values. For this reason, among others, the following must be explained in detail at this point:

A national emergency and a war emergency were unmistakably in existence in 1942. Every day the lives of thousands of wounded were endangered unless the threatening wound infection could be checked by the application of proper remedies and the elimination of inadequate remedies. The danger was “actual”. Immediate help had to be provided. The “public interest” demanded the experimental clarification of this question. The evidence has shown that the question could not be clarified by experiments on animals or by the observation of incidental wounds.

The last word on this question, however, is not said merely by reference to the public interest. Opposed to the public interest are the individual interests. The saying “necessity knows no law” cannot claim unlimited validity. But just as little can the infringement on individual interests in order to save others be considered as “contrary to good morals”. The evidence has shown that the members of the resistance movement of Camp Ravensbrueck who were condemned to death could only escape imminent execution if they submitted to the experiments which form the subject of this indictment. There is no need to examine here and now whether the experimental subjects did give their consent or whether they presumably would have consented, if, from their personal point of view and in the full knowledge of the situation, they could have made a decision within the meaning of an objective judicial opinion based on probability. What really matters is the question of whether after a just and fair evaluation of the interests of the general public and the real interests of the experimental subjects, the defendant could conclude that, all circumstances considered, the execution of the experiments was justifiable. Without doubt this question can be answered in the affirmative. Quite apart from the interest of the state in the execution of the experiments, participation in the experiments was in the real and well-considered interest of the experimental subjects themselves, since this participation offered the only possibility of saving their lives through an act of mercy.


The Defendant’s Erroneous Assumption of an Emergency
(Putative Emergency)

I have already mentioned the circumstances which justify the assumption of a national emergency and a war emergency caused by the special conditions prevailing in 1942. If these conditions actually prevailed, the illegality of the act and not only the guilt of the perpetrator would be excluded for reasons previously enumerated. If the defendant had erroneously assumed circumstances which if they really had existed would have justified a national emergency and a war emergency, then, according to the general principles already mentioned, the intent of the defendant and thus his guilt would also be eliminated in this respect. The evidence, especially the defendant’s own statements on the witness stand, leaves no doubt that, when the experiments began in 1942, he had assumed the existence of such circumstances which were indeed the starting point and motive for ordering and carrying out these experiments.


EXTRACT FROM THE FINAL PLEA FOR DEFENDANT
SIEVERS
[4]


May I remind you of the exciting part of my case in chief which dealt with Sievers’ participation in the resistance against the National Socialist government and administration. By putting forward his activity in a resistance movement, the defendant Sievers does not endeavor to obtain a mitigation of an eventual condemnation. In my opinion, this activity must under all circumstances result in his acquittal, even though, contrary to expectation the High Tribunal should tend towards the opinion that Sievers had participated in the accused crimes.

In the first place it is my intention to discuss a series of legal questions that have at all times been acknowledged in the criminal law of all civilized nations. It is not by any means the task of the High Tribunal to apply any special article of law, but, from general legal and legal-philosophical principles, to lay down a rule finding and creating a new law to meet a new situation. It need hardly be said that first and foremost I am supporting my own client. But in your verdict, you, your Honors, are not judging only this defendant. Beyond this particular case your verdict has a far more extensive, general, nay, world-wide importance. For it is the first time that a tribunal of such importance is to decide upon the actions of a member of a resistance movement. Consequently, your judgment is a fundamental one and a signpost for our time for many, many other defendants and accused men in this connection who have stood before this Tribunal or will be brought before other courts. Your decision for all time extends to cover thousands and thousands of men who, at some time, may be put in the position of opposing some criminal system of government by similar means as Sievers did. On this our globe there are still autocracies and totalitarian dictatorships and it requires only little foresight to realize that other dictatorships may involve other international entanglements and wars of the most horrible nature. Furthermore, in the future, mankind will again and again be in sore need of courageous men who for the sake of their nation and for the welfare of mankind oppose themselves to such dangerous doings. It is for such champions and for such groups of champions that your verdict will be a criterion and a signpost. You are deciding in advance the future possibilities and the sphere of action of future resistance movements against criminal governments and their chiefs. You are offered the opportunity of checking such movements by your verdict. But you are also able to give them the safety necessary for their dangerous enterprise and the success of their proceedings. How and where would such helpers be found in future if, apart from the immediate peril, they have to reckon with the additional danger of being called to account by the very people for whom they risked their lives? And therefore, your Honors, with your verdict in the Sievers case you take upon you a responsibility before the whole world and for all time to come, a responsibility as is seldom placed upon a tribunal. But on the other hand you can also say with pride that with this judgment you render an immeasurable service to the world in its struggle for peace and justice.

Therefore the reasons for your verdict in the Sievers case are so immensely important, far more important than the trifling Sievers case can be in the universal history of all times. I am forced to detail the particulars of these problems.

It goes without saying that the member of a resistance movement can only refer to his resistance, if this resistance is lawful. This will not always be the case; for, political crime and similar actions committed for political motives are crimes and will remain such. He who removes a political adversary only to take his position or to open the way for his partisans acts unlawfully and is liable to punishment. The situation, however, becomes different if not only a political discussion is interrupted by murder, but where a tyrant whose government is inscribed with bloody letters in the annals of mankind is at last felled to the ground. In this case the perpetrator is supported by an acknowledged excuse. This excuse is self-defense.

According to the German Penal Code, Article 53, an action is not punishable if it is committed in self-defense. And self-defense is such defense as is necessary to ward off from oneself or another person an imminent unlawful attack.

These principles are, however, not only German legal stipulations. They are legal values of all nations and all times. To a large extent they tally with human sentiments and are termed “the great law of defense.” They are already found in Roman law in the formulation “vim vi expellere [repellere] licet”—force may be driven out by force—and have been enthusiastically taken over by English common law and by American law, as stated by Wharton, “Criminal Law”, paragraph 613. They authorize every individual to ward off injury from himself or another person with all necessary means at his command. From this point of view too the struggle against a criminal government threatening the peace of the world, preparing aggressive wars, ready without any purpose or need to plunge the whole world into immeasurable misery from sheer striving for power, from presumption and conceit; struggle and resistance against such a government and such guidance are lawful and permissible, no matter by what means they may be carried on. Since the end of the war even, the opinion has been maintained more and more that such a struggle is not only lawful and permissible but is even the duty of every individual. Is not the collective guilt of the whole German nation substantiated by the charge that it witnessed the doings of the Nazi government without interfering at least with a secretly clenched fist in its pocket? Murder and manslaughter, bodily injury and restriction of liberty inflicted upon the potentates and responsible men of such a system are acts of self-defense for the benefit of peace and mankind. They are lawful and exempt from punishment; they are a duty if there is no help possible in any other way.

From times immemorial this question concerning the lawfulness and duty of committing political murder has engaged not only lawyers but also a large number of poets and philosophers. Friedrich von Schiller justified the murder committed on Gessler as the last desperate attempt to escape slavery. Thus the juridical vindication of murdering a criminal tyrant is paralleled by its high moral estimation.

But it may happen that not only the real assailants come to grief. He who has to ward off an attack may be forced to implicate a third person hitherto not involved. This case too is provided for in the German Penal Code and is termed “necessity”. The regulation of Article 54 runs as follows: “No punishable act has been committed when the act—self-defense apart—was committed in an emergency, which could be met in no other way, to escape a present danger to the life or body of the perpetrator or a relative of his.”

The legal codes of all nations and all ages have been compelled to face the problem of the conflict between two legal values which can only be solved by hurting or even annihilating one of the two. Justice cannot insist with utter consistency upon the individual respecting foreign rights and sacrificing his own at all costs and under any circumstances. A Frenchman says to this question: “Cette théorie est admirable pour des saints et pour des héros, mais elle n’est point faite pour la vulgaire humanité”—“This theory is admirable for saints and heroes, but it is not for common humanity”—[Pradier—Fodéré, vol. I, page 367, Traité du droit international public européen et américain.] “Quod non est licitum in lege, necessitas facit licitum”—“What is not permitted by law, necessity makes permissible”—[says the Roman law], and the French lawyer Rossi says: “L’acte ne peut être excusable lorsque l’agent cède à l’instinct de sa propre conservation, lorsqu’il se trouve en présence d’un peril imminent, lorsqu’il s’agit de la vie.”—“The act can be excused only when the perpetrator yields to the instinct of self-preservation, when he finds himself faced with imminent danger, when life itself is at stake.”—An old German legal proverb runs: “Necessity knows no law.” Last but not least, American law deals with this problem under the name “necessity” (Wharton, “Criminal Law,” par. 642), a literal translation of the German expression “Not”. So by virtue of necessity a shipwrecked sailor may push his fellow-sufferer from the board which is too small to save both of them. If applied to resistance movements against criminal governments, these principles mean that third persons hitherto unconcerned may also be involved, if there is no other alternative, if “Not”, “necessitas”, “necessity” requires it peremptorily and unavoidably.

You, your Honors, are called upon to bring the principles of “self-defense” and of “necessity”, “this great law of defense” to their common denominator, to apply them to the Sievers case and thus insert them into the unwritten rules of the international relations of public and political law. The Anglo-Saxon legal way of thinking and the principles of natural law will give you valuable support in forming the verdict.

Now I can turn to the specific case of Sievers.

In order to judge his actions the following questions are of a decisive importance: Was there a German resistance movement at all? Did the Hielscher group belong to this resistance movement? Was this group to be taken seriously and what were its aims? Was Sievers a member of this group and what were his tasks? What was his attitude in performing these tasks? Were there also other possibilities for him? It has frequently been maintained that there was no German resistance movement. But the German resistance existed.

I must, however, confess that the question “Where was this resistance?” readily suggests itself to such people as are not acquainted with the internal conditions of Germany, above all during the war. I must also grant the fact that scarcely more than Stauffenberg’s plot with its staggering consequences came before the public.

He who puts such a question completely misjudges the conditions under which the whole resistance movement had to work against the Nazi Government. He forgets that up to the fatal date of 20 July 1944, he had also no idea of the group round Stauffenberg. I am therefore all the more forced to give a concise exposition of the situation which in the Third Reich everybody opposing the Nazi Government had to face.

From the very beginning it was the aim of the authoritarian government to get hold of every German man, every German woman, all children, and old men in order to bring them up in the spirit of the new method of government. The totalitarian striving for power did not stop short at personal freedom. It removed professional and economic organizations, cultural and social institutions, some of which were reestablished in another form, subject to the control of the Nazi Government.

It was against this state of things that the struggle set in from the very beginning. Nothing would be more wrong than to believe that this struggle could be waged in the open street with large quantities of propaganda material, display of physical force, with fire arms, bombs, war, and rumors of war. Even in the trade unions, the most consistent and resolute adversaries of the new government in 1933, such a method was not possible. This government kept a tight rein over the whole public apparatus controlling in an increasing degree the private spheres through the organizations of the SD, Gestapo, etc. The ambiguous stipulations of the law against malicious acts or insults to the state and party (Heimtueckegesetz) made possible the imprisonment of people even for accidental deprecatory remarks. Political discrimination and the constant danger of being sent to a concentration camp were the effects of many innocent remarks. No newspaper could have been found to agitate against the oppressors. But if handbills were secretly distributed the contents of which defamed the Nazi government, the whole apparatus of the police, Gestapo, SD, etc., was set in motion. The possession of weapons was considered circumstantial evidence of treasonable enterprises and meant capital punishment for the imprudent. It must be added that there was a widely extended spy system sticking to everybody’s heels. One had even to guard oneself against one’s nearest relations and children.

These few words concerning the internal situation of Germany were necessary as an answer to the absurd question put in Stockholm to the witness Hielscher: “Why did you not speak in the open market place [publicly]?” (Tr. p. 5935.)

The most obvious kind of opposition was offered by the two great Christian churches. How much and how often were the antichrist and his false prophets not preached against, how many clergymen of all confessions were sent to prisons, penitentiaries, concentration camps, nay, to death? It is true, the churches could venture forth more openly than other people. For they did not intend to participate in a forcible removal of the system, in the killing of its leaders and representatives, in the fight with arms. But the nonecclesiastical resistance groups had realized that the Nazi dictatorship could not be overthrown without violence; they were not subject to the political-philosophical impediments and restrictions of the churches, they could not throw off the mask until the day of action had dawned. Up to that time they were condemned to be silent, they had to camouflage, acting on the old principle of all conspirators: “Never speak of your aim, but always think of it!” If they had forgotten this principle, sooner or later unquestioningly they would have been betrayed by a spy and liquidated by the Gestapo. They would never have got as far as action. Did not the group round Stauffenberg act in this way too? Who knew of its existence before the bomb burst in Hitler’s headquarters on 20 July 1944? The same was the case with all the other resistance groups which unfortunately no longer had the possibility of acting and some of which were traced and secretly killed in spite of this.

The fact that all of them existed is proved, however, by the small number of publications: the pamphlets of Emil Henk, of Franklin L. Ford and other authors, and Neuhaeusler’s book, “Cross and Swastika”.

But downright classical witnesses are the numerous bloody victims whom the People’s Court of Justice [Volksgerichtshof] and the Gestapo had sent to the concentration camps and to death.

One of these groups was the group around Hielscher, a member of which was the defendant Sievers.

There was a Hielscher group, it existed, it acted. Hielscher himself is an unimpeachable witness of this. In connection with 20 July 1944, he was imprisoned for three months and was to be hanged. Hielscher’s illegal activity is sworn to by many other no less trustworthy witnesses. As the first of them I mention the political emigrant Dr. Borkenau, who had been working against National Socialism at least since 1928. He had known Hielscher since 1928. He speaks of his hostility to National Socialism, of a “sharp attitude”. At that time he frequently negotiated and conspired with Hielscher, who set forth the methods of his fight. During his emigration, Dr. Borkenau watched Hielscher’s activity from abroad and again and again he heard: “Hielscher keeps on fighting”. If we are told so by an emigrant, we may well believe it. Another witness who never lost connection with Hielscher was Dr. Topf, who himself was an active member of the resistance movement. He too described Hielscher as a violent antagonist of National Socialism, working and struggling unswervingly. I refer to the many affidavits which I presented in this connection.

It does not speak against Hielscher’s oppositional activity that he did not stand out more in public. For him too, camouflaging up to the moment of decision was an imperative requirement, and Dr. Borkenau calls it a downright masterpiece that he so eminently succeeded in doing so.

Sievers was a member of the Hielscher group

There cannot be the least doubt of this fact. Apart from all the testimony, the whole personality of my client excluded any Nazi attitude. His nature and his development necessarily made him a decisive adversary of Hitler’s system of oppression, terror, and murder. Both his origin and the interests of his youth brought him into contact with people who kept aloof as much as possible from the Nazi way of thinking. He was the son of a director of ecclesiastical music; he pursued historical and religious studies. His nature led him to the Boy Scouts, in short to such interests as National Socialism calumniated with all its powers of ridicule and combated violently with stubborn dislike. All those persons who either testified or in affidavits gave evidence about his character describe him as follows: an upright man with lofty ideals of deeply rooted humanity and a strong sense of law and justice. If you combine this picture of Sievers painted by notorious anti-Fascists with all the authenticated aid that Sievers bestowed on victims of Nazism, it is only a small step to the conviction that Sievers was also a member of a resistance movement.

Perhaps the prosecution may say: “I do not believe all these stories, for both Hielscher and Sievers did not achieve anything.”

That would wrong Sievers to a high degree, your Honors! Other resistance groups too had the misfortune that they had not more opportunity to act. The witness Hielscher exposed very clearly the reasons why a standstill was inevitable after the failure of the plot on 20 July 1944. As Hielscher and his associates could no longer depend upon the army, they were compelled to start again from the very beginning.

What were the intentions and the mission of the defendant Sievers within the Hielscher group? Hielscher himself answers that. Sievers’ tasks were of two kinds: (1) Gathering news from the immediate proximity of Himmler as basis for the disposal of the resistance forces with regard to place, time, and kind of action. (2) Sievers was not only a spy and a scout; at the moment of action he was destined and ready to do away with Himmler. These two tasks require a double legal examination: Were they in themselves permissible, lawful, or even a duty? The answer to this question is to be found in the principles which I evolved in the idea of self-defense in the sphere of political struggle. What measures was he allowed to take? To what extent could he venture to advance into the domain of criminality? To what extent could he involve uninitiated third persons in his plans, even actual victims of Nazism? The rules of “necessity” lead the way for judging and solving this problem.

In taking up the first question I can be relatively brief. After all we know today, it is an irrefutable fact that Hitler and his accomplices terrorized the German Nation and the whole world in a criminal way and with criminal means, that from the beginning they were an immediate peril to peace and all civilization and that finally the worst apprehensions turned to ghastly reality. Therefore the first prerequisite for the defense of “necessity” is beyond all doubt a present illegal attack on the highest goods of mankind. To put it in the words of the German Penal Code that was the “necessity” (“not”) which was to be warded off.

But we also know that this defense was not to be accomplished with the normal means of a democratic parliamentary system. I described the truly diabolical organization by which it had been rendered impossible to make use of these means. Thence follows that the removal of Hitler and his accomplices was the only possible expedient to break and smash this system. Less hard and violent means were not available.

As a matter of course it follows that Hielscher’s plan to do away with Himmler had become legal and compulsory for those in the position to execute it. After the evidence of Hielscher and other trustworthy witnesses, it cannot be denied that Sievers had been charged with this task.

If it was justified to do away with Himmler, the accompanying and preparing scouting-activity was justified too.

Before answering the question to what extent Sievers could involve third persons, I have to sketch in a few lines the tactics of Hielscher and the position of Sievers.

It was not in vain that Hielscher himself gave full particulars on this question. We also heard other witnesses, Dr. Borkenau, Dr. Topf. Sievers clearly outlined his tasks. All this evidence is in such unanimous agreement that no doubt of its truth could arise.

Hielscher was one of the first and few people who realized that the way to take measures against the system could be only from within the ranks of the party itself. He had gained the firm conviction that a prospect of success could be seen only by doing away with the heads of the Nazi Government and assuming the government from the top and that nothing, nothing at all, was to be anticipated from a revolution of the people from below. A revolution of such a kind would have been of no avail, as it would very quickly have been stifled in torrents of blood.

The knowledge of these facts required four groups of measures to be taken, the particulars of which Hielscher detailed on 15 April:

Preparation of the undertaking by a well-camouflaged organization of trusted men and spies within the ranks of the NSDAP, i.e., the Trojan Horse policy.

Placing suitable courageous men in positions as near as possible to leading personages of Nazism, the most dangerous of whom was Himmler.

Doing away with Himmler and other leaders of the Nazi Government upon a given cue.

Taking over the government by an organization prepared in advance.

In spite of all liberty of action granted to the “activists” of his group, Hielscher had realized that success could only be expected if everybody, in strict discipline, obeyed his orders only. This was the only way for him to hold the reins and to give the cue at the right moment. Here I must emphasize that within the scope of this indispensable discipline, Sievers in all details acted in complete unison with Hielscher, that in all important moments he described the real state of affairs and asked for his instructions. In this way Hielscher obtained ample information of everything enacted around Sievers and of what Sievers did himself. Sievers was nothing but the tool in the hands of the leader of the movement. Therefore, your Honors, your verdict affects Sievers’ commissioner, Hielscher, in just the same way as Sievers himself. Hielscher is condemned together with Sievers, as he is acquitted with Sievers. With the same courage of responsibility with which he placed Sievers and other accomplices in most dangerous positions, Hielscher could declare at the end of his evidence that he not only took but also claimed the whole responsibility for all the deeds with which his follower Sievers would be charged as a result in this trial.

Hielscher sketches the task of Sievers as follows: In the belly of the Trojan horse, i.e., under the color of eager and enthusiastic cooperation his duty would be (a) to scout and to spy, (b) profiting by his influence, to place other persons in similar positions for the same purposes, or in places where they would be given the possibility of working undisturbed, (c) to back endangered members of the resistance movement and if possible to rescue them, and finally (d) to do away with Himmler at the moment of action.

This last item was the essential point of the task of my client. All the other tasks were inferior to this aim and assignment, they only served to prepare and support it. It is from this point of view that his whole conduct must be understood and all his acts judged.

What did Sievers achieve in the sphere of this task?

I cannot reiterate all the details that I set forth in the first part of my plea. I came to the conclusion that Sievers did not make himself guilty of complicity or assistance in the facts charged in the indictment. If, however, you suppose with the prosecution that Sievers is to be found guilty of some of the counts of the indictment, it is my task to justify this conduct before the forum of a concept of justice transcending codified law, and to expound it to the Tribunal.

How did it come about that in 1942 Sievers remained in his position when the Ahnenerbe came into contact with medical experiments which possibly might assume a criminal character? We must not forget that Sievers was assigned the removal of Himmler and that in the Hielscher group he was the only person who could have been entrusted with such a task. Properly speaking, in Hielscher’s group he had the key position; the success or failure of the whole enterprise depended on him alone. For Himmler was the most dangerous personality in the Nazi system, because in his quality of Chief of the Police and Commander of the Reserve Army all the internal political armed forces were concentrated in his hand. Consequently he had the power of nipping in the bud every rebellion. Himmler was able to rule without Hitler, whereas Hitler could not rule without Himmler. The latter was to be done away with first. Should Himmler be overlooked or should he somehow succeed in escaping, the whole enterprise would be endangered. Himmler’s importance is therefore the measure of the importance of Sievers, who had to be ready for the decisive blow in Himmler’s immediate proximity. To ask if this post could be abandoned is to answer it in the negative.

As Sievers was fully conscious of the importance of such a decision, he became involved in the greatest internal conflict of his life. Of two evils, the worse had to be avoided and the smaller to be endured, or both of them to be shunned.

To do the latter would certainly have been the most convenient solution. That Sievers got into this conflict amply demonstrates his consciousness of responsibility, his love of justice and humanity. As to the struggle with his soul, he certainly did not succeed in getting the better of himself. Too many questions depended on his decision, not only for himself but above all for the resistance movement as a whole. We must try to look into the soul of a man, who, on the one hand, was exposed to the pressure of an enormous aversion to the approaching threatening events and, on the other hand, knew only too well that in his position he could no longer fulfill his task if he obeyed his personal impulses. Perhaps it would have been possible for Sievers to leave his office without creating a great sensation and without considerable disadvantage for himself. Could he not have retired to cooperate in some innocuous scientific research? But in doing so Sievers would have been a runaway, a deserter. In his agony of soul, Sievers applied to Hielscher who after mature consideration and deliberation came to the decision: Sievers will stay!

For the post in Himmler’s proximity could not be renounced. If Sievers abandoned it, Hielscher would be under the necessity of entrusting him with another position near Himmler or of replacing him by another member of the movement with the same task. Was this possible? Would he, remaining near Himmler, have not time and again come into the same dilemma? Was it possible to wait and see? Could it be expected that another man would be more successful? Would not Sievers, in spite of all circumspection, have raised suspicion in substantiating his withdrawal? For to do so openly and with protest would have been downright madness. Imagine only the danger he would have conjured up for himself and his associates! What could his withdrawal have availed? One more question: if Sievers’ withdrawal could have prevented the human experiments at all, that would have been only a partial success. For as to the aim in its totality, the removal of Himmler and the Nazi Government, nothing would have been gained but a further delay of the decision or the impossibility of achieving it because of the loss of the key position. As still more victims of the Nazi Government would have been the result, a partial success had to be sacrificed in favor of the great aim.

If you try to answer these questions there cannot be the least doubt that the decision Hielscher arrived at was the only possibility.

That brings me to the last, to the most important point of my defense, to the question:

“How was Sievers to act in his position?”

Without any doubt, he was compelled to make certain concessions. He was forced to camouflage, i.e., to accommodate himself outwardly to his surroundings which he was going to spy on and to remove. Every spy has to camouflage and I do not betray a secret in mentioning that in wartime many a man donned the uniform of the enemy. It is generally known that in 1942 the French General Giraud performed his escape from German captivity in the uniform of a German general.

When Sievers was a member of the party from 1929 to 1931, when later on he joined the NSDAP and the SS again, when he filled higher positions in these organizations, when he held the position of Reich Manager of the Ahnenerbe and suffered himself to be promoted to a higher rank in the SS, without any doubt at all that was part of the camouflage measures which Hielscher, Dr. Borkenau, Dr. Topf, and other witnesses call the indispensable prerequisite, the compulsory mask for the tasks of the defendant Sievers.

Nobody will pretend that these camouflages which were to render possible a legally approved, nay, desirable aim, are in themselves punishable and illegal. Sievers’ outward membership in the SS is therefore excused by its camouflage purpose. And it is equally unobjectionable that occasionally he played the part of a good Nazi. The duty of doing so had expressly been urged upon him by Hielscher. The career of the organizer or an active member of a German underground movement would have found a sudden end if he had not behaved like a Nazi.

All the more seriously must I turn to the question of Sievers’ consent to and further participation in the human experiments and the establishment of the collection of skeletons, in which third persons suffered bodily injury.

Here the question is raised where are the bounds of necessity if it involves actions which in themselves are punishable facts. The answer to this question is the essential point of the Sievers case.

The legal orders of the world set up the principle: “The legal values damaged by the action committed under necessity, must not be of a disproportionally greater value than the protected and rescued legal value.” That is the principle of proportion concerning which Wharton [“Criminal Law”], paragraph 642, says, “Sacrifice of another’s life, excusable when necessary to save one’s own.”

What were the competing legal values in the Sievers case?

On the one hand, there was the civilization of the world, the peace of the earth, humanity, the lives and existence of millions of men threatened and hurt by Hitler’s criminal government. Such actions are called crimes against peace and humanity by the new international law which threatens them with the severest punishments. The Allied Nations considered these legal values worthy of their soldiers enthusiastically going to war and death for them.

On the other hand, you will find the lives of individuals, their bodily safety, the respect and esteem of their personality, their liberty and the free expression of their will, certainly legal values of no less high value. There may have been hundreds of victims. But it was a meager number in comparison with the multitudes that Hitler, Himmler, and their accomplices had already murdered and continued murdering.

My question runs: Which of the two contending legal values is more valuable from the point of view of proportion?

I am far from excusing the ghastly crimes that happened in the concentration camps or even minimizing them, but with all my abhorrence for them I cannot help answering: The protection of civilization and humanity deserves preference over the life and health of individuals, deplorable as the inevitable sacrifices may be. So finally it was necessary, absolutely requisite, to put up with the violation of the less valuable legal values and to rescue the more precious, the whole. Sievers’ remaining at his post in the Ahnenerbe was absolutely necessary for the removal of Himmler.

Of course it would not be difficult to state post festum that Sievers could have acted differently, that he ought not have advanced thus far. But up to now nobody has been able to tell us how he should have acted. Even the public prosecutor did not try to make a concrete proposal.


EXTRACT FROM THE FINAL PLEA FOR DEFENDANT
HOVEN
[5]


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

In part (b) of the closing brief, I stated that these killings had no connection with the euthanasia plan.

I further stated that it can be considered proved that Dr. Hoven killed only two prisoners himself, and that about 50 or 60 prisoners were killed by order of those responsible for the German and foreign political prisoners with the knowledge of Dr. Hoven.

I have set forth a legal evaluation of these killings in a further paragraph under (e) of the closing brief.

The legal arguments as set forth in the closing brief are taken from the work of the well-known American criminologist Wharton, Criminal Law. The first part of this argument contains, under (e), the literal quotations from this book.

According to common law, the killing of a man can be either murder, manslaughter, excusable homicide, or justifiable homicide. Excusable homicide and justifiable homicide are not punishable.

The present American law does not differentiate between justifiable homicide and excusable homicide. I refer to my closing brief, particularly to the statements of Wharton in his book Criminal Law, 12th edition, volume I, 1932, pages 826 to 879. According to Wharton, excuse and justification for a homicide are either repulsion of felonious assault, or prevention of felony.

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

On the other hand, everybody is entitled to prevent a crime. I refer to the details contained in my legal arguments of my closing brief.

Killing a man to prevent a felonious crime requires the following conditions which are set forth in my closing brief:

(1) The perpetrator must have the bona fide belief that the commission of a felonious crime is immediately impending. It is not a condition that such a crime would actually have been committed. The bona fide belief of the accused is quite sufficient. In this connection I refer to the legal arguments of the closing brief.

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

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

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

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

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

In my closing brief, I elaborately explained that these conditions existed in the case of all the killings for which Dr. Hoven accepted the responsibility.

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

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

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

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

This is proved first of all by the testimony of the witness Dorn, who gave many details as to the means and methods employed by Dr. Hoven and the illegal camp administration in becoming convinced of the necessity for the killings. Dr. Hoven supplemented those statements. Furthermore, they were corroborated by the testimony of the witnesses Hummell, Dr. Kogon, Seegers, Philipp Dirk, Baron von Pallandt, and van Eerde through their affidavits.

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

There was no other way but the one which Dr. Hoven chose in order to prevent crimes. I showed that with details in my closing brief. There I assembled the testimony of the witnesses for the prosecution and defense who were heard on this point.

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

In this courtroom, Dr. Kogon, a convinced Christian and a deeply religious man, said: “There was really no other possibility for the men of the illegal camp administration. I, as a convinced Christian, do not deny those men the right to have killed people in an emergency who in collaboration with the SS endangered the lives of individuals or of many.”

The witness Pieck stated: “It may be that the liquidation of many political prisoners and of SS spies employed in the camp may make Dr. Hoven a murderer in the eyes of many; yet, for me and others who understood the real situation he was a soldier fighting on our side and risking a great deal.”

Pieck expressed the same opinion also in a letter to the Dutch Ministry of Justice, a letter that was co-signed by the City Council of Amsterdam and Mr. Droering, head of a department of the State Institute for War Documentation in The Hague.

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

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

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

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


d. Evidence

Testimony
Page
Extract from the testimony of defendant Karl Brandt29
Extracts from the testimony of defense witness Dr. Friedrich Hielscher30
Extract from the testimony of prosecution expert witness Dr. Andrew C. Ivy42

 

EXTRACT FROM THE TESTIMONY OF DEFENDANT KARL BRANDT[6]

EXAMINATION


Judge Sebring: Witness, this question of the necessity for an experiment, is it your view that it is for the state to determine the extreme necessity for such an experiment and that thereafter those who serve the state are to be bound by that procedure? I think you can answer that “yes” or “no”.

Defendant Karl Brandt: This trial shows that it will be the task of the state under all circumstances basically to clarify this question for the future.

Q. Witness, as I understood your statements a moment ago, they were that the physician, having once become the soldier, thereafter must subordinate such medical-ethical views as he may have when they are in conflict with a military order from higher authority, is that true?

A. I didn’t want to express it in that form. I did not mean to say that the physician, the moment he becomes a medical officer, should change his basic attitude as a physician. Such an order can in the very same way be addressed to a physician who is not a soldier. I was referring to the entire situation as it prevailed with us in Germany during the time of an authoritarian leadership. This authoritarian leadership interfered with the personality and the personal feelings of the human being. The moment an individuality is absorbed into the concept of a collective body, every demand which is put to that individuality has to be absorbed into the concept of a collective system. Therefore, the demands of society are placed above every individual human being as an entity, and this entity, the human being, is completely used in the interests of that society.

The difficult thing, and something which is hard to understand basically, is that during our entire period, and Dr. Leibbrandt referred to that, everything was done in the interests of humanity so that the individual person had no meaning whatsoever, and the farther the war progressed, the stronger did this principal thought appear. This was designated in the end as “total war,” and in accordance with that, the leaders of the state gave orders quite generally and demanded that orders be carried out. It was very tragic for a number of persons, not only within the framework of these experiments, but also in other situations that they had to work under such orders. Without considering the entire situation as it prevailed in Germany, one cannot understand the question of these particular experiments at all.


EXTRACTS FROM THE TESTIMONY OF DEFENSE WITNESS
DR. FRIEDRICH HIELSCHER[7]

DIRECT EXAMINATION

Dr. Weisgerber: Witness, your name is Friedrich Hielscher?

Witness Hielscher: Friedrich Hielscher.

Q. You were born on 31 May 1902 in Plauen, and you are now living in Marburg, that is right?

A. Yes.

Q. What is your profession?

A. I am a scholar.

Q. And since when have you taken an active part in politics?

A. Since 1927.

Q. Did you belong to a definite political ideology?

A. No. I had a group of students to whom I expounded my historical and philosophical theories and ideas.

Q. How did it happen that you became an opponent of the NSDAP so early?

A. From the information available to me I knew the personal inferiority of the National Socialist leaders. I could observe that they were constantly lying and that what they really wanted was undesirable.

Q. Did you believe, as early as 1928, that the NSDAP would come to power?

A. No, not in 1928. In 1930, after the first election battle at which the Party was victorious, I considered it possible. In 1931 I considered it probable. In 1932 I felt that it was certain.

Q. Did you join any definite political party with the intention of combating the NSDAP?

A. No. I considered it impossible for any of the 33 German parties, with their bureaucratic methods, to be able to prevent a fascist dictatorship, or if it had come into existence, to overthrow it.

Q. What methods did you think were the right ones?

A. The fascist dictatorship is a mass machine in a technical age. Therefore it seemed to us to be out of the question, when confronting such a mass body, to act openly. It seemed impossible to carry out propaganda publicly. We were convinced that the only thing possible was to form very small cadres which would not be recognizable to an outsider and which at the proper time could be employed for a coup d’etat.

Q. Then that was more or less the method of the Trojan Horse?

A. Yes.

Q. Were you, in your ideas and in your efforts to combat this movement alone or did you have associates?

A. First, a selected group of my students were willing to collaborate in this illegal work; second, I knew quite a number of personages of various political backgrounds with whom I agreed that this regime would not last.

Q. That was before 1933?

A. That was around 1933—1932-33.

Q. Now came the 30th of January 1933, the so-called seizure of power, and now your real work began. How and when did you apply your method of the Trojan Horse?

A. This group of my students, who were willing to collaborate, I made into an illegal organization, with dues, secrecy, and other necessary conditions, and I appointed people who were willing and suitable to get into important Party positions.

Q. When and how did you meet the defendant Wolfram Sievers?

A. As far as I can recall, I met Sievers about 1929, on one of my historical-philosophical lecture trips. He was a Boy Scout at that time. He spoke up during the discussion and we took a liking to each other.

Q. Did Sievers show at that time that he was opposed to the NSDAP?

A. That was a matter of course with the people with whom I had anything to do at all.

Q. And did you consider him suitable to work in your circle?

A. Yes.

Q. In 1929 Sievers joined the NSDAP. Was that done with your knowledge?

A. Yes.

Q. Did you advise him to do so or how did it come about? There had to be some special reason, since you were both opponents of this political party.

A. That was the first time, aside from 1923, when the NSDAP was talked about, and it was useful to know what was going on in this growing machine—were there any people of good will within the machine, what were the leaders doing, what plans were being made, what organization was being set up.

Q. Then first of all you wanted to find out what intentions the NSDAP had?

A. Yes, and specifically in the youth work, because that had to be the most important in the long run.

Q. Now, in 1931 Sievers resigned from the NSDAP again; did he do that with your knowledge?

A. Yes.

Q. On your orders?

A. Yes, one might say that. We discussed it, and I considered it the thing to do.

Q. Now, why should he suddenly leave the Party since he had been sent into the Party with the definite purpose of getting information?

A. He had found out what he was to find out, the nature and the make-up, especially of the youth organization. It was just as inferior as we had thought, and even at that time it was so corrupt that without any further plan—and we had no plan at the time—without any further plan it was not necessary to have him continue.

Q. Now, in the year 1933, Sievers, as the Tribunal has already been told, again joined the NSDAP; was this also done on your behalf?

A. Yes. At that time we were already a thoroughly organized organization. We were already asking for volunteers, who were willing and who were capable of working up in the sense of the Trojan Horse. Sievers seemed suitable, and he was willing.

Q. Were you able to get him any position within the Party?

A. No. I was not able to help him to obtain any position, and in the second place I had no intention of telling the individual persons whom I trusted, in detail, what they were to do.

Q. Then it was up to the skill of the individual to get into a position from which he would be able to carry out the assignment which you gave him?

A. Yes.

Q. And how did Sievers obtain this position?

A. He got into this with Hermann Wirth in the Ahnenerbe.

Q. Who was Hermann Wirth?

A. Hermann Wirth was a rather crazy student of pre-history, who had excellent material and terrible concepts.

Q. Was Wirth already in contact with the Ahnenerbe at that time?

A. As far as I know he was one of the founders.

Q. Then, as you say, Sievers got in contact with Wirth, and through Wirth he got into the Ahnenerbe?

A. Yes. He was there from 1935 on as Reich Business Manager.

Q. Now, did you give Sievers any specific assignment in the spirit of your movement?

A. As soon as it was clear that there was a possibility of exploiting Himmler’s racial romancing and half-education, the assignment developed to gain Himmler’s confidence with the aid of the Ahnenerbe and to get as close to him as possible. We, that is my group, were among the people who very early recognized the special personal danger of Himmler, and in the second place from the beginning we had been determined that one day we would have to overthrow the Party regime by force, and for that purpose one has to get as close as possible to the most dangerous man.

Q. And what were the duties which Sievers had this time? When he first belonged to the NSDAP, you said he was to get information about the intentions of the youth movement of the NSDAP.

A. This time, of course, he had to get as many details as he could from the office of the Reich Leader SS, and transmit them to us. We had to protect people. We had to build up camouflage positions. We had to help the other people and in turn to remain unrecognized.

Q. And how did Sievers carry out these duties?

A. Well, it will be best if I begin with myself. I myself was known and considered undesirable by the Party leadership.

Q. You mean the NSDAP?

A. Well, yes, of course. The Party leaders knew me and considered me undesirable. I had already been under arrest and had had my house searched. I was watched by the Gestapo, and in order to build up my organization I needed to be able to travel anywhere without arousing suspicion. Consequently, Sievers gave me a fake research assignment, which was to study Indo-Germanic culture, customs of the annual festivals.

Q. Sievers said during direct examination that he himself could not issue any research assignments; you said that you received a fake research assignment from him; wasn’t this research assignment actually issued by the curator, Professor Wuest?

A. Yes. If things were going well, and Wuest was in a good mood, or had been drinking with Sievers, it was possible to persuade him to do something, and so he succeeded in persuading Wuest that I was efficient for this research assignment, and so I was given this assignment. And what concerned Indo-Germanic customs could be found anywhere. I was given a false pass as a section chief, though I was not a section chief, and was not a member of the SS nor the Ahnenerbe.

Q. And with this pass you were able easily to get visas to go abroad?

A. Not necessarily. I needed a little more for that purpose, but it was easier.

Q. Then the actual purpose of this fake research assignment was that you, who were a suspect, might appear in a more harmless light and would be able to move rather freely and without supervision?

A. Yes.


Q. What did Sievers do in order to further the activities of your organization?

A. For instance, he took care of supplying all information which was of importance. He told us what troops of the Waffen SS were in Germany during the war. He gave us fake official trips and he worked out a plan for an assassination, which was to be carried through by our group in case the generals’ plan did not come off. We all thought it was not safe to rely on the generals. In March 1944, Werner Haften told me by order of Stauffenberg that one would have to take into account the fact that the generals would have to be moved into action by a certain assassination and everyone was to make his own preparations, in case he had any, in such a manner as if he was the only one active. That was the situation in March 1944. We worked out a substantial plan to remove, if possible, Himmler and Hitler simultaneously, but in case of doubt Himmler himself. We were of a completely different opinion there than the other groups.

Q. What concrete preliminary work was done for the assassination in your group?

A. Sievers was the only one in our group who came into question regarding that assassination because he was the only one so close to Himmler. He was therefore assigned this task and we worked out this matter as far as the detailed plan was concerned; all that was necessary now was to press the button.

Q. And for what period of time was this assassination intended?

A. We started our preparations in the year 1943, and we could have started at the earliest at the end of 1943. Then we finally thought of the middle of 1944 because Schulenburg and Luening told me that the generals would be ready around that time.

Q. Well, an assassination is a matter for quick decision. Is it not true, therefore, that all these long preparations that you are telling us about are rather surprising?

A. The following would have to be taken into consideration: Around Himmler and Hitler there was a strong guard, a strong ring of guards, through which none could get unless he was carefully searched and checked. Secondly, and that I already emphasized, one did not have to be quite sure that the generals would carry out that assassination, but one had to be sure that a sufficient number of generals were ready to remove the National Socialist system immediately after the assassination, for the elimination of just these two people would have no political purpose whatsoever. We did not intend to carry out a Putsch but we intended to remove a political system, a political order, and for that reason we had to wait until the situation became right and the generals were ready.

Q. Now, the question crops up whether these plans for the assassination of Hitler and Himmler were only in your fantasy, or the fantasy of your collaborators, or was there any real basis or concrete preparation for such assassination?

A. I already said that the preparations had been worked out in the detailed technical points insofar as the location, the shooting, etc., were concerned.

Q. And who would have assassinated Himmler and Hitler?

A. Sievers was to do that and a few young men belonging to my organization.

Q. And why was it in effect not carried out?

A. After the Stauffenberg assassination had failed, the Wehrmacht circles that came into question were eliminated by Himmler and therefore it was no longer possible to remove that system. The only consequence of any attempted assassination would have been—since the foreign political situation would not have changed—that the people would have said again, “This is the stab in the back for the victorious front line.”

Q. What did Sievers do to further your activity in addition to what you have already said?

A. He, for instance, supported my representative, Arnold Deutelmoser, when he was put on the list of those who were to be removed under the pretext of the assassination which took place in Munich at the Buergerbraeu. He also protected Bomas who was working in the Netherlands. He protected Dr. Schuettelkopf whom we had sent into the RSHA and it was possible for him in turn to send me to Sweden. He saved Niels Bor, Professor Seyb of Oslo University, and he saved a number of Norwegian students, etc.

Q. Do you know that Sievers informed you about Himmler’s double play in the case of the minister Popitz, and that as a consequence he saved that entire group against measures by Himmler?

A. Yes. The following thing happened. One day Sievers approached me and said that he had just heard Himmler ridicule in a close circle an attempt on the part of Popitz. He said that Minister Popitz with the mediation of the lawyer Lampe had approached Himmler and tried to persuade him to bring about a change of the National Socialist system, perhaps by removing Hitler. He said Himmler thought it was very funny that these men had so little sense as to think of him in that connection. Thank God one could enter negotiations with them because certainly nobody in the country was behind these people, but it did seem that these gentlemen had many foreign political relationships and it would be advisable to find out what in effect was behind it all and to enter into negotiations with them. We were quite surprised about the naive attitude shown by Himmler, and I sent Deutelmoser to Reichwein whom I knew had connections with Popitz. In that way Popitz was warned. Reichwein was so surprised and hardly wanted to believe the situation.

I was asked to participate in a conference, and Reichwein after having convinced himself that all of this was true promised to warn all of the gentlemen concerned in Berlin and then asked Deutelmoser, who was to go to Norway shortly thereafter to notify Reichwein’s friend, Stelzer, the present Minister President of Schleswig-Holstein, in order to see that he, too, took the necessary precautionary measures. In this way we hoped that a number of these people had actually been saved. Popitz, however, himself was careless and was captured.

Q. This conspiracy could not have been carried out unless you had the necessary financial means at your disposal. How did you get these means?

A. Everyone of our people, be it man or woman, had agreed to give up ten percent of their monthly income for that illegal work. Many gave a substantially larger sum.

Q. How about Sievers?

A. Sievers gave more than he had to.

Q. Do you know the case of the three hundred Norwegian students who on the basis of Sievers’ intervention were released from the concentration camp Buchenwald?

A. Yes. Terboven, or some other official in Norway, disliked some demonstration which occurred there, and as a result arrested three hundred students. Through some dark channels they were brought into the concentration camp at Buchenwald. Sievers found out about that, and if I remember correctly, he was in a position to see to it that these students were released from the concentration camp, making use of Himmler’s Nordic ideas to this end.

Q. In that case you think that Sievers’ activity was substantially important for your resistance movement?

A. Yes. That was true of my organization, for he protected and covered me as its chief, and, secondly, as far as I know, he was the only man belonging to any resistance movement who was as close as he to the Reich Leader SS. If any other group had brought any such information as he did, I would have noticed that it could have only come from the same source.

Q. Witness, I shall have a document handed to you which was submitted by the prosecution. This is Document NO-975, Prosecution Exhibit 479. It is a letter sent by Sievers to Dr. Hirt. Would you please look at that letter?

A. Yes.

Q. This letter contains a tone of voice which seems to indicate that he tried to cover Dr. Hirt’s activity. Dr. Hirt was working in the Anatomical Institute of the Strasbourg University. I assume, for reasons which we shall mention later, that you know Hirt’s name. How do you explain that tone in this letter?

A. I think that this is very proper and praiseworthy. I would have thought it very foolish of Sievers if he adopted any other tone in any of his official correspondence. It was his task to say “yes” but act in a negative way. There couldn’t have appeared any pretense of any disapproval on his part. The more active one had to be in an anti-National Socialist way, the more one had to speak in favor of National Socialism.

Q. I shall now turn to another complex of questions. Sievers is indicted in this trial as having participated in a number of crimes. Did Sievers at any time tell you about the so-called research assignments of Dr. Rascher and Dr. Hirt who was just mentioned? These were experiments carried out in the concentration camps.

A. Sievers, as far as I remember, came to me in the year 1942 and told me very excitedly that Himmler in his desire to extend the Ahnenerbe Society had embarked on the thought of including experiments on human beings in the work of the Ahnenerbe Society. He said that he did not succeed in frustrating that. He said that he had no desire whatsoever to participate in these horrible acts and asked me what to do. At that time we considered this horrible situation very thoroughly and thought of what we could do. It was quite clear to us what the SS intended here, and it was questionable whether responsibility could be assumed for any such acts, whether it would be advisable to be the instrument of Himmler if he embarked on any such acts, measures where human beings were degraded to the level of insects.

The following considerations proved to be decisive for us: If Sievers left, not one person, not one subject in these experiments would be saved. If Sievers stayed there as a technical secretary, he could throw sand into that machinery and would, perhaps, be in a position to save somebody. In addition, the entire plan and the entire overthrow of the Party stood or fell with Sievers staying at his post. The experiments on human beings were only part of this horrible Party system, and one had to concentrate on the decisive points in order finally to remove everything, and, as I have said before, there was no other way into the staff of the Reich Leader SS. We therefore concluded that if Sievers resigned because of that, it was sure that he would be eliminated and probably all the people he had ever entrusted with a research assignment, and everything that we had done so far would be lost if he left, and if anyone was to be saved at all, he could only be saved by Sievers remaining at his post.

Q. If I have understood you correctly, Sievers at first wanted to resign from his position as Reich Business Manager of the Ahnenerbe?

A. Yes. That is correct.

Q. Did Sievers approve of these arguments which you and your friends put forward in favor of his staying with the Reich Leader SS as the Reich Business Manager of the Ahnenerbe? Did he do it immediately or only after trying to persuade him for some time?

A. This took a number of days, because Sievers, according to his nature, was softer than many of us and did not want to agree with us. We finally had to appeal to his sense of duty and persuade him that he had to do it and that it was the only way.

Q. Among other matters, it was considered that by Sievers remaining at his post, there would be a possibility of mitigating these horrible experiments?

A. The chance wasn’t very great but we were convinced that this would be the only way possible, if at all. Then it could only be done in that manner. If I may say so, this was such a horrible situation that we always had to come back to it and we were very lucky at least to have the hope of saving a number of people. Other opponents of the SS system have told me about similar dilemmas which were just as difficult, and where the alternative was yet more horrible, and where persons, according to my belief and knowledge, acted correctly. If the Tribunal would permit me I could relate a few almost incredible situations which were even worse.

 

Presiding Judge Beals: In what connection are these narrations, Witness?

Witness Hielscher: In connection with the question as to whether it was morally justifiable to enable Sievers to remain at his post.

Presiding Judge Beals: Such matters as that would not be material in this inquiry.


CROSS-EXAMINATION


Mr. Hardy: Now, what did Sievers ever tell you about the Sievers-Hirt skeleton collection? Did he ever tell you about that?

Witness Hielscher: Yes. He told me that Himmler had ordered—as far as I know, it was in connection with Jewish commissars who were under this terrible execution order which was valid in the East—that some of them were to be selected and used for the skeleton collection. The order was from Himmler, as Sievers reported to me.

Q. And did you know what they were going to do with these people?

A. Yes. It was the same as in the experiments. There a danger of death was a possibility; here it was certain.

Q. You knew, of course, that they were going to stand these people up, pick them out, select them according to size, take their anatomical measurements, then ship them to Natzweiler and at Natzweiler kill them, then deflesh them, then send the skeletons to the Strasbourg University for collection? And you knew that?

A. Yes.

Q. A fine thing for a resistance man to be involved in, isn’t it?

A. The situation, as I have said repeatedly, was as follows: We made no distinction in the real evaluation of the skeleton collection and other experiments in which there was this so-called “volunteering” and in which the result was the same—in our eyes, they were the same thing. I should like to emphasize one more thing. Does one have the moral right to tolerate a lesser evil in order to prevent a greater evil?

Q. Just a moment. Now in connection with the skeleton collection, do you further know that they dispensed with the idea of taking Jewish commissars but selected Jewish inmates of concentration camps?

A. Yes. What particular persons were selected I do not know, of course, but I knew that a number of Jews were to be gassed and were selected for this anthropological collection. That was the same case as in the Ghetto of Lodz. The Jewish commander of the Ghetto—that was Lieutenant Rosenblatt—after he had gained confidence in me because I had gone in with a false pass, said personally to me: “I was picked out by the SS. When a new group of Jews comes into this Ghetto of Lodz and crowds the Ghetto, I have to select exactly the same number of Jews and I know that they will be gassed. That is, I was selected by the SS to determine who is to be gassed. Now, I ask you in the name of God, Mr. Hielscher, you are a Christian, what am I to do? I had nothing to do with that. I have asked the Rabbis. I have asked the old people themselves, and we have come to the conclusion that I must stay in this office. At least I can determine the persons—I can at least select the oldest people who can’t stand life in a ghetto and perhaps, in this way, perhaps I will be able to save the life of one person. These two old people that I am telling you about were about seventy years old. There were five Christians among the Jews. At least I was able to see that these two old people were gassed together. They asked me to tell their daughter that we were able to achieve at least that. Tell me, did I do right or not?” That is still more horrible because the man could not even reduce the number. I was ashamed that the people who were in charge of this camp were called Germans. But I said: “You have acted right and you are justified in the eyes of God.”

Q. Now, Dr. Hielscher, I assume that the defense counsel has shown you all the documents concerning the skeleton collection. Is that right?

A. Yes.

Q. There won’t be any need for me to go over them. You have stated in connection with the one document that was presented to you today on the stand that this was a very praiseworthy act on the part of Sievers in a negative way. Since you are familiar with all the skeleton collection documents—I had intended to go into each one but I will just go into that one. That is Document NO-088, Prosecution Exhibit 182. This is a document which was written by Sievers. You will see that his signature appears thereon. Do you recognize the signature at the bottom of the letter?

A. Yes.

Q. Well, Sievers here is proposing a way in which they can destroy the skeleton collection so that it will not be known to any one—that is, to the Allies when they overrun Strasbourg. And you will notice, two-thirds of the way through, the one paragraph that states: “The viscera could be declared as remnants of corpses apparently left in the anatomical institute by the French.” You see that?

A. Yes.

Q. “In order to be cremated.” Now this is an idea of one Wolfram Sievers, wherein he is suggesting that these, or the results of these criminal activities be left so that they may, by the Allies, be blamed on to the French, and bearing in mind, of course that the French, as well as the United States, Great Britain, and other Allies were equally as interested as the resistance movements in defeating the Nazi regime, were they not?

A. I have already said that it was Sievers’ duty to say “yes” and to act negatively, but, of course, I did not praise this action, but I praised the vocabulary, the formulation. He spoke like a Nazi. The concrete question in such a case was simply as follows: Can anyone be saved here or not? If no one can be saved, what can I do to keep up the appearance of a Nazi since I know that Obersturmbannfuehrer Neuhaus suspects that I have some contact with the resistance movement? Sievers, since the 20th of July, or rather since my arrest, was constantly seeing to it that his actions looked like Nazi actions, insofar as no one was actually killed; that was part of his duty, part of the mask without which the organization could not operate.

Q. Yes. But from this letter does it not suggest that he was willing to allow an innocent Frenchman to answer for the crimes which flowed out of this skeleton collection activity?

A. If you show me—

Q. I have asked you—does it not appear from this letter, this letter signed by Sievers, that he was willing to allow a Frenchman to suffer for the crimes committed during the course of the collection of these skeletons?

A. Yes. The letter quite deliberately, I believe, creates this impression. That was the purpose of it, like all such letters.


EXTRACT FROM THE TESTIMONY OF PROSECUTION EXPERT WITNESS
DR. ANDREW C. IVY[8]

CROSS-EXAMINATION


Dr. Servatius: Witness, take the following case. You are in a city in which the plague is raging. You, as a doctor, have a drug that you could use to combat the plague. However, you must test it on somebody. The commander, or let us say the mayor of the city, comes to you and says, “Here is a criminal condemned to death. Save us by carrying out the experiment on this man.” Would you refuse to do so, or would you do it?

Witness Dr. Ivy: I would refuse to do so, because I do not believe that duress of that sort warrants the breaking of ethical and moral principles. That is why the Hague Convention and Geneva Convention were formulated, to make war, a barbaric enterprise, a little more humane.

Q. Do you believe that the population of a city would have any understanding for your action?

A. They have understanding for the importance of the maintenance of the principles of medical ethics which apply over a long period of years, rather than a short period of years. Physicians and medical scientists should do nothing with the idea of temporarily doing good which, when carried out repeatedly over a period of time, would debase and jeopardize a method for doing good. If a medical scientist breaks the code of medical ethics and says, “Kill the person,” in order to do what he thinks may be good, in the course of time that will grow and will cause a loss of faith of the public in the medical profession, and hence destroy the capacity of the medical profession to do its good for society. The reason that we must be very careful in the use of human beings as subjects in medical experiments is in order not to debase and jeopardize this method for doing great good by causing the public to react against it.

Q. Witness, do you not believe that your ideal attitude here is more or less that of a single person standing against the body of public opinion?

A. No I do not. That is why I read out the principles of medical ethics yesterday, and that is why the American Medical Association has agreed essentially to those principles. That is why the principles, the ethical principles for the use of human beings in medical experiments, have been quite uniform throughout the world in the past.

Q. Then you do not believe that the urgency, the necessity of this city would make a revision of this attitude necessary?

A. No, not if they were in danger of killing people in the course of testing out the new drug or remedy. There is no justification in killing five people in order to save the lives of five hundred.

Q. Then you are of the opinion that the life of the one prisoner must be preserved even if the whole city perishes?

A. In order to maintain intact the method of doing good, yes.

Q. From the point of view of the politician, do you consider it good if he allows the city to perish in the interests of preserving this principle and preserving the life of the one prisoner?

A. The politician, unless he knows medicine and medical ethics, has no reason to make a decision on that point.

Q. But as a politician he must make a decision about what is to happen. Shall he coerce the doctor to carry out the experiment, or shall he protect the doctor from the rage of the multitude?

A. You can’t answer that question. I should say this, that there is no state of no politician under the sun that could force me to perform a medical experiment which I thought was morally unjustified.

Q. You then, despite the order, would not carry out the order, and would prefer to be executed as a martyr?

A. That is correct, and I know there are thousands of people in the United States who would have to do likewise.

Q. And do you not also believe that in thousands of cities the population would kill the doctor who found himself in that position?

A. I do not believe so because they would not know. How would they know whether the doctor had a drug that would or would not relieve? The doctor would not know himself, because he would have to experiment first.

Q. Witness, I put a hypothetical case to you. If we are to turn to reality other questions would arise. I simply want to hear now your general attitude to this problem. You are then of the opinion that a doctor should not carry out the order. Are you also of the opinion that the politician should not give such an order?

A. Yes. I believe he should not give such an order.

Q. Is this not a purely political decision which must be left at the discretion of the political leader?

A. Not necessarily. He should seek the best advice that he can obtain.

Q. If he is informed that this one experiment on this one prisoner would save the whole city, he may give the order despite the fact that the doctor does not wish to carry it out, is that what you think?

A. He could then give the order, but if the doctor still believed that it was contrary to his moral responsibilities, then the doctor should not carry out the order.

Q. That is another question, whether or not he carries it out, but in such cases you consider it is permissible to give that order, is that what I understood you to say?

A. After he has obtained the best advice on the subject which he can obtain.

Q. Then he can give the order. Yes or no?

A. Yes.


G. Subjection to Medical Experimentation as Substitute
for Penalties

a. Introduction

Several of the defendants argued that medical experiments, alleged as criminal, upon concentration camp inmates were justified because they were a substitute for penalty or punishment previously imposed on the experimental subjects. Counsel for the defendant Gebhardt argued that the experimentation amounted to a complete pardon as sentences of death had been imposed and hence that the experimentation, not always deadly, saved human lives. The prosecution’s argument on this point is illustrated by an extract from the closing statement, set forth on pages 44 to 49. On this general question, selections have been taken from the closing brief for the defendant Karl Brandt and from the final plea of the defendant Gebhardt. These appear below on pages 49 to 56. The following selections from the evidence appear in pages 56 to 61: extract from the direct examination of the defendant Mrugowsky; cross-examination of the prosecution’s expert witness, Dr. Andrew C. Ivy.

 

b. Selection from the Argumentation of the Prosecution

EXTRACT FROM THE CLOSING STATEMENT OF THE
PROSECUTION
[9]


Another of the rather common defenses urged by the defendants is that the experimental subjects were criminals condemned to death who, provided they survived the experiment, were rewarded by commutation of their sentence to life imprisonment in a concentration camp. For one who has even the slightest knowledge of the conditions in concentration camps and the life expectancy of an average inmate, this alleged defense assumes the aspect of a ghastly joke. We need only recall the remark made by one of the women used by Rascher to reward his frozen victims in Dachau, who when asked by him why she had volunteered for the camp brothel, replied: “rather half a year in a brothel than half a year in a concentration camp.” But the defects in this spurious defense run much deeper. Concentration camps were not ordinary penal institutions, such as are known in other countries, for the commitment of persons convicted of crimes by courts. The very purpose of concentration camps was the oppression and persecution of persons who were considered undesirable by the Nazi regime on racial, political, and religious grounds. Hundreds of thousands of victims were confined to concentration camps because they were simply Jews, Slavs, or gypsies, Free Masons, Social Democrats, or Communists. They were not tried for any offense and sentenced by a court, not even a Nazi court. They were imprisoned on the basis of “protective custody orders” issued by the RSHA. Tens of thousands were condemned to death on the single order of Himmler, who, as Gebhardt put it so well, “had the power to execute thousands of people by a stroke of his pen.” (Tr. p. 4025.) There were, indeed, a relatively small group of inmates who might be classed as ordinary criminals. These were men who had served out their sentences in an ordinary prison and then were committed to concentration camps for still further detention. A memorandum of 18 September 1942 by Thierack, the Minister of Justice, concerning a conversation with Himmler, tells us the fate of those unfortunates:

“The delivery of anti-social elements from the execution of their sentence to the Reich Leader SS to be worked to death. Persons under protective arrest, Jews, gypsies, Russians and Ukrainians, Poles with more than 3-year sentences, Czechs and Germans with more than 8-year sentences, according to the decision of the Reich Minister for Justice.” (654-PS, Pros. Ex. 562.)

The proof in this case has demonstrated beyond all doubt that so-called criminals sentenced to death were very rarely used in any of the experiments. True it is that Himmler said prisoners condemned to death should be used in those high-altitude experiments where the long-continued activity of the heart after death was observed by the experimenters. He was generous enough to say that if such persons could be brought back to life, then they were to be “pardoned” to concentration camp for life. But even this unique amnesty had no application to Russians and Poles, who were used exclusively in those experiments.

But, assuming for the moment, that this alleged defense might have a mitigating effect under some circumstances, it certainly has no application to this case. Be it noted that this is an affirmative defense by way of avoidance or mitigation. There has been no proof whatever that criminals sentenced to death by an ordinary court could possibly be executed in a concentration camp. Such matters were within the jurisdiction of the Ministry of Justice, not Himmler and the SS. The experimental subjects we are dealing with are those that Himmler could condemn by a “stroke of his pen.” If the inmate used in the experiments was condemned for merely being a Jew, Pole, or Russian, or, for example, having had sexual intercourse with a Jew, it does not answer the criminal charge to say that the victim was doomed to die. Experimentation on such a person is to compound the crime of his initial unlawful detention as well as to commit the additional crime of murder or torture. As has been said by another tribunal, “Exculpation from the charge of criminal homicide can possibly be based only upon bona fide proof that the subject had committed murder or any other legally recognized capital offense; and, not even then, unless the sentencing tribunal with authority granted by the state in the constitution of the court declared that the execution would be accomplished by means of a low-pressure chamber.”[10]

In this connection, it might be noted that German law recognized only three methods of execution, namely, by decapitation, hanging, and shooting. (German Penal Code, Part I, Section 13; Reichsgesetzblatt [Reich Law Gazette], 1933, Part I, p. 151; Reichsgesetzblatt 1939, Part I, p. 1457.) Moreover, there is no proof that any of the experimental subjects had their death sentence commuted to any lesser degree of punishment. Indeed, in the sulfanilamide crimes it was the experiment plus later execution for at least six of the subjects.

Since the defendants Gebhardt, Fischer, and Oberheuser have put particular stress on this alleged defense, I should like to make a few remarks in that connection, but it should be remembered that they apply with equal force to most of the other defendants. Gebhardt, speaking for his co-defendants Fischer and Oberheuser, took the position that the Polish women who had been used in the sulfanilamide experiments had been condemned to death for participation in a resistance movement and that by undergoing the experiments voluntarily or otherwise, they were to have their death sentences commuted to some lesser degree of punishment, provided they survived the experiments. This was no bargain reached with the experimental subjects; their wishes were not consulted in the matter. It was, according to Gebhardt, left to the good faith of someone unnamed to see to it that the death sentences were not carried out on the survivors of the experiments. Certainly Gebhardt, Fischer, and Oberheuser assumed no responsibility or even interest in that regard.

It should be pointed out that the proof shows that the experimental subjects who testified before this Tribunal were never so much as afforded trial; they had no opportunity to defend themselves against whatever crimes they were said to have committed. They were simply arrested and interrogated by the Gestapo in Poland and sent to the concentration camp. They had never so much as been informed that they had been marked for, not sentenced to, death. Article 30 of the Regulations Respecting the Laws and Customs of War on Land, annexed to the Hague Convention, specifically provides that even a spy “shall not be punished without previous trial”.

Gebhardt would have the Tribunal believe that but for the experiments all these Polish girls would be dead; that he preserved the evidence which was used against him. Nothing could be further from the truth. There is no proof in the record that these women would have been executed if they had not undergone the experiments. The witness Maczka is living proof of the contrary. She was arrested for resistance activities on 11 September 1941 and shipped to Ravensbrueck on 13 September. She was not an experimental subject yet she lives today. Substantially all of the Polish experimental subjects arrived in Ravensbrueck in September 1941. These girls had not been executed by August 1942 when the experiments began. There were some 700 Polish girls in that transport. There is no evidence that a substantial number were ever executed even though most of them were not experimented on.

The proof submitted by the prosecution has shown beyond controversy that these Polish women could not have been legally executed. The right to grant pardons in cases of death sentences was exclusively vested in Hitler by a decree of 1 February 1935. On 2 May 1935, Hitler delegated the right to make negative decisions on pardon applications to the Reich Minister of Justice. On 30 January 1940, Hitler delegated to the Governor General for the occupied Polish territories the authority to grant and deny pardons for the occupied Polish territories. By edict dated 8 March 1940, the Governor General of occupied Poland ordered that—

“The execution of a death sentence promulgated by a regular court, a special court, or a police court martial, shall take place only when my decision has been issued not to make use of my right to pardon.” (NO-3073, Pros. Ex. 534.)

Thus, even though we assume arguendo, that the experimental subjects had all committed substantial crimes, that they were all properly tried by a duly constituted court of law, and that they were legally sentenced to death, it is still clear from these decrees that these women could not have been legally executed until such time as the Governor General of occupied Poland had decided in each case not to make use of his pardon right. There has been no proof that the Governor General ever acted with respect to pardoning the Polish women used in the experiments, or, for that matter, any substantial number of those not used in the experiments. The only reason these 700 Polish women were transported from Warsaw and Lublin to Ravensbrueck, in the first place, was because the Governor General had not approved their execution. Otherwise they would have been immediately executed in Poland. At the very least, these women were entitled to remain unmolested so long as the Governor General took no action. He may never have acted or, when he did, he may have acted favorably on the pardon. Who is to say that the majority of these 700 women did not live through the war even though they did not undergo the experiments? Certainly it was incumbent on the defense to prove the contrary by a preponderance of the evidence. This it did not do by any evidence.

The defendants Gebhardt, Fischer, and Oberheuser certainly cannot claim that they believed in good faith that the Polish women could have been legally executed. Even the camp doctor, Schiedlausky, knew that the Governor General had to approve each execution. Moreover, the large number of 700 women being sentenced to death at this early stage of the war was enough to put any reasonable person on notice that something was wrong.

Additionally, the uncontroverted evidence proves that survival of the experiments was no guarantee whatever of avoiding execution in any event. At least six of the experimental subjects were proved to have been executed after having survived the experiments. It was not a question of the experiment or execution but rather the experiments and execution. Indeed, in February 1945, an effort was made to execute all of the experimental subjects but, because of confusion in the camp due to the war situation, the experimental subjects were able to obtain different identification numbers and so avoid detection.

But even if one takes the case of the defense at its face value, the Tribunal is in effect asked to rule that it is legal for military doctors of a nation at war to experiment on political prisoners of an occupied country who are condemned to death, to experiment on them in such a way that they may suffer death, excrutiating pain, mutilation, and permanent disability, all this without their consent and in direct aid of the military potential of their enemy. There would, of course, be no valid reason for limiting such a decision to civilian prisoners; the experiments would certainly have been no worse had they been performed on Polish or American prisoners of war. It is impossible to consider seriously this ghoulish ruling being sought for by the defense.

 

c. Selections from the Argumentation of the Defense

EXTRACT FROM THE CLOSING BRIEF FOR DEFENDANT
KARL BRANDT


The Medical Experiments as Substitute for Penalty[11]

The indictment embraces certain medical experiments, which are called war crimes and crimes against humanity. According to paragraphs 10 and 15 of the indictment, these experiments are designated as crimes, as a violation of the general principles of criminal law as evolved from the penal law of all civilized nations, as well as violations of the national penal laws of the countries in which such crimes were committed. An indication of their punishable character was seen in the fact that the experiments were carried out without the consent of the persons experimented upon.

We must examine whether this consent of the person subjected to experiments is always necessary or whether it can be replaced by an order of the state through the penal administration, and further, if the same law applies to the execution of sentences on foreigners. If consent to the human experiment by the person experimented on can be replaced by an order of the state, then the person responsible for the experiment cannot be punished in cases where the experiments were carried out through the official penal administration in accordance with the order.

No legal regulations regarding the question of admissibility of medical experiments in civilized countries are known. However, it is a fact that such experiments have been carried out to a greater or lesser extent within the memory of man in all countries and up till now have remained unopposed. But with the development of medical knowledge and modern methods of research, experiments on human beings have increased considerably. Today, when research, to solve its problems and meet its challenges, has advanced into the most widely differentiated spheres, they are considered absolutely necessary. Accordingly, human experiments will continue to increase with the progress of science and the problem that this trial has raised will always be urgent.

Moreover, reference is made to the opinion of the Washington anatomist, E. V. Cowdry, on the necessity of human experiments in cancer research (Karl Brandt 50, Karl Brandt Ex. 56), and the order for human experiments on the part of the British Military Government for Professor McCance in Wuppertal. The knowledge of such experiments on human beings was, as literature shows, at first limited to medical specialist circles and the official authorities concerned. Only in recent times has the public been cautiously informed. (Becker-Freyseng 60, Becker-Freyseng Ex. 58.) Complete instruction of the public is only necessary so that, in case of an eventual discussion, sound judgment of the actions of the researcher may be possible.

Reference is also made to the remarkable publication on the malaria experiment on 800 prisoners in the United States, published in the widely circulated periodical “Life” (Karl Brandt 1, Karl Brandt Ex. 1). The number of the imprisoned persons to be experimented upon was even more than 2,000, according to the radio account submitted.

Repeated reports on such experiments have so far been received without opposition by specialist circles, the authorities, and also the general public. From that can be gathered what in principle is considered permissible and right by competent authorities and the public. The experiments actually carried out are a mirror of the existing laws and one can by way of legal sociological investigation find the norms of law that have validity. This is done where the law is not codified. In the same manner, the International Military Tribunal has derived the existing international law on the basis of its phenomena and the same procedure leads to the determination of the common law. Inasmuch as positive regulations exist in the United States which are contradictory to the law derived from the phenomena, these legal regulations must be produced or else the conclusions that can be drawn from the experiments must be regarded in favor of the defendant as valid law and an expression of fundamental principles of punishment.

The defense has in the present situation only very limited literature at its disposal for the comprehension and explanation of these legally important facts of the case. However, the little that is available is already so revealing that one must come to the conclusion that medical experiments on human beings are not only admissible on principle, but in addition, that it also does not violate the basic principles of criminal law of civilized nations to carry out experiments on convicts.

The question today is not whether experiments on human beings may be carried out but only under what circumstances and how these experiments may be undertaken. Moreover, the prosecution itself has declared that human experiments are admissible on principle.

It is not intended here to go into the experiments which were made on the healthy and the sick and corpus vile at the time when modern research was in its infancy and without participation of government authorities. Insight into those times can be obtained from the book by the Russian physician Wressajew “Confession of a Physician” (Karl Brandt 48, Karl Brandt Ex. 55), published about 1900. The book reveals some of the experiments that were then known to medical experts and it follows that the governments did not interfere but in the interest of medical progress permitted such experiments without trying to protect the individual as the person experimented upon. The states then either considered such experiments compatible with criminal law, or they acquiesced in the camouflaging of the “voluntariness” of the person experimented upon which was customary in consideration of the law. No governmental intervention as the result of such medical experiments is known.

With the development of health administrations, governmental supervision has been increasingly instituted in all countries and one can consider all that was admitted in medical experiments with the consent of the administration and without opposition as the sediment of the existing law. This is true particularly of recent times where governmental direction is on the increase.

Particular attention must be given here to the experiments in state institutes on convicts and those sentenced to death.


EXTRACTS FROM THE FINAL PLEA FOR
DEFENDANT GEBHARDT
[12]


The Agreement by the Experimental Persons as Legal Justification

I shall now deal with the individual reasons for the exclusion of injustice and guilt, which according to the result of the evidence preclude the culpability of the defendant’s behavior. I am hereby taking into consideration that the assumption of only one of the reasons for the exclusion of punishment which we shall now deal with suffices to justify the defendant’s behavior and to exonerate him of the offense in the sense of a personal culpability because of his commission or omission. The individual reasons for the exclusion of culpability are discussed without taking into consideration whether the examination of any further similar reasons is superfluous, since the assumption of another reason for the exclusion of culpability suffices to secure the intended success. Evidence has proved that the experiments for testing sulfanilamides were carried out, to begin with, on fifteen professional male criminals who had been sentenced to death. Had they survived the experiments, they would have been granted a pardon therefor. Considering that this part of the experiment is not a subject of the indictment, I need not go into detail about it.

To the second and third group (the sulfanilamide experiments) belonged as experimental subjects members of the Polish Resistance Movement, who, in view of their activity in this illegal movement, had been sentenced to death by German courts martial.

It is a principle of German criminal law that in any case the consent of the offender precludes the illegality of the action. This principle is not only found in German law but is an established part of practically all legal systems. Consequently, we have to examine the question whether the experimental subjects gave their consent to the experiments. When examining the question whether legally effective consent had been given, it will not matter so much whether the experimental subjects expressly declared their consent. However, if generally acknowledged principles are applied, one may presume that they expressed their consent in some obvious manner. It is clear that consent could also have been given tacitly and by conclusive action.

However, it is true that all the female witnesses examined in court testified that they did not give their consent to the experiments. The Tribunal, in evaluating these facts, will have to take into consideration that these witnesses were in a special position at that time, as they also are today. It stands to reason that under these circumstances many things may appear different to them today from the way they actually happened five years ago. It might be true that the experimental subjects did not give their actual consent to these experiments. It might even be true that they were not asked before the experiments whether they consented to the experiments. Nevertheless this would not exclude the possibility that, considering their position at that time and being certain that they could not escape execution in any other way, they nevertheless did consent to the experiments, however tacitly. This supposition would coincide with the fact that, for instance, none of the experimental subjects had ever made any complaint or mentioned to the defendant Fischer, who had regularly changed the dressings, that they did not consent to the experiments.

The Presumed Consent of the Experimental Subjects as
Legal Justification

The illegality of an action is excluded not only if the injured person agreed either actually or tacitly, but if there could have been a possible consent. These are the cases where the consent of the injured person could be expected normally, but where for some reason or another such a consent was actually not given. Numerous attempts have been made in legal literature and also in judicial decisions to do justice to this situation which so often occurs in practice. Not all of these theories need to be discussed since the decisive points of view have by now been clarified. At first an attempt was made to settle this question by applying the law referring to unauthorized acting for and on behalf of another person. Serious objections were raised against this transfer of concepts of civil law to criminal law. The criminal idea of consent is to be extended instead to include so-called supposed consent. I understand this as an objective judicial judgment based on probabilities, namely, that the person concerned would have given his consent to the action from his personal point of view if he had fully known and realized the situation. Wherever such a judgment could be applied, it should have the same effect as the judicial finding of an actual consent.

However, other courts and scientists base their reason for justification upon “action for the benefit of the injured person”. If correctly viewed, no actual contradiction to an assumed comment could be seen therein. On the contrary one may say perhaps that this could be considered as an independent argument for justification.

In modern literature and judicial practice, the tendency prevails to combine the two last mentioned viewpoints by demanding them cumulatively. It is not comprehensible, however, why such simultaneous existence of two arguments for justification should be required when each argument in itself is decisive.

A well-known teacher of criminal law in Germany stated the following conception of this idea: “Should the injured person not consent, the action in his behalf and for his benefit is to be considered lawful if his consent could have been expected according to an objective judgment. The primary justifying argument here is not that the injured person has waived his right of decision, but that a positive action was performed for his benefit.”

The practical result, in spite of the theoretical objections raised against such a combination, could hardly be different. For the “objective judicial sentence based on probabilities,” here applied for, which is decisive and upon which the so-called supposed consent would have to be based, will regularly result from an action that under given circumstances is performed for the “benefit of the injured person.”

Applying these general principles to the sulfanilamide experiments, there can hardly be any doubt that the experimental subjects would have agreed if they had been fully aware of their position. The experimental subjects had already been sentenced to death and their participation in these experiments was the only possibility for them to avoid execution. If the Tribunal now tries to assess the probability that the experimental subjects would have agreed to submit to those experiments if they had had full knowledge of the position and the certainty of their eventual execution, there can in my opinion be very little doubt as to the result of this examination.

Nor can there be two opinions regarding the question whether, under circumstances prevailing at that time, the utilization of the prisoners for these experiments was “in the interest of the wounded”.

The evidence has shown that the other members of the Polish Resistance Movement, who were sentenced to death by court martial and who were in the concentration camp at Ravensbrueck awaiting the confirmation of the verdict which was given by the Governor General of the occupied Polish territory, were really shot only after a complicated and protracted procedure. Their participation in these medical experiments was the only chance for them as condemned persons to save their lives. Their participation in these experiments was not only in their interest but it also seems to be inconceivable that the prisoners, if they had been fully aware of their position and had known of the forthcoming execution, would not have given their consent for the experiments.


The Defendant’s Erroneous Assumption of an Agreement by the
Experimental Subjects

The evidence has shown that the experimental subjects in Camp Ravensbrueck were not selected by the defendant Karl Gebhardt nor by any of the other defendants, but that the selection was made by the competent agency within the Reich Security Main Office in Berlin or the political department of the Ravensbrueck concentration camp. During the conference at the beginning of July 1942, in which the conditions for the experiments were agreed upon, it was expressly assured that the experimental subjects were persons sentenced to death who were to be pardoned if they survived the experiments.

In view of the fact that the defendant Gebhardt did not himself select the experimental subjects and that, on the other hand, no complaints of any kind on the part of the experimental subjects were ever reported to him,—the defendant Fischer was not in a position to make any personal observations along these lines either—we now must examine the question of the legal position of the defendant Gebhardt if he erroneously assumed the consent of the experimental subjects.

In criminal law it is a generally recognized principle that there can be no question of intentional action if there existed an erroneous assumption of justificatory facts. This principle can also be found in Article 59 of the German Penal Code.[13] But beyond that, this legal principle may be considered one of the principles which is generally valid and which is derived from the general principles of the criminal law of all civilized nations, thus representing an inherent part of our modern conception of criminal law. In application of this principle—and even if the Court does not consider the consent of the experimental subjects as proved and, therefore, does not provide the prerequisites for a legal excuse for objective reasons—we still cannot assume an intentional act on the part of the defendant Gebhardt if he acted under the “erroneous assumption of consent by the experimental subjects.”

The Erroneous Assumption of Probable Agreement

The same applies if the defendant Gebhardt erroneously assumed a probable consent of the experimental subjects. We do not mean here an erroneous assumption with regard to the legal suppositions of such a one, but the erroneous assumption of such facts, which, had they existed, would have induced the Tribunal to recognize the “probable consent.” I am referring here to my argumentation for the legal excuse represented by the “probable consent,” which I understand as “an objective opinion concerning the law, based on probability and according to which the person concerned would have consented to the act from his own personal standpoint, if he had been fully aware of the circumstances.” Provided that the defendant Dr. Gebhardt assumed the existence of such circumstances which seems certain according to the evidence, and even if he did so erroneously, the intent and thus the crime in this case would also be excluded according to the generally acknowledged principle.


d. Evidence

Testimony
Page
Extract from the testimony of defendant Mrugowsky56
Extract from the testimony of prosecution expert witness Dr. Andrew C. Ivy60

 

EXTRACT FROM THE TESTIMONY OF DEFENDANT MRUGOWSKY[14]

DIRECT EXAMINATION


Dr. Flemming: You know that General Taylor, in his opening speech, said that this experiment with aconitine had not been conducted in order to find an antidote to aconitine but in order to ascertain how long it takes to kill a human being in this manner. Please tell the Tribunal whether this concerned an experiment.

Defendant Mrugowsky: This was not an experiment in the actual sense of the word. It was the legal execution of five thieves, and some special facts were to be ascertained during this execution. The details were as follows: One day the chemist of the Reich Criminal Police Office, Dr. Wittmann, came to me. He asked me to attend an execution as the official doctor. As the reason for this request he added that in the General Government in Poland a high official had been injured when he was attacked with a revolver; that the bullet had inflicted only a harmless flesh wound, but nevertheless the person had died after a few hours with symptoms of poisoning. The person who had attacked him had been arrested, and the rest of the ammunition was a hollow ball which contained a crystallized poison. The Chemical Institute of the Reich Criminal Police Office tested this and found that it was aconitine. The ammunition was of Russian origin. There is no aconitine in Germany; it is imported. The question was whether this was the first case of the beginning of poison warfare against Germany. We had been expecting such a method of warfare for some time. For that reason there was not only criminal interest in clearing up this case but a general interest of the greatest importance. This ammunition was to be tested on five thieves who were to be executed anyhow, and it was to be seen whether this crystallized poison contained another poison which had not been found in the chemical tests. The remainder of the original Russian ammunition was to be used, and also German ammunition which had been made in imitation of the Russian. At the same time—and this was the main purpose of the experiment—it was to be discovered how much time would elapse between the injury and the appearance of the symptoms of poisoning, in order, if necessary, to be able to use an antidote. This question was of such great importance because an antidote to aconitine is hardly known, and if this had actually been the beginning of poison warfare, then efforts would have to be made immediately to find an antidote. Therefore, the head of the Reich Criminal Police Office asked me, and the Chief of the Criminal Technical Office also asked me, to participate in the execution myself, although that was not actually my work; but Dr. Wittmann said he did not know of any toxicologist except one in Berlin; they had all been drafted, and as a bacteriologist I had a certain amount of experience in symptoms of poisoning connected with bacteria and, therefore, he asked me to take over this job. I was rather unwilling to do so. I pointed out to Dr. Wittmann that the regular police in Vienna had a pharmacologist who was very experienced and I suggested that he should be called upon; but this was not done because of the poor communications resulting from the air warfare. Since, on the other hand, this question was doubtless of great significance and should not be postponed, I finally declared myself willing to fulfill this request. In accordance with the purpose of this job, I made not only the usual report, but a rather more detailed report on the symptoms of poisoning. There is the report which we have here in this prosecution document.

 

Q. You have said that this ammunition which was captured was of Russian production. How can that be proved?

A. The prosecution itself proved that. To this Document NO-201, Prosecution Exhibit 290, some files were attached which were not included in my report. There are three drawings of cross-sections of these bullets which were made and handed in to the Institute. The heading is “Poison bullet from a Russian pistol, calibre 7.65” and details about the construction of this bullet.

Q. You say that this photostatic copy of the drawings of the bullet was not part of your report. How is that shown? Will you compare the stamps in the diary?

A. The report which I handed in is dated 12 September 1944, and then the next day it was received by the Criminal Technical Office, and the receipt stamp carried the number “Secret 53”. The drawings, however, have a different secret journal number, that is, 15-1944. If the number G-53 was in September then, if the distribution of letters received is assumed to be even throughout the year, I should assume that the Reich Criminal Police Office received these drawings in March of the same year. At that time I did not know anything about this attack, and the experiment had not been started yet. Nor did I know any details about the possibility of such poison warfare.

Q. Who was present at the execution?

A. Dr. Ding, who happened to be in Berlin and whom I took with me in order to support my observations; it was he who conducted the actual medical examination. I, myself, merely ascertained the occurrence of death. Also Dr. Wittmann, representing the Criminal Technical Institute; also a representative of the camp commandant, I believe the adjutant; and an Untersturmfuehrer who performed the execution, that is, actually shot the people. It is possible that there were others whom I do not remember and whose names I do not know.

Q. Did you investigate in any way who these people were who were executed, and by what court they had been condemned to death?

A. I talked with the people; they understood German; they were apparently Germans. I considered them ethnic Germans [Volksdeutsche] of whom we had large numbers in Germany at that time. On the other hand, I knew that in concentration camps executions were carried out, and I had been told that this was an official matter and that there had to be an official representative of the camp commandant present. The fact that such a representative was present at this execution was sufficient for me to assume that the matter actually was official and, on the other hand, I had no opportunity to be informed of the sentence or anything like that.

Q. Then you did not see the death sentence order before it was carried out?

A. No. I did not have the opportunity because the doctor is merely called in to an execution to ascertain when death occurs, but I am convinced that it was not my duty to examine the sentence order, for I had nothing to do with the actual execution. The order was given by the representative of the camp commandant; someone who was attached to the commandant’s office actually shot the people, and I was merely there to ascertain when death occurred and to note the symptoms of poisoning, but Dr. Ding did the latter for me. The official information from a high authority was sufficient proof to me for the legality of the execution.

Q. In the case of two of the five thieves, the poison had no effect. You saw the suffering of the other three from the poison; why did you not shorten this suffering?

A. The sight of this execution was one of the most horrible experiences of my life. On the other hand, I could not shorten the symptoms for in the first place there was no antidote against aconitine available. If it is in the circulation, then there is no possibility of removing it. In the second place, it was the express purpose to find out how long the symptoms of poisoning last in order in later cases to be able to use an antidote, which it was hoped would soon be discovered.

Q. Did you know that executions in Germany can only be carried out by shooting, by hanging, or by beheading, and did you not have any misgivings when this execution was carried out in a different way?

A. I am not a jurist; I do not know the methods of execution. On the other hand, I have already said that in my opinion the state itself has the right to determine the method of death for its citizens in wartime and doubtless has the right to determine the method of an execution. Here the suspicion had arisen that poison war was beginning against Germany. This seemed to be supported by the finding of poison Russian ammunition. Since the investigations were carried out by the highest authorities in the Reich, I had no doubt about the juridicial admissibility upon which I, as a doctor, had no influence.

Presiding Judge Beals: Witness, were each of these men struck by more than one bullet or only by one bullet each?

Defendant Mrugowsky: Each one was shot only once in the thigh; two of these five persons were immediately killed by another shot, because the first shot of the poison ammunition had hit the artery in the thigh and their suffering was immediately stopped; but the others had only flesh wounds and after a certain period of time, symptoms of poisoning appeared; that was three people.

Dr. Flemming: Did you have anything else to do with the previous history of this execution?

Mrugowsky: No.


EXTRACT FROM THE TESTIMONY OF PROSECUTION EXPERT WITNESS
DR. ANDREW C. IVY[15]

CROSS-EXAMINATION


Dr. Servatius: Mr. President, I should like to ask your permission to put to the witness a small newspaper notice from the newspaper “The People” of 3 March 1946. This is an English newspaper. Regarding the defendants before the IMT, the following was stated: “The opinion of some people is that they should be condemned very soon.” Then it says: “Others believe that they should be made to expiate their crimes by helping to cure cancer, leprosy, and tuberculosis as experimental subjects.”

Is the thought of atonement contained therein?

Witness Dr. Ivy: Yes, but it is expressed in a hysterical manner.

Q. Yes. I agree with you.

Witness, do you believe that if a person does not volunteer for an experiment, the state can order such atonement?

A. No.

Q. Do you not believe that you can expect something of a prisoner that goes beyond his actual sentence if at the same time people outside prison are subject to such burdens?

A. No. Those ideas were given up many years ago in the science and study of penology. The primary objective of penology today is reformative, not punitive, not expiative.

Q. Witness, is that the recognized theory of penology throughout the whole world today?

A. It may not be the recognized theory throughout the whole world today, but it is the prevailing theory in the United States. There is one other aspect that is quite large and essential, and that is the protective aspect of imprisonment to protect society from a habitual criminal.

Q. Witness, if a soldier at the front is exposed to an epidemic and can be almost certain that he will catch typhus and deserts and hides behind the protecting walls of a prison, would you not consider it justifiable if he is persuaded to volunteer for an experiment that concerns itself with typhus?

A. Will you read the question again?

Q. If a soldier deserts from the front where typhus is raging for fear that he too will contract typhus and prefers to be imprisoned in order thus to save himself, do you think it is right for him to be persuaded while he is serving his sentence to subject himself to a typhus experiment?

A. As a volunteer? Yes.

Q. I see. And would you not take a step further, if this prisoner says, “No, I refuse, because if I do this there wouldn’t have been any point in my deserting; I deserted in order to save myself. My buddies may die but I would just prefer not to.”

A. The answer to that question is no.

Q. Don’t you admit that one can hold a different view in this matter?

A. Yes, but I don’t believe it could be justified.


H. Usefulness of the Experiments

a. Introduction

Both by testimony and argument the defense claimed that the medical experiments had generally been useful in furthering medical science, that in some cases the experiments alleged as criminal had increased the speed of the progress of medical science, and that in some cases there was no other alternative for the development of medical science except to conduct experiments on human beings. The prosecution, in addition to arguing that voluntary participation by the subject of experimentation was a prerequisite of legal experiments, argued that the experiments turned out to be entirely useless for medical science and human progress, and that in some cases it was doubtful if considerations of medical science played any controlling role in the decision to conduct the experiments.

Selections from the defense argumentation have been made from the final pleas for the defendants Becker-Freyseng and Beiglboeck. Extracts from these final pleas appear below on pages 62 to 64. A part of the opening statement of the prosecution (vol. I, p. 37 ff.) was devoted to this topic. Defense evidence on the usefulness of the experiments has been selected from the direct examination of the defendants Mrugowsky and Rose. Extracts from their testimony appear below on pages 66 to 70.

 

 

b. Selections from the Argumentation of the Defense

EXTRACT FROM THE FINAL PLEA FOR
DEFENDANT BECKER-FREYSENG
[16]


At the moment I consider one factor above all to be material. It is the following question: Was everything done, when the sea-water experiments were being planned, to furnish all data required for establishing the necessity of the experiments? And I think I can definitely answer this question in the affirmative.

The defense has proved the high sense of responsibility applied to the inquiry on the necessity of the sea-water experiments. Scientists of international reputation, like Professor Dr. Eppinger and Professor Heubner, were consulted, and they definitely answered this question in the affirmative. More cannot be expected or demanded in the way of a sense of responsibility. In my opinion, the mere fact that these scientists were asked their opinion on the issue in question shows that everything was done on the part of the Chief of the Medical Service of the Luftwaffe and his office to reach the right decision in this question.

With regard to the purely objective judgment of the sea-water experiments and their necessity, I should like to refer to the statements made in my closing brief for Dr. Becker-Freyseng.

At this point, I should, however, like to add the following: The prosecution has tried to make out that it was the purpose of these sea-water experiments to decide whether Berkatit removes the salt from sea water. This contention of the prosecution has in no way been proved. I must stress here again, most emphatically, that this was never the purpose of the sea-water experiments.

All people concerned realized that Berkatit does not remove the salt from sea water. The question which was to be clarified and which necessitated the experiments was rather the following: Under the action of the vitamins contained in Berkatit, will the kidneys be capable of producing a urine with a higher sodium chloride concentration than is normally the case? Dr. Eppinger answered this question neither in the affirmative nor in the negative; he stated that this question could be decided only by experiment.

In addition there was another question to be decided, as to whether in case of shipwreck it would be more desirable to endure thirst, or whether marooned fliers should be advised to drink small quantities of salt water. In 1942-1944 this question was also raised in the United States and England and there, too, human experiments were carried out. But all these individual questions were only part of the great issue of how shipwrecked persons could be helped to escape the agony and danger of dying from thirst. These issues were the basis for the experiments conducted in 1944. In my opinion it is not admissible to construe arbitrarily another issue today and to contend on the basis of such issue, which never existed, that these experiments were not necessary. These medical issues alone necessitated the experiments. There were other issues too, to which I want to make short reference.

Until 1944 the world lacked an agent to make sea water drinkable. Such an agent was an absolute necessity. Nobody denied even then that Wofatit, developed by the defendant Schaefer, would have been an ideal agent for this purpose. It was, however, equally clear that this agent could only be manufactured by withdrawing the necessary raw material, namely silver, from other war-essential uses.

Furthermore, it was not denied that Berkatit did not require critical raw materials in the same measure. Another circumstance to be considered was that Berkatit could have been produced in existing plants, whereas it would have been necessary to erect new plants for the production of Wofatit. Accordingly, these technical reasons favored the introduction of Berkatit. It can hardly be denied that it was necessary for a medical officer conscious of his responsibilities in war to consider these reasons when reaching a decision. Incidentally, the expert of the prosecution, Professor Ivy, also stated that these reasons were definitely worthy of consideration.

Accordingly it had to be clarified, whether Berkatit could not, after all, be introduced for distribution to persons facing the risk of shipwreck, and the inquiry into this question was all the more necessary as, according to the opinion of Professor Eppinger and Professor Heubner, Berkatit apparently contained vitamins which eliminated the risks incurred by human beings when drinking sea water. Whether the opinion of the experts, Heubner and Eppinger, was right or not, could, at that time as today, only be established by experiment.

Hence if the defendant Dr. Becker-Freyseng, who examined all these factors and applied all precautions possible, became convinced in 1944 that the experiments could not be avoided, and if, from this viewpoint, in his official capacity as a consultant (Referent) he reported to his highest authority at that time, Professor Dr. Schroeder, that he considered the experiments necessary, then, in my opinion, he can in no way be charged under criminal law on that account.

Therefore, in my opinion, it has been proved that Dr. Becker-Freyseng considered these experiments necessary and that he was entitled to consider them necessary. And this question alone can be made the basis for an inquiry into his guilt under criminal law.

With regard to this point, I would like in conclusion to refer to the testimony of Professor Dr. Vollhardt. This world-famous physician, this research scientist, recognized as such in international circles, upon whom, only a few weeks ago, on the occasion of his 75th birthday, the highest German decoration of science was bestowed, namely the Goethe Medal for Art and Science, a ceremony in which nearly all European countries, also America, joined, stated before this high Tribunal, and I quote:

“I regarded it as sign of a sense of responsibility that in view of the increasing number of flying accidents, the sea-emergency question was taken up and these experiments were launched.”

Insofar, I consider it proved that the planning of these experiments was in no way objectionable.


EXTRACT FROM THE FINAL PLEA FOR
DEFENDANT BEIGLBOECK
[17]


Even medical science on both sides had to assist warfare. I have before me the index of the best known scientific English periodicals from the war period, “The Lancet” and “Nature”. Now, after the war, General T. J. Betts of the United States War Department and Professor W. T. Sinsteat of the British Supply Office declared that the captured German scientific results accomplished during the war were of the greatest use for the economic progress of British and American industry. Even the terrible freezing experiments of Dr. Rascher proved to be of greatest use for America in the war against Japan. (Becker-Freyseng 31, Becker-Freyseng Ex. 18.)


c. Evidence

Defense Documents
   
Doc. No.Def. Ex. No.Description of DocumentPage
Becker-FreysengBecker-FreysengExtracts from Harper’s65
31Ex. 18Magazine entitled “Secrets by the Thousand” by C. Lester Walker.
Testimony
 
Extract from the testimony of defendant Mrugowsky66
Extracts from the testimony of defendant Rose69

 

 

BECKER-FREYSENG DOCUMENT 31

BECKER-FREYSENG DEFENSE EXHIBIT 18

EXTRACTS FROM HARPER’S MAGAZINE ENTITLED “SECRETS BY THE THOUSAND” BY C. LESTER WALKER

Someone wrote to Wright Field recently saying he understood this country had got together quite a collection of enemy war secrets, that many were now on public sale, and could he, please, be sent everything on German jet engines. The Air Documents Division of the Army Air Force answered: “Sorry—but that would be fifty tons.”

Moreover, that fifty tons was just a small portion of what is today undoubtedly the biggest collection of captured enemy war secrets ever assembled. If you always thought of war secrets—as who hasn’t—as coming in sixes and sevens, as a few items of information readily handed on to the properly interested authorities, it may interest you to learn that the war secrets in this collection run into the thousands, that the mass of documents is mountainous, and that there has never before been anything quite comparable to it.


One Washington official has called it “the greatest single source of this type of material in the world—the first orderly exploitation of an entire country’s brainpower”.

How the collection came to be goes back, for beginnings, to one day in 1944 when the Allied Combined Chiefs of Staff set in motion a colossal search for war secrets in occupied German territory. They created a group of military-civilian teams, termed the Joint Intelligence Objectives Committee, which was to follow the invading armies into Germany and uncover all her military, scientific, and industrial secrets for early use against Japan. These teams worked against time to get the most vital information before it was destroyed, and in getting it performed prodigies of ingenuity and tenacity.


III

In matters of food, medicine, and branches of the military art, the finds of the search teams were no less impressive. And in aeronautics and guided missiles they proved to be downright alarming.


“As for medical secrets in this collection”, one Army surgeon has remarked, “some of them will save American medicine years of research; some of them are revolutionary—like, for instance, the German technique of treatment after prolonged and usually fatal exposure to cold.”

This discovery—revealed to us by Major Alexander’s search already mentioned—reversed everything medical science thought about the subject. In every one of the dread experiments the subjects were most successfully revived, both temporarily and permanently, by immediate immersion in hot water. In two cases of complete standstill of heart and cessation of respiration, a hot bath at 122° brought both subjects back to life. Before our war with Japan ended, this method was adopted as the treatment for use by all American Air-Sea Rescue Services, and it is generally accepted by medicine today.

 

EXTRACT FROM THE TESTIMONY OF DEFENDANT MRUGOWSKY[18]

DIRECT EXAMINATION


Dr. Flemming: I further submit an excerpt from the testimony of Generalarzt Dr. Schreiber which he made on 26 August 1946 before the International Military Tribunal. This can be found in the transcript of the International Military Tribunal for that date. This is Mrugowsky Document 27. I offer it as Mrugowsky Exhibit 45. Answering the question, “What scientific value did the experiments [typhus experiments in Buchenwald] of the specialist Ding have”? Generalarzt Dr. Schreiber answered, “In my opinion they had no scientific value at all because during the war we had already gained much experience and collected a great deal of data in this field. We were thoroughly acquainted with the composition and qualities of our vaccine and no such tests were required any longer. Many of the vaccines examined by Ding were not used any more at all and were rejected.”

Would you define your position to that statement?

Defendant Mrugowsky: I do not know how Schreiber could have expressed that opinion, nor do I know whether he is in possession of full knowledge of the results of this work. I never discussed this question with him and I therefore cannot examine it. This much is clear, however, that Schreiber is speaking of a later period of time, for the vaccines that were no longer produced were not produced because the experiments of Ding had proved their inferiority. The epidemiological examination of the various vaccines during the war only originates from a later period, in particular the years 1943 and 1944. The exploitation of these experiences only originates from the last years of the war and it is, therefore, my opinion that this testimony of Schreiber is incorrect.

Q. I am interrupting you and I shall have Handloser Exhibit 14 shown to you. We are here concerned with an excerpt of a scientific thesis by Geheimrat Otto. Do you know Geheimrat Otto?

A. Yes, I know Geheimrat Otto. He is probably the best typhus expert not only in Germany but in Europe, who has dealt with typhus all his life.

Q. From this excerpt you will see that Geheimrat Otto says, still in 1943:

“While the efficacy of lice vaccines has already been tested on a large scale in Poland, Ethiopia, and China, and the vaccine has proved its value, it is still necessary to gather large-scale practical experiences with lung and vitelline membrane vaccines. In animal experiments they have proved of equal value with the former.”

Would you say something on that?

A. Professor Otto says here that even in the year 1943 the vitelline membrane vaccine and the vaccines from lungs of animals were not sufficiently known. That confirms what I have just testified and that is in answer to Dr. Schreiber’s statement.

Q. The witness Bernhard Schmidt, who was interrogated here, stated that human experiments were superfluous for the purpose of testing vaccines and that the value of the individual typhus vaccines could have been ascertained in an epidemiological way. What is your opinion in that connection?

A. This is my opinion also. It is my opinion that these tests could have been carried out in an epidemiological manner. I represented that point of view before Grawitz and Himmler from the very beginning.

Q. You stated yesterday that to test this matter in an epidemiological way, a large number of persons would have had to be vaccinated and compared with a large number of persons who were not vaccinated. Would such a long experiment have been possible considering the circumstances prevailing during the war?

A. Such a test would have been possible. It was actually introduced by me within the framework of the ministry. It is a matter of course, however, that the results can only be collected at a very late date and can only be exploited at a much later date. In the case of the entire experiment we were concerned with bridging over this space of time.

Q. In carrying out this examination one could have found that one vaccine has only a very small effectiveness, as was actually found out in the case of the Behring vaccine. In that case would you say that the mortality of persons vaccinated with the inferior vaccine would have been much greater than the entire amount of fatalities as they occurred in Buchenwald? You know that the statement regarding the fatality figures fluctuated between 100 and 120.

A. That could be assumed to be the case with certainty. A comparison is the manner in which all tests are carried out in this field. I shall give you a few examples for that. When Emil von Behring in the year 1890 discovered the diphtheria serum, it was at first used by a physician of the Berlin Charité in the case of diphtheria-infected children. He treated about 1,200 children suffering from diphtheria with that serum. He registered a mortality rate in the case of these children, in spite of the treatment, of approximately 22 percent. Just as many children did not receive the serum but were treated in a different manner. In this group the mortality rate was double, approximately 44 percent. These 240 or 250 children who died, and who were in that control group could certainly have been saved if they had been given the blessing of that diphtheria serum. But that was in reality the purpose of that test and one had to take into account that a larger ratio of fatalities would result in the group to be compared and that then the value of the serum would be recognized.

Q. I think that this example will suffice. In that case you are really admitting that an objection against experiments in Buchenwald could not be justified?

A. During the war I did not work on any disease as ardently as on typhus. I treated thousands of patients who fell ill with typhus and examined them. I believe that in the case of such an experience one gains some knowledge of the disease. I often considered that question and I hold the opinion that my objection at the time was perhaps not justified by events. On the other hand, it is my opinion that in the case of every task one has to keep the question in mind whether one is in a position to execute that task. I must admit even today that in spite of the success of the experiments, which cannot be denied, I would act similarly in yet another position and would assume the same attitude as I assumed at that time. Even today I would not be prepared to carry out any such experiments personally or have them carried out upon my responsibility, although success undoubtedly would come about.

 

 

EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROSE[19]

DIRECT EXAMINATION


Dr. Fritz: What do you know about the reasons for this protest (against experiments) being ignored and the typhus experiments being carried out in spite of it?


Defendant Rose: The Buchenwald experiments (with typhus vaccine) had four main results. First of all, they showed that belief in the protective effect of Weigl vaccine was a mistake, although this belief seemed to be based on long observation. Secondly, they showed that the useful vaccines did not protect against infection, but almost certainly prevented death, under the conditions of the Buchenwald experiments. Thirdly, they showed that the objections of the biological experts to the vitelline membrane vaccines and to the lice vaccines were unjustified, and that vitelline membrane, rabbit lungs, and lice intestines were of equal value. We learned this only through the Buchenwald experiments. This left the way open to mass production of typhus vaccines.

The Buchenwald experiments showed in time that several vaccines were useless. First, the process according to Otto and Wohlrab, the process according to Cox, the process of Rickettsia Prowazeki and Rickettsia murina, that is, vaccine from egg cultures; secondly, the vaccines of the Behring works which were produced according to the Otto process, but with other concentrations; finally the Ipsen vaccines from mouse liver. The vaccines of the Behring works were in actual use at that time in thousands of doses. They always represented a danger to health. Without these experiments the vaccines, which were recognized as useless, would have been produced in large quantities because they all had one thing in common: their technical production was much simpler and cheaper than that of the useful vaccines. In any case, one thing is certain, that the victims of this Buchenwald typhus test did not suffer in vain and did not die in vain. There was only one choice, the sacrifice of human lives, of persons determined for that purpose, or to let things run their course, to endanger the lives of innumerable human beings who would be selected not by the Reich Criminal Police Office but by blind fate.

How many people were sacrificed we cannot figure out today; how many people were saved by these experiments we, of course, cannot prove. The individual who owes his life to these experiments does not know it, and he perhaps is one of the accusers of the doctors who assumed this difficult task.

I. Medical Ethics

1. GENERAL PRINCIPLES

a. Introduction

In a case involving the charge that human beings were subjected to medical experiments of many kinds under varying circumstances, it was inevitable that questions of medical ethics became a part of the proof and the argumentation.

The prosecution’s rejoinder to the statement of the defendant Rose appears on page 71. As illustrations of the defense position on medical ethics, extracts have been taken from the final pleas for the defendants Gebhardt and Beiglboeck. These appear on pages 71 to 77. Considerable testimony was given on this question by defendants and by expert witnesses, and appears on pages 77 to 86. Selections from this testimony have been taken from the direct examination of the defendant Rose, the cross-examination of the prosecution witness Professor Werner Leibbrandt, and from the direct examination of the prosecution witness Dr. Andrew C. Ivy.

The judgment of the Tribunal deals at some length with the medical ethics applicable to experimentation on human beings (p. 181 ff.).

b. Selection from the Argumentation of the Prosecution

EXTRACT FROM THE CLOSING STATEMENT
OF THE PROSECUTION
[20]


In view of the clear and unequivocal proof of the defendant Rose’s participation in the typhus murders of Buchenwald he can only plead that he didn’t enjoy doing what he did, that he objected to the experiments at the Third Meeting of the Consulting Physicians of the Wehrmacht in May 1943. But this is his condemnation, not his salvation. In March 1942 he was in Buchenwald and saw what was being done. In May of the same year he asked Mrugowsky to test a vaccine for him in those experiments. Four inmates were killed as a result. In May 1943, he objected to the experiments in what he describes as strong terms. But in December, he was again instigating still another experiment which resulted in the murder of six men. He is a living example of a man who could have abstained from participating in these crimes without threat of harm to his person or position by any agency of the Nazi Government. He was not arrested and tried by the SS because of his objection. He was not committed to a concentration camp. In spite of that, he voluntarily participated in these same crimes to which he said he objected. With his knowledge, prestige, and position, he is even more culpable than the miserable and inexperienced Ding who actually performed the experiments in the murder wards of Buchenwald.


c. Selections from the Argumentation of the Defense

EXTRACT FROM THE FINAL PLEA FOR
DEFENDANT GEBHARDT
[21]


The Principles of Medical Ethics and the Applicable Law

During the hearing of evidence, views were repeatedly given on the question of which principles of medical ethics are to be considered when performing experiments on human beings. In my opening statement before the evidence was submitted I pointed out that in the case of these defendants there is no reason to examine fundamental questions of medical ethics in these proceedings. Law and ethics are measured by different standards which sometimes contradict each other. The same applies to the principles of general ethics as well as to those of a particular profession. A deed offending the recognized principles of medical ethics does not necessarily constitute a crime. Only the cogent precepts of the law can be used as the basis for a verdict, and not the unwritten regulations and convictions existing inside a profession.

However, it cannot be concluded from this that the principles of medical ethics and their practical application were of no importance at all in these proceedings. These principles cannot, of course, be applied directly. At the same time there is no doubt that the principles of medical ethics and above all their practical application in recent decades can play an indirect part insofar as they have to be taken into consideration when interpreting the law. However, evidence has now proved that in recent decades and even earlier, numerous experiments were carried out on human beings, and, moreover, on persons who did not volunteer for such purpose. In this respect I refer to the statements of the expert Professor Dr. Leibbrandt, witness for the prosecution. I furthermore refer to the extensive evidence submitted by the prosecution on this question from which it appears that in numerous cases experiments were carried out on human beings, of the nature and degree of danger of which they could not have been aware and to which they would never have agreed voluntarily. The only conclusion which can be drawn from these facts is that during recent decades views on this question have changed in the same way as the relations between the individual and the community in general have changed. In this connection I need not give the detailed reasons which led to this development. It is a fact that, at least in Europe, the state and the community have taken a different attitude toward the individual. However differently one may write about the change in these relations in detail, one thing is certain, namely, that the state has more and more taken possession of the individual and limited his personal freedom. This is evidently one of the accompanying facts of technics and the modern mass-state. It must be added that the development of medicine in the course of the last decades has led to discriminating formulations of questions which can no longer be solved by means of the laboratory and animal experiments.

The evidence has shown that not only in Germany and perhaps not even primarily in this country, the reorganization of the relationship between community and individual has resulted in new methods in the sphere of medical science. In nearly all countries experiments have been performed on human beings under conditions which entirely exclude volunteering in a legal sense.

Immediate consequences arise for the interpretation of the law from this change of medical views and above all from the change in medical practice, since the essence of the law is universal and abstract and naturally does not state the limits and the conditions under which experiments on human beings are permissible and the borderline of the criminality of such an experiment. The real practice regarding this question is all the more important for the interpretation of the law since almost every law, including Control Council Law No. 10, contains standard rudiments of case facts, which means that determination in a particular case can only be the outcome of a judicial judgment. No special proof is needed to show that the question when and within what limits medical experiments are admissible calls for a judicial judgment, and that this cannot be established without taking practical experience into consideration, not only in Germany but also outside Germany. The standard rudiments of case facts are part of the legal facts and deal with illegality as characteristic of the punishable act. Actual medical practice inside and outside Germany, however, has not only to be considered when examining the question as to whether the actions constituting the subject of the indictment are illegal, but above all it is fundamentally important when answering the further question as to whether the actions constituting the subject of this procedure constitute a criminal offense. In view of the fact that a criminal offense is not likely to be a permanent psychological fact but a standard computed fact in the sense of a personal reproach, the Court for this reason also will not overlook the fact that particularly during the last years, even outside Germany, medical experiments were performed on human beings who undoubtedly did not volunteer for these experiments. The unity of law and the indivisibility of its basic idea exclude judging one and the same fact simultaneously according to different legal principles and standards.

I shall comment later on the question of whether the defendants in the performance of the experiments which constitute the indictment acted primarily in their capacity as physicians, or whether their conduct—if a just decision is to be rendered—must no longer be regarded from the viewpoint of war service as medically trained research scientists.


EXTRACT FROM THE FINAL PLEA FOR
DEFENDANT BEIGLBOECK
[22]


If one confronts the doctor with that type of scientist who, with the test tube in his laboratory, with the syringe or the surgical knife in his hand, steps on animal and human corpses, in order so fanatically to satisfy his scientific instinct, then we very decidedly object to such a scientist. We have found this type in the documents of this trial in the person of Dr. Rascher, whose name casts a dark shadow over the proceedings. Dr. Leibbrandt, the protector of medical ethics, would therefore have rendered a good service to German science if, in his capacity as a psychiatrist, we had pointed out that Rascher, this sadist and psychopathist, had nothing whatsoever to do with real science.

It is my duty as a defense counsel to emphasize energetically that it is not permissible to construct from local coincidences any connection between my client and Rascher and his system.

The scientific research worker sees his task in the discovery of the unknown in order to equip the doctor with new weapons in his fight for human life. I briefly want to demonstrate with two examples why the modern medical profession cannot renounce the scientific research work that was impossible without great efforts and sacrifices (1) giving a brief description of the development of modern surgery; (2) mentioning the school to which the defendant Beiglboeck belonged as a pupil and a teacher. I do not give this second example in order to glorify my country, but because the particular influence of its teachers is decisive for the spiritual standard of the personality.

At the beginning of modern surgery stands that mighty figure of English surgery, Joseph Lister, whose great idea it was that the surgeon should not fight the inflammation of the wound but should prevent its cause, i.e., germs entering externally.

Thanks to bacteriology, anti-sepsis was changed into asepsis.

Over the entrance gate of the General Hospital in Vienna we read the words “Saluti et solatio aegrorum—Dedicated to the health and consolation of the sick.” These words not only demand the highest accomplishment of the doctor’s duties but are the motive for the most successful work in the large field of medical research. Theory and practice joined together in order to become a piece of living humanity. I would go beyond the limits of my task if I mentioned all the names that spread the glory of Vienna University throughout the world. But their penetration into the world of the unknown was always a hazardous enterprise which demanded courage and sacrifice.

I want to quote the words of one of the great doctors, Professor Wagner-Jauregg, who says in his book “Fever and Infection Therapy”,

“The vaccination against malaria was certainly a risk, the outcome of which could not be foreseen. It was dangerous for the patient himself and this to a much higher degree than the treatment with tuberculin and other vaccines, and it also was a danger for the surroundings and even for the community.”

And, on page 136, it states “Three patients died after having been vaccinated with blood infected with malaria tropica and not with malaria tertiana”; and “The tragic outcome of this experiment was discouraging, and only a year later could the author decide to proceed with the malaria vaccinations * * *.”

Nobody talks of these victims today, but Wagner-Jauregg’s revolutionary discovery is known and adopted throughout the world and has become the common property of all peoples for the benefit of suffering mankind.

These doctors who knew that the fight against disease and death was a thorny path were all more than ready to sacrifice their own lives.

The real scientist and the real doctor, therefore, do not oppose each other. However, the scientist must not forget that nature is the expression of the divine will and that only this cognition can save him from the “hybris”, the boundlessness which for the Greek tragedians was the greatest vice of mankind.

Above all, the words of the greatest German physician, Theophrastus Bombastus von Hohenheim, called Paracelsus, must be applied to both scientist and doctor “The doctor grows with his heart, he comes from God and is enlightened by Nature—the best of all drugs is Love.”

My learned colleagues have compiled a long list of documents on human experiments especially from the Western democracies. It would be unjust, however, to conceal the enormous benefit of the human experiment. The fact that Paul Ehrlich dared to release his drug “Salvarsan” before it had been sufficiently tested saved thousands from the dangerous consequences of one of the worst epidemics. The fact that Strong took the responsibility upon himself to perform the probably very dangerous experiment with plague bacilli made it possible to vaccinate thousands of persons and to save them from almost certain death. The fact that Strong was in a position to prove that beri-beri was a disease caused by a deficiency, and that Goldberger proved the same for pellagra, made it possible to fight this deficiency and to liberate entire countries from one of their worst diseases.

With regard to the criminal law, however, and the judgment of crimes against humanity, it is the decisive result that in other countries, too, under their own generally prevailing medical and ethical convictions, doctors carried out similar or the same experiments for the benefit of scientific research or in consideration of a crisis in their country.

When I said that the surroundings had an influence on the doctor’s attitude, I did not mean the second determining factor of our individuality, the material influence on the organism which might modify or mitigate the influence of the actual conditions at the time upon the decisions of a physician.

Concentration camp, militarism, and peoples’ court—three important pillars of the Third Reich—they have collapsed. They are not to be forgotten, however, when examining the guilt of the individual. Every German had to fear them in one form or another. And then came the war. War was once called “the steel bath of the peoples”. Heraklit called it “the father of all things”. I can only repeat the judgment of the IMT that “war is the evil itself.” This is true to the highest degree for the last war. It was a total, a terrible war. Even medical science on both sides had to assist warfare. I have before me the index of the best known scientific English periodicals from the war period, “Lancet” and “Nature”. Now, after the war, General T. J. Betts of the United States War Department and Professor W. T. Sinsteat of the British Supply Office have declared that the captured German scientific accomplishments during the war were of the greatest use for the economic progress of British and American industry. Even the terrible freezing experiments of Dr. Rascher proved to be of the greatest use for America in the war against Japan. (Becker-Freyseng 31, Becker-Freyseng Ex. 18.) And what about us soldiers? We stood in the air-raid shelters, the Socialist beside the Party member. We did not complain. We saw villages go up in flames, innocent women and children become the victims of air raids. We saw our country, the Fatherland, in distress, and, even if we hated Hitler and his followers like the plague, we believed that we had to fulfill our duty to our country to the bitter end. One cannot explain these things, they have to be experienced. In such times a doctor is placed unwillingly between Scylla and Charybdis, between his concept of his profession and his duty as a soldier. It is easy today to say with pathos from an academic chair “numquam nocere!” A man does not say now, “I was a member of the resistance. Day in and day out I was trying to help persons who were racially and politically persecuted.” He says, “Then, like everyone else, I merely did my duty.”

Abraham Lincoln, one of the greatest Americans, said in a speech before the American Congress in 1862, “The dogmas of the quiet past are inadequate to the stormy present. * * * In the face of new events we must think and act in a new way.”

With this I intend to conclude my statements about medical ethics and to repeat the words which Liek wrote at the end of his book, “The Doctor and His Mission”, “If we want to abolish undesirable conditions in medicine, we must follow our conscience—to help and to heal, that is, today as always, the mission of the doctor.”


d. Evidence

Testimony
Page
Extracts from the testimony of defendant Rose77
Extracts from the testimony of prosecution witness Professor Werner Leibbrand80
Extracts from the testimony of prosecution expert witness Dr. Andrew C. Ivy82

 

 

EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROSE[23]

DIRECT EXAMINATION


Dr. Fritz: You heard the lecture which Dr. Ding gave on his experiments at the Third Conference of Consulting Physicians in the Section for Hygiene and Tropical Hygiene?

Defendant Rose: Yes. That was the time when I protested openly against this whole method.

Q. Well, what happened?

A. Dr. Ding gave his lecture in a camouflaged form as in his article for the Journal of Hygiene and Infectious Diseases. Therefore, the unsuspecting listener could not tell that it was about experiments on human beings.

When the discussion began, I commented on the results of these experiments. That part of my statement is contained in the record of the conference. It is Document Rose 38, which has already been submitted. (Rose 38, Rose Ex. 10.) I do not intend to read these remarks, I simply want to point out that one can find there what I said about the technical aspect of the experiments and about the results.

Then I spoke of the ethical side of the whole thing and this part of my statement has been stricken from the record. I cannot, of course, reproduce today the exact wording but only the sense of what I said. I said more or less as follows: As important and as basic as the results may have been, they were nevertheless achieved at the cost of a number of human lives. We as hygienists should object against a life and death experiment being performed as the prerequisite for the introduction of a vaccine. So far, the customary procedure had been the testing with animal experiments and subsequent determination of tolerance by human beings and epidemiological exploitation. This procedure had proved its value. We had to stick to it and we couldn’t let other political and state authorities force us to conduct human experiments. I spoke much longer at the time. I spoke for at least ten minutes. Ding replied that he could pacify my conscience. The experimental subjects had been criminals condemned to death. My answer was: I knew that myself. I was not interested in the individuals concerned but in the principle of human experiments in testing vaccines. At this comment Professor Schreiber interrupted the discussion. He said he protested against my criticism and if we wanted to discuss basic ethical questions we could do that during the recess. He would have this part of the discussion stricken from the record and that was done. After the meeting various participants came to me and we discussed the whole matter. Some agreed with me; others were convinced that in such an important question human experiments were justified. Of course, those people who [sic] believed Ding’s assurance that the subjects were criminals condemned to death. I no longer remember the individual men with whom I talked during the recess and I don’t know who was in favor and who was against it. The only one I remember is Professor Mrugowsky because he spoke as an SS member and the experiments had been conducted by an SS doctor, and because I thought that Mrugowsky was Ding’s superior in every way. Of course, I remember that Mrugowsky of all people came and said that, in principle, he agreed with me, and that he had expressed similar misgivings to Grawitz and that Grawitz had rejected his misgivings. Then I also learned from Mrugowsky that Himmler was behind all these experiments.


Dr. Fritz: Did you later discuss the matter of experiments on human beings before a large group of people?

Defendant Rose: Yes. That happened once again before a large number of people, but it was not about typhus experiments. It must have been about October 1944. The question at hand then was grippe. There was a meeting, a rather large meeting at which grippe vaccine was discussed. A number of people reported on the vaccines which they had developed in the laboratory. Among others, Professor Herzberg reported on a vaccine made from dead grippe virus, and Professor Haagen on a vaccine made from living avirulent grippe virus, which he had already tested on personnel at the Strasbourg clinic. Someone in the meeting, I don’t remember who, suggested that the Haagen tests had been insufficient, and that this vaccine should be tested on a larger number of persons. There was no mention of concentration camps then but of student companies. I had considerable misgivings about such experimental vaccination and expressed them. I said that I considered the experimental basis inadequate for these vaccines to be used on human beings. I was not convinced that the virus had been sufficiently attenuated. There was a danger that the vaccine would lead to infection, and one could not take that responsibility on one’s self. It was first of all intended to observe the effectiveness of the protection by determining whether people fell ill of grippe in natural ways after being vaccinated. Then someone else made the suggestion that this would take too long, and we did not know whether there would be an influenza epidemic during that time, and that therefore after the vaccines the subject should be infected with a virulent virus. Since I had already expressed objections to the vaccination, I opposed this proposal even more strongly, and the result of this discussion was that infections were not carried out, but it was decided to carry out the vaccination. Whether these vaccinations were carried out or not, I do not know. At any rate I read no order to the effect that anyone should perform the vaccinations nor did I ever read a report that the vaccinations were carried out. Only later on in imprisonment did I hear that similar experiments, such as were then discussed, and of which I disapproved, were carried out by the British Medical Service on German PW’s. Genzken probably participated personally in this, but I had heard about this before in the internment hospital Karlsruhe where there were people who had experienced these vaccinations.


EXTRACTS FROM THE TESTIMONY OF PROSECUTION WITNESS
PROFESSOR WERNER LEIBBRANDT[24]


CROSS-EXAMINATION

Dr. Servatius: Witness, you stated that the performance of experiments on human beings, as is the subject of the indictment here, can be ascribed to biological thought. What do you mean by biological thought?

Witness Leibbrandt: By biological thought I mean the attitude of a physician who does not take the subject into consideration at all, but for whom the patient has become a mere object, so that the human relationship no longer exists, and a man becomes a mere object like a mail package.

Q. You spoke of thinking as a biologist. Do I understand that you see therein an action belonging to biological thought?

A. An exaggeration of the purely mechanical or biological point of view, because the physician is not merely a biologist, he is also a biologist. Primarily, however, a physician is a man who assists the human being and not a scientific judge of biological events.

Q. Could there not be other causes for the experiments, such as a collective state thinking?

A. Yes.

Q. Witness, you used the expression “demoniac order”. What do you mean by that?

A. By demoniac order I mean the following: If I define as a basis for medical activity merely the maintenance and safeguarding of the substance of the nation according to blood, the result is that everything which falls outside this pretense has to be cleared away. That is a mild expression of what actually happened, namely, extermination.

Q. Then your demoniac order only refers to the blood aspect. Could it not be applied to the purely state collective aspect as well?

A. Could you give an example so that I can understand it better?

Q. I mean that experiments were undertaken and that the voluntary act of the individual is replaced by the act of the state, namely, by the voluntary approval given by the state.

A. Between the collective idea and the state order on the one hand and the medical individual on the other, there stands something rather important—the human conscience.


Q. Professor, if all these experiments were actually conducted, and also as you said this morning and as Moll’s book shows, Moll alone published approximately six hundred works about thousands of such experiments (on human beings), must one not say that wide circles of medical men judge the question of experiments on human beings under certain conditions differently from you—from an ethical point of view?

A. That I cannot say, because even Moll writes at the end of this work that it is part of a physician’s morals to restrain his urge for natural research in favor of the basic medical attitude as laid down in the oath of Hippocrates, namely, to cause no arbitrary harm to his patient.

Q. But in your opinion, Professor, how should a doctor work in the interest of suffering humanity in cases where, as you have just said, there is no possibility of experiments on animals?

A. The concept of humanity is a very dangerous concept. It is most dangerous of all for the physician. For the physician, the individual stands above all humanity and the individual unfortunately has sunk very low in these last few years.

Q. I believe that you have not quite answered my question. I asked: How do you think the doctor should solve certain questions even in the interest of the individual—questions which cannot be tested with animal experiments and test tubes, as is the case with malaria for instance. This is a problem which must be cleared up if he is to help his suffering patients.

A. That is naturally a very difficult question. But in the end the main thing will always be that a risk must have certain limits.

Q. Thank you. Now I come to another point. This morning, Professor, you expressed disapproval about a book which the defendant Mrugowsky wrote on medical ethics. May I ask, have you read this book?

A. Yes.

Q. Do you know Mrugowsky personally?

A. No.

Q. Then you do not know his ethical point of view?

A. I said that it was quite an ironical joke of world history for someone to quote the high medical ethics of Hufeland in the form of excerpts from his writings, as far as I remember, with a few connecting words and to combine these quotations in a modest little volume, while on the other hand we now know how it was entangled organizationally with the deeds under discussion here. I am only speaking about the entanglement and not about the objective guilt which has not yet been proved.

Q. And from where else do you infer Mrugowsky’s entanglement with the facts under discussion here, apart from the fact that he is one of the defendants indicted?

A. After all, he was the Chief of the SS Hygienic System, and the medical principles of an ethical nature personified by the SS have become clear to me during the last few years. There seems to me to be a large gap between these two things, between these deeds of SS medical ethics and the ethics of Hufeland. I might perhaps understand how a man like Mr. Haubhold could be enthusiastic about a one-sided interpretation of political medicine by Josef Peter Frank in the 18th century. But I cannot understand how the SS ethics can be connected up with the honest ethics of Christian Hufeland.

Q. Professor, you just told us you do not know Mrugowsky at all?

A. No.

Q. Then how can you express a judgment on his personal ethical attitude? You are merely judging from the fact that he belonged to the SS. Before you express such an opinion as you are doing, before you talk about a joke of world history, must you not first know the personal attitude of the person you are criticizing, and is it not quite possible that his personal attitude was such as is expressed in this book?

A. I don’t believe that one can hold a leading position in the SS and then talk about such personal ethics, unless, of course, in ethical questions one does what is called double bookkeeping.

Q. But you admit that all your criticism is pure assumption, in no way based on personal knowledge of the person criticized?

A. I do not know Mr. Mrugowsky.

Q. Thank you. I have no more questions.

 

EXTRACTS FROM THE TESTIMONY OF PROSECUTION EXPERT
WITNESS DR. ANDREW C. IVY[25]

DIRECT EXAMINATION


Mr. Hardy: Now, Professor Ivy, before adjournment you were beginning to discuss medical ethics in the United States.


Do you have there also the principles and rules as set forth by the American Medical Association to be followed?

Witness Dr. Ivy: Yes.

Q. What was the basis on which the American Medical Association adopted those rules?

A. I submitted to them a report of certain experiments which had been performed on human subjects along with my conclusions as to what the principles of ethics should be for use of human beings as subjects in medical experiments. I asked the association to give me a statement regarding the principles of medical ethics and what the American Medical Association had to say regarding the use of human beings as subjects in medical experiments.

Q. Would you kindly pass up to me that ruling of the principles put out by the American Medical Association? This apparently isn’t what I am referring to, Doctor. Do you have a publication which is published by the American Medical Association entitled “Principles of Ethics Concerning Experimentation on Human Beings”?

A. Not with me here.

Q. Well now, you have, first of all, a basic requirement for experimentation on human beings, “(1) the voluntary consent of the individual upon whom the experiment is to be performed must be obtained.”

A. Yes.

Q. “(2) The danger of each experiment must be previously investigated by animal experimentation,” and “(3) the experiment must be performed under proper medical protection and management.”

Now, does that purport to be the principles upon which all physicians and scientists guide themselves before they resort to medical experimentation on human beings in the United States?

A. Yes. They represent the basic principles approved by the American Medical Association for the use of human beings as subjects in medical experiments.

Judge Sebring: How do the principles which you have just enunciated comport with the principles of the medical profession over the civilized world generally?

A. They are identical, according to my information. It was with that idea in mind that I cited the principles which were mentioned in this circular letter from the Reich Minister of the Interior dated 28 February 1931 to indicate that the ethical principles for the use of human beings as subjects in medical experiments in Germany in 1931 were similar to those which I have enunciated and which have been approved by the House of Delegates of the American Medical Association.

Mr. Hardy: Is it possible that in some field of scientific research investigation by animal experimentation would be inadequate?

A. Will you repeat that question? I did not get it.

Q. Is it possible in some fields of medical research that experimentation or investigation on animals would be inadequate?

A. Yes. The experiment on trench fever is a very good example.

Q. How would you investigate the danger of the experiment prior to resorting to the use of human beings?

A. The hazard would have to be determined by a careful study of the natural history of the disease.

Q. Does malaria also fall into that category?

A. We can use animals to some extent in malarial studies, canaries and ducks, for example, develop malaria; and in research designed to discover a better drug for the treatment of malaria we can use Avian Malaria as a sort of screen method to detect which compounds might be employed with some assurance and might be effective in human malaria. In that way we decrease the random and unnecessary experimentation on man.

Q. To your knowledge have any experiments been conducted in the United States wherein these requirements which you set forth were not met?

A. Not to my knowledge.

Mr. Hardy: Your Honor, I have no further questions concerning medical ethics to put to Dr. Ivy; however, I do have one question concerning the high-altitude experiments which I wish to go back to at the conclusion of that complex, in high altitude, and I will have completed my direct examination.

Presiding Judge Beals: The Tribunal has no questions of the witness. Do I understand that you have completed your examination of the witness?

Mr. Hardy: No. I have not; I have a further question to put to him, but I was going to leave the case of medical ethics.

Presiding Judge Beals: We have no questions on that subject; you may proceed.

Mr. Hardy: Dr. Ivy, in medical science and research is the use of human subjects necessary?

Witness Dr. Ivy: Yes, in a number of instances.

Q. Is it frequently necessary and does it perform great good to humanity?

A. Yes. That is right.

Q. Do you have an opinion that the state, for instance, the United States of America, could assume the responsibility of a physician to his patient or experimental subject, or is that responsibility solely the moral responsibility of the physician or scientist?

A. I do not believe the state can assume the moral responsibility that a physician has for his patient or experimental subject.

Dr. Seidl: I object to this question in that it is a purely legal question which the Court has to answer.

Dr. Sauter (for the defendants Ruff and Romberg): If I am not mistaken, a document was read this morning which said that the state assumes the responsibility. I believe that I am not mistaken in this. I also want to point out something else, gentlemen, in order to supplement what Dr. Seidl just said.

The question asked here is always what the opinion of the medical profession in America is. For us in this trial, in the evaluation of German defendants, that is not decisive. In my opinion the decisive question is for example, in 1942, when the altitude experiments were undertaken at Dachau, what the attitude of the medical profession in Germany was. From my point of view as a defense counsel I do not object if the prosecution asks Professor Ivy what the attitude or opinion of the medical profession in Germany was in 1942. If he can answer that question, all right, let him answer it, but we are not interested in finding out what the ethical attitude of the medical profession in the United States was. In my opinion a German physician who in Germany performed experiments on Germans cannot be judged exclusively according to an American medical opinion, which moreover dates from the year 1945 and was coded in the years 1945 and 1946 for future use; it can also have no retroactive force.

Presiding Judge Beals: The first objection imposed by Dr. Seidl might be pertinent if the question of legality was concerned, a legal responsibility, that would be a question for a court. The question of moral responsibility is a proper subject to inquire of the witness.

As to Dr. Sauter’s objection, the opinion of the witness as to medical sentiment in America may be received. The counsel’s objection goes to its weight rather than to admissibility. The witness could be asked if he is aware of the sentiment in America in 1942 and whether it is different from this of the present day or whether it does not differ. The witness may also be asked whether he is aware of the opinion as to medical ethics in other countries or throughout the civilized world. But the objections are both overruled.

Mr. Hardy: It is your opinion, then, that the state cannot assume the moral responsibility of a physician to his patient or experimental subject?

Witness Dr. Ivy: That is my opinion.

Q. On what do you base your opinion? What is the reason for that opinion?

A. I base that opinion on the principles of ethics and morals contained in the oath of Hippocrates. I think it should be obvious that a state cannot follow a physician around in his daily administration to see that the moral responsibility inherent therein is properly carried out. This moral responsibility that controls or should control the conduct of a physician should be inculcated into the minds of physicians just as moral responsibility of other sorts, and those principles are clearly depicted or enunciated in the oath of Hippocrates with which every physician should be acquainted.

Q. Is the oath of Hippocrates the Golden Rule in the United States and to your knowledge throughout the world?

A. According to my knowledge it represents the Golden Rule of the medical profession. It states how one doctor would like to be treated by another doctor in case he were ill. And in that way how a doctor should treat his patient or experimental subjects. He should treat them as though he were serving as a subject.

Q. Several of the defendants have pointed out in this case that the oath of Hippocrates is obsolete today. Do you follow that opinion?

A. I do not. The moral imperative of the oath of Hippocrates I believe is necessary for the survival of the scientific and technical philosophy of medicine.


2. GERMAN MEDICAL PROFESSION

a. Introduction

The position of the German medical profession under the Hitler regime was the subject of argument by both prosecution and defense. The prosecution discussed the matter in the early part of its opening statement (vol. I, p. 29 ff.). Selections from the argumentation of the defense on this point have been taken from the final plea for the defendant Blome and from the closing brief for the defendant Rostock. These appear on pages 86 to 90.

b. Selections from the Argumentation of the Defense

EXTRACT FROM THE FINAL PLEA FOR
DEFENDANT BLOME
[26]


Furthermore, I have another matter at heart, especially in my capacity as defense counsel for this defendant: Blome was Deputy Reich Physicians’ Leader; he will, therefore, to a certain degree, easily be regarded as the representative of the German medical profession during the Hitler regime. Now, there is great danger that the entire German medical profession will be identified with its former leader, Dr. Conti, and with the crimes he was charged with during this trial; the German medical profession fears that those crimes which, in fact, were committed by individual doctors, who may have been rightly charged, are to be taken as typical of the entire medical profession. Indeed, during the last months we could hear in the press and on the radio that the entire medical profession was here in the prisoners’ dock; unfortunately, by thus generalizing, the matter was presented as though the entire medical profession was corrupt and that the majority of German physicians had committed such crimes or at least approved them, as stated here in the indictment at the trial. This conception is wrong and unjust. The German medical profession numbered about 80,000 members and if we add the Wehrmacht physicians and the official physicians, one arrives at about 100,000 physicians. Now let us compare with this total number the small number of physicians and researchers here in the dock. There are altogether 20 men. Of what importance is such an insignificant number for the judging of the entire profession? If out of 5,000 German physicians one single person committed a crime, it is impossible to draw a conclusion from these few exceptions regarding the behavior and morals of the whole class. And even if we suppose that perhaps another few hundred physicians and researchers not here in the dock had taken part in the “experiments on human beings” and in the “euthanasia action”, the number of guilty persons in comparison with the total number of the entire profession is still too small to entitle one to consider the entire profession as criminal, and morally inferior because some individuals committed a wrong.

There is yet another point of view. It stands to reason that not all experiments on human beings can be excused and justified, not even during a time of total warfare and under a dictatorship, and no decent person would ever think of excusing the way and manner in which the Hitler State carried out the “Euthanasia Program.” However, it is an incontestable fact that large-scale experiments on human beings cannot altogether be avoided and are, in fact, carried out throughout the whole world, and that there are different viewpoints concerning the problem of euthanasia, even to a limited extent in the circles of conscientious physicians when this is carried out on a proper legal basis, and when, in addition, full precautions are taken to prevent abuses. It must not be overlooked that the deterioration of the medical profession claimed in connection with this trial is connected exclusively with the problem of experiments on human beings and with euthanasia, but that no accusations are made against the professional practice of the German physicians in any other respects; there are especially no accusations referring to the relationship between the sick patient and the physician whom he had chosen as a helper and confidant to restore his health. This confidence in the attending physician felt by the patient has remained completely untouched by this trial.

We Germans have our own opinion about our physicians, we know their conscientiousness and willingness to render help; especially during the war we have been able to observe and appreciate their readiness to sacrifice themselves; we know that the good qualities that made the German physicians and researchers a model in former decades were not lost during Hitler’s time, and it would be a pity if the abuses, which have been revealed and proved by this trial, should serve to undermine the confidence of the German people in their physicians and expose them to the contempt of all civilized nations.

Individual researchers, who out of ambition or a passion for research did not value a human being’s life more than that of a rabbit, should not be considered representative of the German physicians’ profession, nor should those physicians of the concentration camps, who for lack of a conscience or for some other wicked reason gave fatal injections to prisoners or tortured them to death, be regarded as representative of the German medical profession. No. Representative of a model German physician during Hitler’s time, too, is the non-political, practicing physician, who, even if he did perhaps formally belong to the Party, strongly opposed from the bottom of his heart all kinds of violence and intolerance, who is closely bound to his nation and its needs, the practicing physician who cared for his patients in the most devoted manner day after day and night after night during the time of total war and fearful bombardments, which is especially hard for a physician; or who as military physician served at the front far from home, from his practice, from his family, fairly sharing all the hardships, dangers, and privations with his soldiers. And the surgeon who, as director of his clinic, operated and cured and helped from morning till night wherever he could help without having time to breathe, let alone to take part in political activity, he also is representative of the model German physician during Hitler’s time too.

I do not know what verdict you will arrive at respecting one or the other of these defendants; but, as defense counsel of the former Deputy Reich Physicians’ Leader, I beg you to make it clear by your verdict that in judging the defendant, if you must condemn him, you do not condemn and defame the entire German medical profession, but that the abuses which were committed were individual acts such as, perhaps, happened in all professions during Hitler’s time without necessitating a condemnation of the entire profession. These were individual acts arising perhaps partly from personal criminal tendencies of individual fanatics, partly from being connected with the excesses of a total war in a dictatorship of unscrupulous violence.

If beside the 23 defendants there is a 24th sitting in the dock, invisible to our eye, he is not of the German medical profession but the SS spirit of Himmler and of a dozen other murderers of millions of people. This spirit might have led a fanatic to forget his professional ethics and to commit crimes. But the entire medical profession remained sound and conscious of its duty.

May your verdict not completely rob the German people of their confidence in their physicians but restore it to them, and I have no doubt that after the present crisis has been overcome and in more normal circumstances, the German medical profession will prove to its people that as a body it never forgot nor will ever forget the professional ethical commandments of the Hippocratic oath.


EXTRACT FROM THE CLOSING BRIEF FOR
DEFENDANT ROSTOCK

Introduction

Mr. President, your Honors:

The great English historian and sociologist, Thomas Carlyle, once said, “Your life, and were you the humblest of human beings, is not a wild dream but a lofty fact.” I do not want to speak to you in this courtroom without first recalling this saying and thereby seeing before my eyes the picture of the great number of our fellow human beings whose lives have really become a wild dream. The fact on which this trial is based, that defenseless human beings were used by doctors of my country for experiments and in part died after suffering tortures, cannot be denied. I, myself, would doubt the clarity of my judgment as a German jurist if I did not realize that general human rights, such as the fundamental standards anchored in all civilized nations, have been violated thereby. Medical science should bring help and healing to suffering humanity. I am proud to state that it was German doctors who, in the last century, saved millions of human beings from the most serious and fatal diseases by their research. Let me remind you only of names such as Robert Koch, Emil von Behring, Paul Ehrlich, Theodor Billroth, and August Bier, or medicines such as Germanin, atabrine, Salvarsan, diphtheria serum, tetanus serum, and many others. If it were possible to achieve such decisive results in any other way, this would only confirm the actual truth, that no one, no matter how highly placed and no matter how important his aims, has the right to lower other human beings to the level of guinea pigs by force. How could a man venture to dispose in that way of the life and health of his fellow men, be they ever so humble? It seems to me that this involves a fundamental contradiction to the duty of the doctor, a violation of the dignity of the individual, and a presumption which cannot remain without horrible results. There may be doubtful cases, there may be borderline cases, but the solution of these questions can be based on only one principle, which is that all creatures in human form have an equal right to life and health. Humanity would be in a sad state if again and again there were not volunteers from the ranks of physicians and laymen who made themselves available for experiments, conscious of their contribution toward saving and healing other human beings. But how can a man dare simply to designate others to suffer and die, when they, too, like to live and be free from want and fear, just like he himself? * * *

3. MEDICAL EXPERIMENTS IN OTHER COUNTRIES

a. Introduction

The practice of medical experimentation upon human beings in other countries was brought out by the defense in an effort to show that the medical experimentation in which these defendants engaged was not criminal. Extracts from the argumentation of the defense have been selected from the closing briefs for the defendants Karl Brandt and Ruff. These appear below on pages 90 to 93. From the evidence on this question, the following appear below on pages 95 to 121: Selections from defense documents, followed by extracts from the cross-examination of one of the prosecution’s expert witnesses Dr. Andrew C. Ivy and an extract from the cross-examination of the defendant Rose.

b. Selections from the Argumentation of the Defense

EXTRACT FROM THE CLOSING BRIEF FOR
DEFENDANT KARL BRANDT


Reference has furthermore been made to the extraordinarily large number of persons available for experiments. With regard to the experiments made and on the basis of the evidence of this trial, experiments on a large scale have been made only in rare cases, and these may be compared in size with experiments on a large scale outside of Germany, as they were made even in peacetime; reference is made once more to the malaria experiment. (Karl Brandt 1, Karl Brandt Ex. 1.)

If one considers the number of persons sentenced to death who were subjected to experiments, the number is comparable to those eleven condemned persons for the poison experiment in Manila. (Becker-Freyseng 60a, Becker-Freyseng Ex. 59.)

One should compare, among others, the plague experiments by Strong in 1912 on 900 convicts, including an experiment on 42 persons some of whom were persons sentenced to death, and the typhus experiments by Hamdi on 153 persons. (Becker-Freyseng 60a, Becker-Freyseng Ex. 59.)

If the number of condemned persons used for experiments in these proceedings appears high, it should be taken into consideration that the number of persons sentenced to death under the laws of war is also unusually high. For the protection of the country, criminal laws are, during wartime, applied more rigorously in all countries in order to guarantee safety at home during the absence of the male population at the front. The number of ordinary criminals who have been punished on account of acts committed by taking advantage of war conditions, and especially of the blackout, is already unusually high; it is, therefore, not even necessary to include herein the persons sentenced for political crimes.

In this connection the viewpoint of the English scholar Mellenby of the London School of Hygiene and Tropical Medicine deserves special consideration. (Becker-Freyseng 60, Becker-Freyseng Ex. 58.) In the well-known medical journal “The Lancet” of 1 December 1946, this doctor quotes particularly the political conditions in Germany as decisive and as an excuse for the accused persons. One may not, therefore, subsequently refer to the general conditions in Germany during the war years in order to judge the acts committed during this time more severely.

The number of human guinea pigs used in the experiments alleged by the prosecution is about 2,000. The number of human guinea pigs known to the defense from published data amounts to more than 11,000 persons. If among those, minor experiments are also to be found, it may be supposed that the experiments published contain only the material fit to be known to the public. Publications show the results but not the sacrifices and undesirable incidents. That which the defense can present is not the result of an exhausting criminal investigation.

Looking at only these experiments which were considered fit for publication, one cannot possibly come to the conclusion that they were made only with volunteers. I refer in this connection to the compilation of experiments in Document Karl Brandt 117, Karl Brandt Exhibit 103, namely 32 experiments on at least 1,580 persons: they are experiments on persons sentenced to death, prisoners and soldiers, women and girls; the experiments are often carried out in such a way that it cannot be presumed the subjects volunteered.

Voluntary service of the human guinea pigs has not been claimed either; only in two cases has it specifically been pointed out. The volunteers in one of these experiments were medical students. Outstanding in this document are 13 experiments with at least 223 children. One cannot assume that the parents had given their consent. In this connection reference is made to Document Karl Brandt 93, Karl Brandt Exhibit 29, regarding the experiments of Professor McCance.

 

EXTRACT FROM THE CLOSING BRIEF FOR
DEFENDANT RUFF


Experiments which time and again have been described in international literature without meeting any opposition do not constitute a crime from the medical point of view. For nowhere did a plaintiff arise from the side of the responsible professional organization, or from that of the administration of justice, to denounce as criminal the experiments described in literature. On the contrary, the authors of those reports on their human experiments gained general recognition and fame; they were awarded the highest honors; they gained historical importance. And in spite of all this, are they supposed to have been criminals? No! In view of the complete lack of written legal norms, the physician, who generally knows only little about the law, has to rely on and refer to the admissibility of what is generally recognized to be admissible all over the world.

The defense is convinced that the Tribunal, when deciding this problem without prejudice, will first study the many experiments performed all over the world on healthy and sick persons, on prisoners and free people, on criminals and on the poor, even on children and mentally ill persons, in order to see how the medical profession in its international totality answers the question of the admissibility of human experiments, not only in theory but also in practice.

It is psychologically understandable that German research workers today will, if possible, have nothing to do with human experiments and will try to avoid them, or would like to describe them as inadmissible even if before 1933 they were perhaps of the opposite opinion. However, experiments performed in 1905-1912 by a highly respected American in Asia for the fight against the plague, which made him famous all over the world, cannot and ought not to be labelled as criminal because a Blome is supposed to have performed the same experiments during the Hitler period (which, in fact, however, were not performed at all); and experiments for which, before 1933, a foreign research worker, the Englishman Ross, was awarded the Nobel prize for his malaria experiments, do not deserve to be condemned only because a German physician performed similar experiments during the Hitler regime. One should not say that experiments, where different diseases or different drugs from those referred to in this trial were dealt with, have no connection with the charges of this indictment because of this difference and that, therefore, they are of no importance as evidence. In the foreground there stands the basic question as to the conditions under which such experiments are permissible; whether they refer to plague or typhus, to tuberculosis or jaundice, is a secondary question which concerns the medical expert more than the jurist.

Decisive for this trial is the question whether the conditions under which experiments were performed by the defendants were those internationally recognized as for the experiments which were performed by foreign research workers with the approval of all civilized humanity.

If one wants to arrive at a just and satisfactory decision, one must disregard the fact that here German research workers are accused. On the contrary, one has to strive toward obtaining an international basis to represent the present international opinion on human experiments, one which for decades, if not for centuries, will form the criterion for the permissibility of human experiments. We, as jurists, can only render a service to the development of medical science and therewith to humanity if we endeavor to establish an incontrovertibly clear view of today’s international opinion on human experiments, whether these experiments were performed by Germans or by foreigners.

 

 


c. Evidence

Defense Documents
   
Doc. No.Def. Ex. No.Description of DocumentPage
Karl Brandt 1Karl Brandt Ex. 1Extract from “Life”95
Magazine concerning malaria experiments on convicts in U. S. penitentiaries.
   
Becker-FreysengBecker-FreysengStatement of Professor95
60Ex. 58Dr. Hans Luxenburger and Dr. Hans Halbach concerning the report on experiments on human beings in world literature (Becker-Freyseng 60a, Becker-Freyseng Ex. 59).
   
Becker-FreysengBecker-FreysengExtracts from report on96
60aEx. 59experiments on human beings in world literature; excerpts from various newspapers and medical weeklies.
   
Karl Brandt 117Karl BrandtExcerpts from the103
Ex. 103dissertation “Infection Experiments on Human Beings” by Alfred Heilbrunn of the Hygiene Institute of the Wuerzburg University, 1937, concerning experiments on human beings in other countries.
Testimony
 
Extracts from the testimony of prosecution expert witness Dr. Andrew C. Ivy.110
Extract from the testimony of defendant Rose118

 

 

PARTIAL TRANSLATION OF DOCUMENT KARL BRANDT 1

KARL BRANDT DEFENSE EXHIBIT 1

EXTRACT FROM “LIFE” MAGAZINE CONCERNING MALARIA EXPERIMENTS ON CONVICTS IN UNITED STATES PENITENTIARIES

Extract from “Life”, Vol. 18, Nr. 23 of June 4, 1945

Prison Malaria

Convicts expose themselves to disease so doctors can study it.

In three United States penitentiaries men who have been imprisoned as enemies of society are now helping science fight another enemy of society. At the United States Penitentiary in Atlanta, the Illinois State Penitentiary, and New Jersey State Reformatory some 800 convicts volunteered to be infected with malaria so medical men can study the disease. The experimenters, who are directed by the Office of Scientific Research and Development, have found prison life ideal for controlled laboratory work with humans. Their subjects all eat the same food, sleep the same hours, and are never far away. The prisoners are not pardoned or paroled for submitting to infection.

Prison malaria experiments underline the fact that malaria is still a very serious medical problem. In the United States there are 1,000,000 cases a year. The existing drugs (mainly quinine and atabrine) control malaria but cannot keep it from recurring long after the original infection. The goal of malaria research is to find a new drug which will cure the disease permanently.

 

 

PARTIAL TRANSLATION OF DOCUMENT BECKER-FREYSENG 60

BECKER-FREYSENG DEFENSE EXHIBIT 58

STATEMENT OF PROFESSOR DR. HANS LUXENBURGER AND DR. HANS HALBACH CONCERNING THE REPORT ON EXPERIMENTS ON HUMAN BEINGS IN WORLD LITERATURE (SEE ALSO BECKER-FREYSENG 60a, BECKER-FREYSENG EX. 59)

Experiments on Human Beings as Viewed in World Literature

I, Professor Dr. med. Hans Luxenburger, specialist in nervous diseases, resident at 35, Liebigstrasse, Munich, and I, Dr. ing. and Dr. med. Erich Hans Halbach, physician, of Prien-Chiemsee, have first been advised that we shall render ourselves liable to punishment if we give a false affidavit. We declare under oath that we have ascertained the correctness of the enclosed excerpts of scientific works and books, that is to say, with respect to the excerpts bearing the following numbers: 1, 5, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 42, 44, 46, 47, 48, 54 * * * by comparison with the original; with respect to the numbers 2, 3, 4, 6, 7, 9, 19, 41, 43, 45, 49, 50, 51, 52, 53 by certified photostatic copies, copies, translations or excerpts submitted to us by attorney at law Dr. Edmund Tipp.

We made the report “Experiments on Human Beings as Viewed in World Literature” to the best of our knowledge for presentation as evidence before the American Military Tribunal I in the Palace of Justice, Nuernberg, Germany.

Munich, 14 April 1947

[Signed]Prof. Dr. Hans Luxenburger
Dr. Hans Halbach

PARTIAL TRANSLATION OF DOCUMENT BECKER-FREYSENG 60a

BECKER-FREYSENG DEFENSE EXHIBIT 59

EXTRACTS FROM REPORT ON EXPERIMENTS ON HUMAN BEINGS IN WORLD LITERATURE; EXCERPTS FROM VARIOUS NEWSPAPERS AND MEDICAL WEEKLIES

 
Excerpt from the Certified Translation
 
Author: Ladell, W.S.S. (Med. Research Committee).
Title: Effects after Taking Small Quantities of Sea-Water. An experimental study. (From the research staff, National Hospital, Queen Square).
Quotation: The Lancet No. 6267 (October 1943) page 441.
Purpose: Contribution to the physiology of persons who received the same food and drinking water as shipwrecked persons in lifeboats. Studies regarding the effect of the drinking of sea water on the chloride balance, urea excretion, urine amount, and loss of body weight of shipwrecked persons.
 
Procedure:
 
   1. Three experimental persons, after one day without water, drank 240 cc. fresh water and 180 cc. sodium chloride 3.5 percent solution daily for 4½ days.
   2. Ten experimental persons, after one day without water, drank 540 cc. fresh water and 180 cc. sea water daily for 5 days; the following 4 days, 5 of these experimental persons drank 60 cc. fresh water daily, the following 4 days the other 5 experimental persons drank 60 cc. fresh water and 180 cc. sea water daily.
   3. Eleven experimental persons, after one day without water, drank 540 cc. fresh water daily for 5 days; 6 of these experimental persons received 60 cc. water and 180 cc. sea water daily for the following 4 days.
   4. Two experimental persons, after one day without water, drank 370 cc. fresh water each for 2 days, for the following 3 days daily 240 cc. fresh water each, plus 400 cc. sea water, the next 36 hours only 600 cc. sea water.
   All experimental persons moreover took only sea-rescue emergency rations in limited quantities, with 1 gr. sodium chloride at the most.
 
Experimental persons: 17 experimental persons from a naval hospital submitted “voluntarily to the severe experimental conditions”, without physical injury.
 
Excerpt from Certified Report 19
 
Author: Cameron and Karunaratne.
Quotation: Journal of Pathology and Bacteriology 42, 13 (1936).
Purpose: Studies of the poisonous effect of carbontetrachloride on human beings (report).
Experiment: Carbontetrachloride is administered to healthy criminals before their execution. The effect of the poison on the liver is determined by way of an autopsy. (Therapeutical normal doses 3.0 cc.: maximum dose 5.0 cc.)
 
2 test persons receive twice 6 cc. (Nichols and Hampton)
3 test persons receive twice 4 cc. (Docherty and Nichols)
2 test persons receive twice 5 cc.* (Docherty and Burgess)
1 test person receive twice 5 and 3 cc.* (Docherty and Burgess)
3 test persons receive twice 10 cc. (Leach, Haughwout and Ash)
* with subsequent laxative.
 
Result: In some cases changes in the liver, in others none.
Test persons: 11 criminals sentenced to death.

 
Excerpt from Original 20
 
Author: Lt. Col. Kendall, A.E., Lt. Col. Dickinson, S.P., Lt. Col. Forrester, J.S.
Title: The Treatment of Bacillary Dysentery in Chinese Soldiers with Sulfaguanidine and Sulfadiazine.
Quotation: American Journal of Medical Science 211,103 (January, 1946).
Purpose: Page 103: “The opportunity to make controlled observations of the efficacy of sulfaguanidine and sulfadiazine in the treatment of acute bacillary dysentery has recently presented itself to us. In an Army general hospital in northeastern India caring for Chinese and American troops, we have observed many hundreds of cases within the past year. It early became apparent that we were dealing with a relatively benign form of the disease with a uniformly favorable outcome. Under these circumstances, it seemed both justifiable and important to utilize the opportunity to determine to what extent sulfonamide therapy shortened the course of the disease or otherwise favorably influenced its course.”
Experiment: “The present communication describes the results of such an investigation, carried out in the 7-month period from June through December 1943, in which the results of treatment were compared in 334 Chinese patients with bacillary dysentery, one-third received sulfaguanidine and one-third, sulfadiazine.”
Results: Page 109: “Neither drug shortened the course of the disease, ameliorated the symptoms, nor altered the eventual outcome.”
Test persons: 334 Chinese soldiers patients.
  
Excerpt from the Original Report No. 23
  
Author: See below.
Title: Trench Fever Report of Commission Medical Research Committee, American Red Cross, University Press 1918. Trench Fever, Bruce, Final Report of the War Trench Fever Investigation Committee, Journal of Hygiene 1921, page 258.
Quotation: Reference in Kolle-Kraus-Uhlenhut, Manual of Pathogenic Micro-organisms. VIII/1, 1302, (1930).
Purpose: “The American Commission (President: Strong, Members: Swift, Ople, McNeal, Beetjew, Pappenheimer, Peacoc, Rapport) interpreted its task in a preponderantly practical way, trying to clarify the methods of transmission and to safeguard the troops from infection. The English Commission (President: Bruce. Members: Harvey, Bacot, Byam, Trench, Arkwright, Fletcher, Hird, Plimmer) set itself the task of investigating the disease completely and thoroughly, particularly also the causative agent.”
Experiment: “The experiments of the English-American Commissions, those of transmitting Quintana with the entire blood were largely positive, and the intravenous injection showed better results than the intramuscular and particularly the subcutaneous.
    “Experiments for the transmission of lice were carried out by the English and American Commissions on the two bases: The bite of lice and the rubbing in of infected lice secretion.”
    The first announcement of the American Commission on successful transmission of lice came on 14 February 1918; the first successful experiment on the transmission of lice of the English Commission on 9 March.

Transmission Experiments:
  
with Plasmapositive in 7 cases
with Serumnegative
with red blood corpusclespositive 3 times in 4 experiments
with blood from skin which has been scratchednegative
  
Infection:
  
with secretion of licepositive
with sputum and salivapositive once in 4 experiments
with urine of patients rubbed into the skinpositive 5 times in 8 experiments
through the conjunctivapositive
through the urethranot successful
through the mouthnot successful
through food and drinknot successful
  
Experimental persons: Approximately at least 100
Result: Clarification of the etiology and the methods of transmission.
 
Excerpts from the Original Report No. 25
 
Author: Hamdi.
Title: Results of Immunization Tests against Typhus.
Quotation: Journal for Hygiene 1916, 82. Quoted in Kolle-Kraus-Uhlenhut, Manual of Pathogenic Micro-organisms VIII/2, 1204 (1930).
Purpose: See title.
Experiment: “By means of virulent blood of patients, Hamdi was in a position to check on a large number of persons who had been treated before partly with the blood of patients (80), partly with the blood of reconvalescents (54), partly with a mixture of both blood types (19) * * *. Upon the infection with the blood of patients, none of the thrice protectively vaccinated persons became ill, two out of seven persons who had been protectively vaccinated only twice became ill.”
Experimental persons: “In the first place, these experiments concerned persons who had been sentenced to death for crimes,”
“* * * large number * * *.”
Result: Effectiveness of protective vaccination was proved.

 
Excerpt from Original Report No. 26
 
Author: Doerr, R.
Title: Pappataci Fever and Dengue.
Quotation: Kolle-Kraus-Uhlenhut, Manual of Pathogenic Micro-organisms VIII/1, 501 et seq. (1930).
Purpose: Research in Etiology and Transmission of Pappataci Fever.
Experiment: II. Pappataci Fever. Page 508: “The organism circulates in the blood of the patients during the first 24 hours after the beginning of the fever. Its presence is betrayed only from the pathogenicity (infectivity) of the blood for healthy and receptive (not immune) human beings. If such an individual were to be injected with the blood of a subcutaneously feverish person he would fall ill * * * of a fever attack typical in every respect. This experiment was at first successfully performed by Doerr (1908), later by Doerr and Russ in the Hercegovina, by Birt in Malta, by Tedeschi and Napolitani in Italy, by Lepine (Three Days Fever in Syria, Bull. Soc. path. exot. 20, 251, 1927) in Syria. The experiment was repeated by Kligler and Ashner in Palestine and furnished positive results in about 35 single experiments. In this connection it must be considered that, almost without exception, the inoculated persons lived in areas free from epidemics and phlebotomus so that an accidental natural infection was out of the question from the beginning.”
    Page 513: “But Whittingham and Rook brought infected phlebotomus from Malta to England. They succeeded in breeding imagines from the eggs of flies laid in England and infecting human beings by the bites of these flies, that is producing fever attacks. In this way, the question of where the virus of the Pappataci fever remains over the winter would apparently be answered.”
 
Experimental persons: About 35.
Result: Determination and confirmation of the etiology and the method of transmission.

 
Report After the Original No. 33
 
Author: Goldberger, Joseph (USA Public Health Service 1914).
Quoted from: Bernhard Jaffe, Scientists in America, Overseas Edition Incorporated, New York 1944, page 401 et seq.
Purpose: Proof that pellagra is a deficiency disease.
Experiment: One-sided deficiency diet (restricted in quality) which caused 7 severe cases of pellagra.
Experimental persons: 12 voluntary prisoners of the Rankin-Prison-Farm to whom their freedom was promised after survival of the experiment, with the agreement of the governor of the state. All survived and were set free.
 
Excerpt from Original 44
 
Author: Fraenkel, E.
Title: Report on Infectious Colpitis Epidemica Observed in Children.
Quoted from: Arch. Path. Anath. a. Physiol. (Virchow) 99, 251 (1885).
Purpose: Page 263: Confirmation of the suspicion of an “infection of the conjunctiva caused by vaginal secretion.” Animal tests showed negative results.
Experiment: Page 263: “By chance I had the possibility to inoculate the vaginal secretion (of sick women) into the conjunctiva of 3 children patients who were in the final stage of the disease (two were suffering from atrophia infantum, the third from cheesy pneumonia) * * *.”
    Page 264: “The two pus-producing patients had suffered for several weeks from their colpitis.”
Result: 2 children died—1½ and 2 days after the inoculation without showing any reactions. The third child contracted conjunctivitis, which healed after treatment, and died on the 10th day.
Experimental subjects: 3 moribund children.
 
Excerpt from Original 48
 
Author: Current Comment. Summary of a study taken from Epidemiology Unit No. 50.
Title: Cholera Studies in Calcutta.
Quotation: Journal of the American Medical Association 130, 790 (1946).
Aim: Page 790: “* * * control experiment on the treatment of cholera * * *.”
Experiment: Page 790: “* * * in a highly endemic or epidemic area of India, patients were taken in rotation as they were admitted to the hospital and assigned to the following group according to the treatment given:
 
    A, sulfaguanidine;
    B, control;
    C, sulfadiacine;
    D, penicillin; and
    E, sulfadiacine and penicillin combined.
 
All patients received supportive treatment in the form of i.v. hypertonic and isotonic solution of sodium chloride and oral stimulants as indicated of offset dehydration, emaciation, and circulatory failure.”
 
Result: Page 791:
 
    1. Patient treated with plasma in addition to chemo-therapy: death rate: zero.
    2. Patients receiving chemo-therapy alone: death rate 1.1 percent.
    3. Control group consisting of all patients who had not received treatment or who had insufficient treatment or only supportive treatment: death rate 38.3 percent.
    “The dramatic effect of plasma is still more evident if the shock or collapse cases are segregated and tabulated. There were, in all, 78 severely ill patients in that group. The results in the group showed a mortality rate of 95.8 percent for the control group, 15.8 percent for the chemo-therapy, and no mortality in the group treated with plasma plus chemo-therapy.”
 
Experimental subjects:
 
No numbers given, presumably several hundred, nonvoluntary as clinical serial tests.

PARTIAL TRANSLATION OF DOCUMENT KARL BRANDT 117

KARL BRANDT DEFENSE EXHIBIT 103

EXCERPTS FROM THE DISSERTATION “INFECTION EXPERIMENTS ON HUMAN BEINGS” BY ALFRED HEILBRUNN OF THE HYGIENE INSTITUTE OF THE WUERZBURG UNIVERSITY, 1937, CONCERNING EXPERIMENTS ON HUMAN BEINGS IN OTHER COUNTRIES

Excerpt from “Infection Experiment on Human Beings”

Inaugural Dissertation for the Attainment of the Degree of a Doctor of Medicine at the Friedrich-Wilhelm University of Berlin;

submitted by: Alfred Heilbrunn,

Hofgeismar (Hesse Nassau) 1937

From the Hygiene Institute of Wuerzburg University. (Dean: Professor M. Knorr)

Printed by: F. W. Gadow and Son, Hildburghausen.

(The pamphlet is in the library of the Erlangen University.)


MALARIA

Infection experiments with malaria take up much space in literature. The desire to acquire an exact knowledge of this disease, so important to various countries, makes this fact appear quite understandable. Therefore, numerous experiments on human beings were carried out even before the discovery of the plasmodium malariae and without knowledge of the transmission by anopheles. In the following enumeration, these experiments will be quoted chronologically, thus giving a picture of how the knowledge of the etiology, the infectiousness and the transmission of malaria, was discovered through infection experiments on human beings.

1. (LV 7) * * * SALISBURY (quoted from Mannaberg: Malaria Diseases, Vienna 1899. Nothnagel, Special Pathology and Therapy II 2.) * * * Experiment: * * * Two * * * men * * * after 12 and 14 days, fell ill with typical tertiana. The same experiment in a second case again turned out a positive result.

2. (LV 8) * * * DOCHMANN (Dochmann: The Doctrine of febris intermittens. St. Petersburg Medical Journal. No. 20, quoted from Virchow-Hirsch 1880) * * *. His experiments * * *. 1st experiment: He inoculated * * * a healthy 30-year-old man subcutaneously with * * * feverish chills.


2d experiment: * * * Inoculation of three men * * *

1st man: * * * fever

2d man: Only passing indisposition.

3d man: Stayed completely well.

3d experiment: Inoculation of a woman * * *

* * * shivering fits, fever, * * *

3. (LV 9) * * * GERHARD (Gerhard: quoted from Olpp: Famous Tropical Physicians Publ. Quello, Tuebingen) * * * transmitted * * * malaria from a sick person to a healthy one through subcutaneous blood injections.


4. (LV 10) * * * MARCHIAFAVA and CELLI (Marchiafava and Celli: New Research on Malaria Infection, Progress of Medicine, 1885, 787, 795) * * * Five experiments were carried out on patients suffering from nervous disorders.

1. Experiment: Experimental subject a 17-year-old man with myelitis transversa * * *

* * * progress of fever

* * * spasm * * *

* * * swelling of the spleen * * *

An examination of the blood gave an excellent confirmation of the malaria nature of the fever attacks * * *

2. Experiment: Experimental subject a 68-year-old man with hemichorea.


Characteristic attack of malaria, * * * moderate spleen tumor.

3. Experiment: Experimental subject a 32-year-old man with multiple sclerosis.


* * * characteristic attacks, spleen tumor.


4. Experiment: Experimental subject a 47-year-old man with multiple sclerosis.


No pathological manifestations in the blood picture.

5. Experiment: Experimental subject a 23-year-old man with poliomyelit. ant.


* * * fever * * *

These experiments showed that—

(1) in the blood of malaria patients, corpuscles were often found in the interior of the red blood corpuscles in amoeboic movement and susceptible to coloring with aniline.

(2) the disease is transmissible, and that the same amoeboic formations were found in the blood of the experimental subjects as in the blood of the donors. The scientists carried on the work on the basis of these results and came to the conclusion that these amoeboic corpuscles were the morbific agents of malaria. In order to be quite sure they made another inoculation experiment.

Experimental subject was a 43-year-old man with paralysis agitans.


* * * continual subnormal temperature accompanied by bad general condition . . .

* * * plasmodia moving in the blood * * *

5. (LV 11) The experiments of MARCHIAFAVA and CELLI are confirmed by a whole series of other Italian authors. I found the experiments in the book of MANNABERG (page 7) in the form of tables and reproduce them here in the same way. (vide pages 10-13) * * *

(LV 12) CELLI (Celli: quoted from Mannaberg (7)) had several persons in the Roman hospital S. Spirito drink water from the Pontinc Marshes and from the marshes near Rome and found that these persons did not contract malaria.

(LV. 13) BRANCALEONE (Brancaleone: quoted from Mannaberg (7)) repeated the same experiment in Sicily with the same negative result.

(LV. 14) ZERI (Zeri: quoted from Mannaberg (7)) had 9 persons, for a period of 5-20 days, drink 1.5 litres of water each (in toto 10-60 l.) from a malaria district; he let 16 persons inhale the same water when sprayed. He administered it to 5 persons per rectum: none of the experimental persons got malaria. Also SALOMONE MARIO (LV. 15: Mario quoted from Mannaberg (7)) registered the same negative result.


No results were found in support of the water theory. It only remained to examine whether mosquitoes transmitted malaria through their sting.

6. (LV. 18) * * * BASTIANIELI (vide Mannaberg (7)) * * * To imitate the sting of the mosquito he did nothing but insert the point of the Pravaz syringe, moistened with malaria blood, under the skin. That sufficed in some cases to produce a severe case of malaria.


7. (LV. 20) * * * 1895 ROSS (Ross, page 9) let 4 mosquitoes of the species anopheles suck themselves full on the Indian Abdul Radir who had numerous crescent-shaped formations in his blood, and on 25 May he let the twenty-year-old Lutschmann, who was stated never to have been sick before, be stung by them. On 5 June the latter contracted fever which lasted for 3 days.


8. (LV. 23) In 1917 WAGNER-JAUREGG (Wagner-Jauregg: Psych. neurol. weekly 1918) introduced artificial malaria infection to cure progressive paralysis. Following this, now experiments were initiated.


9. (LV. 25) F. MUEHLENS and W. KIRSCHBAUM (Muehlens and Kirschbaum: Further Parasitological Observations on Artificial Malaria Infection of Paralytics. Archives for Ship and Tropical Hygiene 1924, Vol. 28, No. 4, page 131) in 1924 report on artificial malaria infection for the treatment of paralysis.


DIPHTHERIA


Despite the Behring therapeutic serum and the protective vaccine developed by Behring, the field of diphtheria immunity has always interested various research experts. Their efforts were all directed toward developing safe, active immunity.

48. (LV. 137) As early as 1902 DZIERGOWSKY (Dziergowsky, quoted from Seeligmann and Happe: The Position of the Active Protective Vaccine against Diphtheria. Result of Hygiene 11, 1930) reported on several experiments to protect human beings against diphtheria by a number of subcutaneous injections with a gradually increasing dose of Diphtheria-Toxin.


49. (LV. 138) BLUMENAU (Blumenau, page 137) worked on this principle in 1909. He soaked cotton wads in undiluted toxin and placed them alternately in the right and then in the left nostril of children from 3-12 years of age. He attained an antitoxin titer increase of up to 10 A.E. per ccm. of serum.

50. (LV. 139) BANDI and GAGNONI worked with killed bacteria (Bandi and Gagnoni, page 137). They injected measles convalescents with a 4-day-old crush of diphtheria bacilli cultures on agar which had been killed at 55° Centigrade * * *.

51. (LV. 141) BOEHME and RIEBOLD (Boehme and Riebold, One Way of Active Immunization against Diphtheria, Munich Medical Weekly 1924, 232) were the first to use living diphtheria bacilli for vaccination of human beings. After extensive experiments on guinea pigs, they proceeded to experiment on human beings. They used a diphtheria lymph, which they named Diphcutan, a mixture of living, highly toxic diphtheria bacilli cultures in NaC1. Sixty-two persons were vaccinated with this lymph with 10-20 scratches each on the upper arm. Those vaccinated were—

22children from 1½-5 years of age,
11children from 6-10 years of age,
17children from 10-15 years of age,
2youths from 15-20 years of age, and
9adults from 20-50 years of age.

52. (LV. 142) EBERHARD (Eberhard, Contributions toward active Immunization against Diphtheria. Hygiene Journal 105, page 614) tested 4 different vaccines produced by the Marburger Behringwerke for their suitability for immunization of humans and for use in public vaccination stations.


53. (LV. 143) BAYER used the lymph suggested by BOEHME and RIEBOLD (Bayer, On active Immunization against Diphtheria. Yearbook of Infant Therapeutics 1925, 273) and vaccinated 87 children with it * * *.

54. (LV. 144) MUELLER and MEYER (Mueller and Meyer, Diagnosis and Immunization of children threatened with Diphtheria. Journal of Infant Therapeutics 39, 405, 1925). They also checked the experiments by BOEHME and RIEBOLD with the same methods, vaccinated 53 children who had shown a positive reaction to the SCHICK test.


TYPHUS

55. (LV. 149) REITANO (Reitano, quoted from Rontal, Journal of Bacteriology 1933 III, page 112) vaccinated human beings with virus contained in dog ticks and produced typhus.

56. (LV. 150) One immunization experiment dating from the World War cost the lives of 50 Turkish soldiers. In the year 1915 immunization experiments against typhus were to be carried out in the hospitals of the 3d Turkish Army with inactivated blood from a diseased person. The doctor concerned took the blood from typhus convalescents and injected it, as HAMDI (Hamdi, On the Results of Immunization Experiments against Typhus-Exanthem. Hygiene Journal, 1916, 235) reports without having inactivated it, into 120 soldiers. Each received 5 ccm. subcutaneously. One soldier died after 14 days, others contracted typhus which, however, progressed in a satisfactory manner. After this the doctor vaccinated another 310 soldiers in the same way. Of these, 174 became ill and 49 died. On the average the incubation period was 12 days.


PLAGUE

62. (LV. 165) * * * BULARD (A. F. Bulard, De Moru, The Oriental Plague, Paris 1839) * * *


Experiments continued to be carried out on condemned persons. On 17 August at 8 o’clock in the morning, 18-year-old Ibrahim Hassan, who had been condemned to death, was dressed in the shirt, underwear, and jacket of a person seriously ill with the plague. Immediately after this he was placed in the bed of one of the patients which was still warm from the patient’s fever. Until 21 August there was no sign that even the slightest infection had taken place. No symptoms of the disease had developed. On the evening of the same day, however, he complained of a slight headache, loss of energy started, the blood circulation accelerated * * *

A Plague Bubo developed in the left groin * * * 25 August: Further vomiting of dark green matter. The tongue is dry and has a slightly brackish appearance. The pulse is light and quick. Respiration is jerky, the features are distorted. In the night death occurs.

On 7 August at 8 o’clock in the evening, Mohammed Ben Ali who has been condemned to death was dressed in the shirt, underwear, and jacket of a person seriously ill with the plague. Immediately thereafter he was placed in the patient’s bed. Until the 22d no symptoms of disease. On the morning of the 23d severe outbreak of the disease. Tottering gait, then walking impossible. Extreme loss of energy, appearance of being seriously ill * * *


On 18 August we inoculated a person condemned to death with blood through 4 vaccinational cuts in the fold of the right arm. This blood was taken from a head vein of a plague patient who had been ill for 2 days * * *

On 22 and 30 August a second person, condemned to death, with a plethoric constitution and of strong build was inoculated with blood. The first time in a fold of the left arm and in the right groin area, the second time in the opposite positions. On the area of the vaccination only the natural reddening and infections caused by the vaccination instrument appeared, nothing else.


“A third person condemned to death was inoculated with the fluid taken from a Plague Bubo in the groin and in the shoulder. This same person had dressed in the clothes of a plague patient 20 days previously and had contracted the plague with all its severe symptoms. The skin and tissue of this experimental subject remained refractory towards any absorption of the poison. Even when the inoculation with blood was repeated 8 days later, no disease resulted.”


SMALLPOX

In 1791, the teacher Plett of Holstein successfully vaccinated three of his landlord’s children in Starkendorf near Kiel. Later on when an epidemic occurred they did not contract the disease, while their brothers and sisters which had not been vaccinated fell sick.

81. (LV. 220) JENNER started from these premises. (Jenner, quoted from Paschen, K.Kr.U., Manual on pathological micro-organisms, T. VIII, 1, P821). In his first test, he inoculated with variola 16 persons who had suffered from cowpox previously. They did not fall sick.

In 1796, a milkmaid who suffered from a finger injury contracted an infection when milking a cow sick with cowpox. She developed a case of cowpox. With the contents of one pustule, Jenner vaccinated a boy. The boy developed typical vaccine pustules at the vaccination area of his arm. Two weeks later, Jenner carefully inoculated the boy on both arms with new pustule matter. No sickness ensued, and a second inoculation also was negative. Thus, clear proof was furnished that cowpox transmitted to human beings possessed the same protective value as that produced in animals.

However, another epidemic was necessary before Jenner’s success was recognized. In this instance he inoculated 6 children directly from the cow. They developed a slight infection, and a subsequent inoculation failed.

The success of Jenner’s experimental infections on human beings have resulted in a blessing for all mankind inasmuch as his fundamental experiments on human beings have caused the extermination of variola in all countries that have compulsory vaccination.

EXTRACTS FROM THE TESTIMONY OF PROSECUTION EXPERT
WITNESS DR. ANDREW C. IVY[27]


CROSS-EXAMINATION

Dr. Sauter: Witness, you are an expert in the field of aviation medicine?

Witness Dr. Ivy: Yes.

Q. May I ask you what fields within aviation medicine you have worked on specifically, because my clients, who are recognized specialists in this field, attach importance to ascertaining precisely what fields you have worked in particularly?

A. I have worked particularly in the field of decompression or pressure drop sickness, and I have also worked in the field of anoxia or exposure to altitude repeatedly at a level of 18,000 feet to ascertain if that has any effect in the causation of pilots’ fatigue.

Q. At what time did you specifically concern yourself with the fields you have just named? Was that before the Second World War, during the Second World War, or was it earlier than that?

A. My interest in these fields of aviation medicine, including free fall which I did not mention, started in 1939.

Q. Regarding your specific work in this field, Witness, you have also issued publications. I believe you spoke of two publications. Did I understand you correctly, or were there more?

A. There were two in the field of decompression sickness. There was one publication in the field of the effects of repeated exposure to a mild degree of oxygen lack. My other work has not yet been published but was submitted in the form of reports to the Committee on Aviation Medicine of the National Research Council of the United States.

Q. When were these two papers published of which you just told us; when, and were they printed by a publishing house? Did they appear in a journal or a periodical?

A. One appears in the Journal of Aviation Medicine either in September or October of 1946. The other appears in the Journal of the American Medical Association in either December or January 1946 or 1947. The publication on the effect of repeated exposure to mild degrees of oxygen lack at altitude appears in the quarterly bulletin of Northwestern University Medical School and part of the work, insofar as its effect on the elimination of the basis in the urine is concerned, appeared in the Journal of Biological Chemistry around 1944 or 1945, I am not sure of that date.

Q. Theretofore, Witness, you had thus made no publication in the field of aviation medicine before the papers of which you just gave the dates of publication?

A. The question is not clear.

Q. You just gave us the titles of the publications you have published and when; now I ask whether before the dates you just gave, you did not have any publications in the field of aviation medicine?

A. No. My first research started in 1939.

Q. You, yourself, have carried out experiments too; is that not so?

A. Yes.

Q. With human experimental subjects, of course?

A. Yes, and on myself.

Q. And with a low pressure chamber?

A. Yes.

Q. Were these frequent experiments, or were the experiments in which you, yourself, took part only infrequent in number?

A. The experiments in which I took part were infrequent in number compared to the total number of experiments which I performed.

Q. Did you take part in these experiments as the director of the experiments, as the person responsible, or were you usually the experimental subject yourself?

A. I served in both capacities. For example, I have frequently gone to the altitude of 40,000 feet to study the symptoms of bends with an intermediate pressure device, which we produced in our laboratory. I have been to 47,500 feet on three or four occasions, on one occasion at 52,000 feet for half an hour. I have frequently been to 18,000 feet without supplemental oxygen in order to study the effect of the degree of oxygen lack present there for my ability to perform psycho-motor tests.

Q. Can you tell us approximately during what year you began these experiments of your own?

A. In 1939.

Q. 1939; did you at this time carry out explosive decompression experiments too? Witness, one moment please, the English for that is “explosive decompression.” That is thus the experiment in which one ascends slowly to a certain height, let us say 8,000 meters, and then all at once suddenly one is brought up to a height of 15,000 meters; that is, first slowly up to 8,000 and then suddenly to, let us say, 15,000—that is what I understand under the term “explosive decompression” experiment, and my question is: whether you also carried out such experiments and if so when and to what extent?

A. I carried out over one hundred experiments on explosive decompression in various laboratories on animals, the rabbit, the dog, the pig, and the monkey. I did not serve as a subject myself in experiments on explosive decompression, but a student who was trained with me in physiology, Dr. J. J. Smith, did the first experiments on explosive decompression in which human subjects were used, at Wright Field. I am familiar with the work which Dr. Hitchcock did on this subject at Ohio State University in which he studied some one hundred students under conditions of explosive decompression.

Q. To what altitude, Witness; to what maximum altitude did you carry your own explosive decompression experiments?

A. In animals it was up to 50,000 feet; in the case of human subjects, the maximum was 47,500 with pressure breathing equipment.

Q. This altitude you reached in your own experiments. Now, Doctor, it would interest me to know to what maximum altitude have any experiments in explosive decompression been carried in America; what do you know about this maximum altitude?

A. I believe that 47,500 or slightly above is the maximum.

Q. Witness, do you know the German Physiologist Dr. Rein; Professor Rein, do you know his name; R-e-i-n from Goettingen?

A. Yes.

Q. At the moment he is the Ordinarius for Physiology at Goettingen, he is a rector at the university and a member of the Scientific Advisory Committee for the British Zone. On the basis of your own knowledge, do you consider Professor Rein an authoritative scientist in the field of physiology and aviation medicine?

A. I consider him an authoritative physiologist, I am not acquainted with his work in the field of aviation medicine.

Q. Mr. President, I previously put in evidence—I want to recall that now—an expert opinion from this Dr. Rein regarding Dr. Ruff. (Ruff 5, Ruff Ex. 3.) This expert testimony is from Professor Rein.

In your own experiments, Witness, you also used conscientious objectors, is that not so? Did I understand you correctly?

A. Yes, in some of the experiments.

Q. Will you tell us why you used conscientious objectors? Were they particularly adapted for these experiments; or what was the reason for you, as one conducting experiments, to use especially conscientious objectors?

A. It was their duty, their volunteer duty to render public service. They had nothing else to do but to render public service. In the experiments in which we used the conscientious objectors, they could devote their full attention to the experiments. Many of the subjects, which I have used, have been medical students or dental students, who besides serving as subjects had to attend their studies in schools. In the experiments we did on the conscientious objectors, they could not attend school at the same time and carry on or perform all the tests they were supposed to perform. For example, we used a group of conscientious objectors for repeated exposure to an altitude of 18,000 feet without the administration of supplemental oxygen. These tests involved the following of a strict diet, they involved the performance of work tests and psycho-motor tests, which required several hours every day to perform. Another group of conscientious objectors that I used were used for vitamin studies in relation to fatigue.

These conscientious objectors had to do a great deal of carefully measured work during the day as well as to perform psycho-motor tests so medical students or dental students could not be used. We had to have subjects who could spend their full time on the experiments.[28]


Q. Witness, from the answers that you have given so far, I am still not clear in my mind precisely why you hit upon conscientious objectors in particular as the experimental subjects. You said there were two groups of them: some were in prison and some had to perform public service. From the latter group you took your experimental subjects, but please give me a clear answer to the question: Why did you specifically use such conscientious objectors for your altitude experiments?

A. They could devote full time to the experimental requirements. They did not have to do any other work as was the case of medical students or dental students, the only other type of subjects that I had available to me.

Q. Doctor, these persons were obliged to perform public service. If these conscientious objectors had not been there or if they had been used for public service, then you would not have had any experimental subjects. There must be a specific reason why you specifically used conscientious objectors and I ask you, please, to tell me that reason.

A. Well, we could not have done the experiments unless the conscientious objectors had been available. That is the answer to your question.

Q. Could you not have used prisoners, even conscientious objectors who refused to do public service and were therefore in prison without doing any work? Could you not have used them?

A. Well, that would have meant that I and my assistants would have to go to the prison which was quite a distance away. The conscientious objectors could come to us at the university where they could live in the university dormitory or in the university hospital.

Q. Doctor, if your experiments were really important—perhaps important in view of the state of war—then it is difficult to understand why the experiments could not have been carried out in a prison, let us say. Other experiments have been carried out in prisons to a large extent, and on another occasion. Doctor, you told us that you simply had to get in touch with the prisoners; you simply wrote them a letter or you put up a notice on the bulletin board and then, to a certain extent, you had prisoners available. Can you give me no other information as to why you used specifically and only conscientious objectors?

A. No. If it had been convenient and necessary for me to use prisoners, I believe that we could have had prisoner volunteers for this work.

Q. Witness, were you ever in a penitentiary as a visitor?

A. Yes.

Q. Did you see there how the criminals condemned to death were housed?

A. Yes.

Q. Are they completely at liberty there or are the criminals condemned to death locked up in their cells?

A. They were locked up in their cells.

Q. Now, can you please tell us how a criminal condemned to death is to see the notice that you would put on the bulletin board? You told us today that it was very simple—you simply put a notice on the bulletin board—and for hours now I have been trying to figure out how a criminal condemned to death, who is locked up in his cell, is going to see that notice on the bulletin board.

A. While these prisoners are taken out for their meals, they can pass by a bulletin board, or a piece of paper with the statement on it which I read can be placed in their cells for reading or, as a large group in the dining room, the statement can be read to them.

Q. Are criminals condemned to death together at meals in America? So far as I know, there too the criminal condemned to death is given his food through an opening in the cell door; he cannot eat in a common mess hall.

A. Yes. But you must recall that I did not specify that the criminals which were used for malaria experiments were prisoners condemned to death; neither did I specify that if I were to go to a penitentiary to see if I could get volunteers for a nutrition experiment that I should select prisoners condemned to death.

Q. If you are speaking here of condemned criminals as experimental subjects, are you speaking of criminals condemned to death or just of criminals who have just received some sentence or other?

A. I have not used prisoners or criminals condemned to death. You have been using that statement. I have used prisoners.

Q. You spoke only of prisoners then?

A. That is correct.

Q. Are those prisoners in pre-trial imprisonment who have not yet been put on trial or are those prisoners who have already received some sentence?

A. Prisoners who have already received some sentence.

Q. In other words, prisoners who have been condemned or sentenced?

A. But not necessarily to death.

Q. Yes, other sentences, aside from the death sentence, included. Did you as a scientist interest yourself in the question of why a person was sentenced, for what crimes he was sentenced?

A. No, I did not.

Q. Did you at least concern yourself with the question whether the man was condemned, was sentenced by a regular court or a court martial, or an extraordinary court?

A. None of these prisoners would have been sentenced by a court martial; they would have been sentenced by an ordinary civilian court.

Q. How do you know? Did you see the personal files of these prisoners or did you see the opinions and sentences on the basis of which the prisoner had been incarcerated?

A. Only on the basis of the type of prisoner that would be incarcerated in a certain penitentiary.

Q. How do you, as a doctor, know exactly what sort of prisoner is incarcerated in this penitentiary and what sort of prisoner is incarcerated in another prison? How do you know that?

A. That’s a matter of common knowledge to one who reads the newspapers, the press, and who is generally informed on such matters. In a Federal penitentiary then you might have prisoners who have been incarcerated because of court martial.

Q. Are inmates of Federal penitentiaries used for experiments too, as far as you know?

A. Yes. They may be.

Q. In other words, political prisoners too, that is, prisoners who were condemned by a court martial or by another court?

A. We have no political prisoners in the United States.

Q. Are not prisoners condemned for high treason or treason and the like? Those are political crimes.

A. Not to my knowledge.

Q. For conspiring with the enemy during the war; such cases have not only arisen but they have also been punished, and you must know that from reading your newspaper, Professor; those are political prisoners. Do you not have those in America?

A. Not to my knowledge.

Q. Doctor, if I understood you correctly, you stated this morning that a medical experiment with fatal consequences is to be designated either as an execution or as a murder; is that what you said?

A. I did not say that.

Q. What did you say then?

A. It was more or less as I quoted it, as I remember, I said that under the circumstances which surrounded the first death in high-altitude experiments at Dachau, which Dr. Romberg is alleged to have witnessed, Dr. Rascher killed the subject; that the death could be viewed only as an execution or as a murder; and if the subject were a volunteer, then his death could not be viewed as an execution.

Q. Witness, in your opinion, is there a difference whether the experiments are to be traced back to the initiative of the experimenter himself, or whether they are ordered by some authoritative office of the state which also assumes the responsibility for them?

A. Yes. There is a difference, but that difference does not pertain, in my opinion, to the moral responsibilities of the investigator toward his experimental subject.

Q. I cannot understand that, Doctor. I can imagine that the state gives an experimenter the order, particularly during wartime, to carry out certain experiments, and that in peacetime, on his own initiative, the researcher would not carry out such experiments unless he was ordered to by the state. You must recognize this difference yourself.

A. That does not carry over to the moral responsibility of the individual to his experimental subject. I do not believe that the state can assume the responsibility of ordering a scientist to kill people in order to obtain knowledge.

Q. Witness, that is not the question. I am not interested in whether the state can order some one to murder; I am interested in the question whether, in your opinion, the state can order, let us say dangerous experiments, experiments in which perhaps fatalities may occur. In America, too, deaths occurred several times in experiments; what is your view on this?

A. The state, as far as I know, in the United States of America has never ordered scientists to perform any experiment where death is likely to occur.

Q. Doctor, I did not say where death was probable, I said where death is possible, and I ask you to answer the question I put to you. If deaths are probable, then you are correct, then it is murder. If deaths are possible, then I want to know what you say to that. And, let me remind you, Doctor, that even in the American Air Force deaths did occur; in other words, death was possible.

A. Yes, I agree that it is possible for deaths to occur accidentally in experiments which are hazardous. As I said in my testimony under such conditions when they do occur, their cause is investigated very thoroughly as well as the circumstances surrounding the death.


Q. Witness, you spoke yesterday of a number of experiments carried out in the United States and in other countries outside of Germany. For example, pellagra, swamp fever, beri-beri, plague, etc. Now, I should like to have a very clear answer from you to the following question. In these experiments which you heard of partly from persons involved in them and partly from international literature, did deaths occur during the experiments and as a result of the experiments or not? Professor, I ask you this question because you said yesterday that you examined all international literature concerning this question and, therefore, have a certain specialized knowledge on this question.

A. I also said that when one reviews the literature, he cannot be sure that he has done a complete or perfect job.

So far as the reports I have read and presented yesterday are concerned, there were no deaths in trench fever. There were no deaths mentioned, to my knowledge, in the article on pellagra. There were no deaths mentioned, to my knowledge, in the article on beri-beri, and there were no deaths in the article, according to my knowledge, in Colonel Strong’s article on plague. I would not testify that I have read all the articles in the medical literature involving the use of human beings as subjects in medical experiments.

Q. And, in the literature which you have read, Witness, there was not a single case where deaths occurred? Did I understand you correctly?

A. Yes. In the yellow fever experiments I indicated that Dr. Carroll and Dr. Lazare died.

Q. That is the only case you know of?

A. That’s all that I know of.


EXTRACT FROM THE TESTIMONY OF DEFENDANT ROSE[29]

CROSS-EXAMINATION


Mr. McHaney: Now, would the extreme necessity for the large scale production of typhus vaccines and the resultant experiments on human beings in concentration camps have arisen had not Germany been engaged in a war?

Defendant Rose: That question cannot simply be answered with “yes” or “no”. It is, on the whole, not very probable that without the war, typhus would have broken out in the German camps, but it is not altogether beyond the bounds of possibility because in times of peace too typhus has broken out in individual cases from time to time. The primary danger in the camps is the louse danger, and infection by lice also occurs in times of peace. If typhus breaks out in a camp that is infected with lice, a typhus epidemic can arise in peacetime too, of course.

Q. But Germany had never experienced any difficulty with typhus before the war. Isn’t that right?

A. Not for many decades, no.

Q. You stated that nine hundred persons were used in Dr. Strong’s plague experiments?

A. Yes, I know that number from the literature on the subject.

Q. What is the usual mortality in plague?

A. That depends on whether it is bubonic plague or lung pest. In one, namely, bubonic plague, the mortality can be as high as sixty or seventy percent. It also can be lower. In lung pest, the mortality is just about one hundred.

Q. How many people died in Dr. Strong’s plague experiments?

A. According to what his reports say, none of them died, but this result could not have been anticipated because this was the first time that anyone had attempted to inoculate living plague virus into human beings, and Strong said in his first publication in 1905 that he himself was surprised that no unpleasant incidents occurred and that there was only severe fever reaction. That despite this unexpectedly favorable outcome of Strong’s experiments the specialists had considerable misgivings about this procedure can be seen first of all from publications where that is explicitly stated; for example, two Englishmen say that, contrary to expectations, these experiments went off well but nevertheless this process cannot be used for general vaccination because there is always the danger that, through some unexpected event, this strain again becomes virulent. Moreover, from other works that Strong later published it can be seen that guinea pigs and monkeys that he vaccinated with this vaccine died not of the plague, but of the toxic affects of the vaccine. All these difficulties are the reason why this enormously important discovery which Koller and Otto made in 1903, and Strong in 1905, has only been generally applied, for all practical purposes, since 1926. That is an indication of the care and fear with which this whole matter was first approached, and Strong could not know ahead of time that his experiments would turn out well. I described here the enormous concern that Strong felt during all these months regarding the fact that that might happen which every specialist feared, viz., that the virus would become virulent again. That is an enormous responsibility.

Q. Be that as it may, nobody died. That is a fact, isn’t it?

A. If anyone did die, the publications say nothing about it. There were deaths only among the monkeys and guinea pigs that are mentioned in the publication. If human beings died, there is no mention in the publication. It is generally known that if there are serious accidents in such experiments as this, they are only most reluctantly made public.

Q. Now, Professor, I have no wish to limit you but, as I understand it, you have explained these things in considerable detail during the four days in which you have already testified. If you can give a short answer to my question that is all I want. If I want any further explanation I’ll ask you for it.

Now, what is the normal death rate in beri-beri?

A. That depends on the medical care given. If the care is good, the mortality is zero, and if they have no medical care at all, then a lot of them die.

Q. Sixty to eighty percent would probably die if they were not treated. Is that right?

A. Beri-beri lasts for many, many months before a person dies, and usually one does not die of beri-beri in sixty days—that would be a severe case.

Q. How many people did Strong use in his beri-beri experiments? Is twenty-nine all you know about?

A. So far as I know from the literature, the number was twenty-nine.

Q. Well, it says in the literature that he used only twenty-nine. Is that right?

A. So far as I know, yes.

Q. And one of those died?

A. According to what the literature says, one of them died.

Q. What is the mortality in typhus?

A. That varies enormously. It depends on the epidemic. In some epidemics the mortality is five percent. In general, you count on a mortality of twenty percent. In the Serb-Albanian epidemic in 1915, there was a mortality of seventy percent, but that mortality rate is so extraordinarily high that it is generally assumed that probably, in reality, there were more cases of typhus than were actually reported.

Q. Well, we could take roughly five to thirty percent as the mortality. Is that right?

A. Yes. That is what the textbooks generally say.

Q. What was the mortality in the Buchenwald experiments, Professor?

A. In the controlled cases in the experiments that I knew of, the mortality rate was thirty percent.

Q. Among the controls, you figured thirty percent?

A. Yes. There were ten control persons in the first group of experiments, and of them, three died.

Q. Three died? Well, but I assume that you have read through the Ding diary and let us assume for the moment that it is correct. Didn’t you say that they also used control persons in the four or five other series of experiments?

A. In the controlled cases where they were testing the vaccine, the general mortality rate was thirty percent. But then there were these therapeutic experiments in which, according to the diary, blood infections were undertaken and, in this case, the diary does mention an unusually high mortality rate.

Q. Well, Professor, for your information, we have figured out five control series in the Ding diary, and I mean by controls those that were not treated with anything. The mortality ranges between fifty-four to one hundred percent and averaged eighty-one percent. Do you accept those figures as correct? I mean, do you think that’s right?

Q. No. That does not correspond with the impression I got from the numbers in the diary, but I did not calculate it so precisely as all that. I looked at the individual experiments and it is true that, for instance, in these therapeutic experiments, Ding’s work mentions a mortality of something like fifty to fifty-five percent, and then there is one series that deals with blood infection where of twenty people, I believe nineteen died.

Q. Let me put it to you, Professor, is it not a fact that they were not dealing with epidemic typhus in Buchenwald, but with a super-typhus, developed from man to man passage, which was much more virulent and much more deadly than any typhus you could expect in an epidemic?

A. That I cannot judge because I have no knowledge of the work done in Buchenwald and can only refer to what Ding’s diary says, which I regard as unreliable.

Q. Well, if you regard it as reliable, Doctor, and if you figure out the deaths among the untreated control persons and find a mortality which averaged eighty-one percent, will you not, as a scientist and an expert on tropical diseases, concede that they had developed a highly virulent, something we might call a super-typhus, in Buchenwald? Isn’t that right, Professor?

A. As a scientist, I am accustomed to state my opinion on the basis of reliable documentation and not on the basis of such falsifications which are produced for a special purpose.

Q. I can appreciate that you do not regard the document as reliable, Professor, but we will investigate that a little later.



[1] Closing statement is recorded in mimeographed transcript, 14 July 1947, pp. 10718-10796.

[2] Final plea is recorded in mimeographed transcript, 15 July 1947, pp. 10874-10911.

[3] See section on Status of Occupied Poland under International Law, vol. I, pp. 974-979.

[4] Final plea is recorded in mimeographed transcript, 16 July 1947, pp. 11020-11048.

[5] Final plea is recorded in mimeographed transcript, 18 July 1947, pp. 11268-11288.

[6] Complete testimony is recorded in mimeographed transcript, 3, 4, 5, 6, 7 Feb. ’47, pp. 2301-2661.

[7] Complete testimony is recorded in mimeographed transcript, 15, 16 Apr. 1947, pp. 5926-5994.

[8] Complete testimony is recorded in mimeographed transcript, 12, 13, 14 June 1947, pp. 9029-9824.

[9] Closing statement is recorded in mimeographed transcript, 14 July 47, pp. 10718-10796.

[10] United States vs. Erhard Milch. Concurring Opinion of Judge Musmanno, vol. II, sec. VII, B.

[11] See also excerpts from the closing brief for the defendant Karl Brandt (Section VIII E, vol. I, pp. 983-990).

[12] Final plea is recorded in mimeographed transcript, 15 July 47, pp. 10874-10911.

[13] Art. 59 of the German Penal Code reads:

“If a person in committing an offense did not know of the existence of circumstances [Tatumstaende] constituting the factual elements of the offense as determined by statute [gesetzlicher Tatbestand] or increasing the punishment, then these circumstances may not be charged against him.

“In punishing an offense committed through negligence, this provision applies only insofar as the lack of knowledge does not in itself constitute negligence for which the offender is responsible.”

[14] Complete testimony is recorded in mimeographed transcript, 26, 27, 28, 31 March, 1, 2, 3 Apr. 47, pp. 5000-5244, 5334-5464.

[15] Complete testimony is recorded in mimeographed transcript, 12, 13, 14, 16 June 47, pp. 9029-9324.

[16] Final plea is recorded in mimeographed transcript, 18 July 47, pp. 11289-11309.

[17] Final plea is recorded in mimeographed transcript, 17 July 47, pp. 11128-11152.

[18] Complete testimony is recorded in mimeographed transcript, 26, 27, 28, 31 March, 1, 2, 3 Apr. 47, pp. 5000-5244, 5334-5464.

[19] Complete testimony is recorded in mimeographed transcript, 18, 21, 22, 23, 24, 25 April 47, pp. 6081-6484.

[20] Closing statement is recorded in mimeographed transcript, 14 July 1947, pp. 10718-10796.

[21] Final plea is recorded in mimeographed transcript, 15 July 47, pp. 10874-10911.

[22] Final plea is recorded in mimeographed transcript, 17 July 47, pp. 11128-11152.

[23] Complete testimony is recorded in mimeographed transcript, 18, 21, 22, 23, 24, 25 April 1947, pp. 6081-6484.

[24] Professor of History of Medicine at Erlangen University.

Complete testimony is recorded in mimeographed transcript, 27 Jan. 1947, pp. 1961-2028.

[25] Complete testimony is recorded in mimeographed transcript, 12, 13, 14 June 1947, pp. 9029-9324.

[26] Final plea is recorded in mimeographed transcript, 16 July 47, pp. 10972-10994.

[27] Complete testimony is recorded in mimeographed transcript, 12, 13, 14, 16 June 47, pp. 9029-9324.

[28] To the question of conscientious objection in the United States, see Section VIII E—Voluntary Participation of Experimental Subjects, cross-examination of Dr. Ivy (vol. I, p. 944 ff.).

[29] Complete testimony is recorded in mimeographed transcript, 18, 21, 22, 23, 24, 25 April 47, pp. 6081-6484.


IX. RULING OF THE TRIBUNAL ON COUNT
ONE OF THE INDICTMENT[30]

Presiding Judge Beals: The Secretary General will note for the record the presence of all the defendants in Court.

The Tribunal will now announce its ruling on the motion of certain defendants against Count I in the indictment concerning the charge of conspiracy.

MILITARY TRIBUNAL I

Count I of the indictment in this case charges that the defendants, acting pursuant to a common design, unlawfully, willfully, and knowingly did conspire and agree together to commit war crimes and crimes against humanity as defined in Control Council Law No. 10, Article 2. It is charged that the alleged crime was committed between September 1939 and April 1945.

It is the ruling of this Tribunal that neither the Charter of the International Military Tribunal nor Control Council Law No. 10 has defined conspiracy to commit a war crime or crime against humanity as a separate substantive crime; therefore, this Tribunal has no jurisdiction to try any defendant upon a charge of conspiracy considered as a separate substantive offense.

Count I of the indictment, in addition to the separate charge of conspiracy, also alleges unlawful participation in the formulation and execution of plans to commit war crimes and crimes against humanity which actually involved the commission of such crimes. We, therefore, cannot properly strike the whole of Count I from the indictment, but insofar as Count I charges the commission of the alleged crime of conspiracy as a separate substantive offense, distinct from any war crime or crime against humanity, the Tribunal will disregard that charge.

This ruling must not be construed as limiting the force or effect of Article 2, paragraph 2 of Control Council Law No. 10, or as denying to either prosecution or defense the right to offer in evidence any facts or circumstances, occurring either before or after September 1939, if such facts or circumstances tend to prove or to disprove the commission by any defendant of war crimes or crimes against humanity as defined in Control Council Law No. 10.


[30] Tr. pp. 10717-10718, 14 July 47.


X. FINAL PLEA FOR DEFENDANT KARL BRANDT[31]
BY DR. SERVATIUS

Mr. President, your Honors:

I cannot comment on all the questions which the prosecution brought up this morning. I must limit myself to a few things and can refer to my closing brief where I have gone into considerable detail on all these questions.

This morning I heard the detailed legal arguments advanced by the prosecutor. I have commented particularly on these legal questions in my closing brief, and I will now merely make a few brief comments.

The prosecution assumes that Law No. 10 is an independent law. This is not correct, for it designates itself explicitly as a law for the execution of the London Charter and declares that Charter to be an integral part of the law.

Now, the sole purpose of the London Charter is to punish disturbances of international legal relations, and not what has happened or is happening somewhere within an individual state. Any other interpretation would put an end to the conception of sovereignty, and it would give right of intervention into the affairs of other states.

In the trial before Tribunal III, Case No. 3, against Flick et al.,[32] General Taylor referred to an alleged right of intervention, quoting a considerable amount of literature with regard to this right of intervention into the internal affairs of another country.

I have ventured to refer to the position taken concerning this by one of the four signatory powers of the London Charter, a signatory power which was itself the victim of intervention in the name of civilization, the Soviet Union. I have attached the said literature to part I of my closing brief.

The Soviet Union drew a clear inference from the intervention to which it had been exposed by the Entente at the end of the First World War and obtained an alteration in the text of the London Charter, under which intervention would have been possible, by insisting that the text, which was ambiguous in consequence of the punctuation, be altered by the insertion of a comma. This comma was so important that the representatives of the four signatory powers met on purpose to discuss it.

It results therefrom that the internal affairs of a country cannot be affected by the London Charter and, consequently, by Law No. 10. Punishment by this Tribunal of acts committed by Germans against Germans is therefore inadmissible.

The prosecution further discussed at length this morning another question, that is the question of conspiracy. I have also commented on that in my closing brief. I will merely make a brief reply here to the prosecution.

The point of view of the defense, that a charge of conspiracy as an independent offense is inadmissible, was confirmed by the Tribunal’s decision of today. In that way the leak in the dike, so to speak, was stopped, and one cannot let the ocean pour into the land from the other side by declaring the conception of conspiracy admissible under common law.

The conception of conspiracy is really only a technical expedient of the jurists. Its purpose is to effect, beyond the number of accomplices in the true sense of the word, other persons who are considered deserving of punishment, but who cannot be proved guilty of complicity.

This may be done where the law against conspiracy is common law. If, however, this law is introduced in Germany after the event and applied to facts which have occurred in the past, this would mean that by a detour of the law of procedure new conceptions of offense would be introduced into material law. This would amount to an ex post facto law and is, therefore, illegal according to legal principles generally recognized.

The purpose of enlarging the circle of participants cannot be attained under Law No. 10 by breaking up the conception of conspiracy into its component parts and introducing forms of complicity hitherto unknown in Germany.

Now, I shall read my statement proper:

In the closing statement against the defendant Karl Brandt the prosecution discussed very little the counter-evidence brought forward by the defense in the course of the proceedings. They relied to a large extent on evidence already advanced in the indictment.

The affidavits of the defendants themselves play a special part in support of the prosecution. For the defendant Karl Brandt they are important with respect to his position and consequent knowledge of the event referred to in the indictment.

If these affidavits contain imputations they can only be used, according to the Tribunal’s statement, against the affiants themselves. As far as they involve the defendant Karl Brandt, however, they have been clarified in respect to the decisive issues. But in spite of this correction the first statements may prejudice credibility unless good reasons justify such correction.

Here the result of interrogations made in the initial proceedings is in contradiction to the evidence given before the Tribunal. On the basis of practical experience, German law considers as valid evidence only the result of an interrogation made by a judge. The reason is the lack of impartiality which may be found, quite naturally, in the case of an interrogating official who is to conduct the prosecution. The capacity of the interrogator to elicit the truth impartially depends on his character, his training, and his professional experience.

The qualification of the interrogators has been attacked here by the defense, but the prosecution has made no effort to substantiate it.

In order to form a judgment it is also important to know the general lines on which the prosecution carries out its interrogations. Under German law the prosecutor also has to ascertain and put forward exculpating material when investigating a case personally or through assistants. As to American procedure, Justice Jackson clearly rejected this principle during the trial before the International Military Tribunal and said he could never serve two masters.

This critical view of the affidavits is confirmed by their contents, which frequently show the struggle between the interrogator and the interrogated person. He is no classical witness who says, “I believe,” “I presume,” “as far as I remember,” and so on, for he shows thereby that he can give no positive information. And such testimony becomes completely worthless if conclusions are drawn in the form of, “It would have been impossible for him,” “he might have known,” “perhaps he was the highest authority,” and so forth.

Not only individual words thus demonstrated that the testimony is composed of conclusions, but whole parts of the reports show the same character.

In view of all this, the defendants’ contentions are to be believed, that they raised objections but succumbed to the weight of the prepared record presented to them and signed, trusting that they would have an opportunity later to clarify deficiencies and to state their true opinion.

This criticism of the defendants’ affidavits is also called for in the case of the affidavits given by the witnesses for the prosecution. Facts are recorded therein which the witnesses did not know themselves, but which they had only heard about, and which they presumed after having been made to believe them by persuasion. The individual cases in which objections are to be raised on these lines have been dealt with in the closing brief.

The charges advanced against the defendant Karl Brandt include medical experiments on human beings and euthanasia. In both cases the defendant is charged with having committed crimes against humanity.

The press comments on the proceedings, anticipating the sentence and publishing articles about base characters and depravity. Pamphlets with striking titles appear.

On the other hand the Tribunal will make itself acquainted with the literature collected by the defense as evidence. If one reads this literature one loses one’s self-confidence and cannot conclude without admitting that these are problems which persons not considered criminals tried to solve before the defendants. These are problems of the community. The individual may make suggestions for their solution, but the decision is the task of the community and therefore of the state. The question is how great a sacrifice may the state demand in the interest of the community? This decision is for the state alone.

How the state decides depends on its free discretion, and finds its limit only in the rebellion of its citizens. In obeying the orders of his state, the defendant Karl Brandt did no wrong. If sentence is passed against him, it would be a political sentence against the state and the ideology it represents.

One can condemn the defendant Karl Brandt only by imposing on him the duty of rebellion and the duty of having a different ideology to his environment.

It is contended that the state finds its limits in the eternal basic elements of law, which are said to be so clear that anyone could discern their violation as a crime, and that loyalty to the state beyond these limits is therefore a crime. One forgets that eternal law, the law of nature, is but a guiding principle for the state and the legislator and not a counter-code of law which the subject might use as a support against the state. It is emphasized that no other state had made such decisions up to now. This is true only to a certain extent. It is no proof, however, that such decisions were not necessary and admissible now. There is no prohibition against daring to progress.

The progress of medical science opened up the problem of experiments on human beings already in the past century, and eventually made it ripe for decision. It is not the first time that a state has adopted a certain attitude with regard to euthanasia with a change of ideology.

Only the statesmen decide what is to be done in the interests of the community, and they have never hesitated to issue such a decision whenever they deemed it necessary in the interest of their people. Thereupon their rules and orders were carried through under the authority of the state, which is the basis of society.

Inquisition, witch trials, and revolutionary tribunals have existed in the name of the state and eternal justice, and the executive participants did not consider themselves criminals but servants of their community. They would have been killed if they had stood up against what was believed to be newly discovered eternal justice. What is the subject to do if the orders of the state exceed the customary limits which the individual himself took for inviolable according to tradition.

What did the airman think who dropped the first atomic bomb on Hiroshima? Did he consider himself a criminal? What did the statesmen think who ordered this atomic bomb to be used. We know from the history of this event that the motive was patriotism, based on the harsh necessity of sacrificing hundreds of thousands to save their own soldiers’ lives. This motive was stronger than the prohibition of the Hague Convention, under which belligerents have no unlimited right in the choice of methods for inflicting damage on the enemy.

“My cause is just and my quarrel honorable,” says the king. And Shakespeare’s soldier answers him: “That’s more than we know.” Another soldier adds: “Ay, or more than we should seek after; for we know enough if we know we are the king’s subjects; if his cause be wrong, our obedience to the king wipes the crime out of us.”

It is the hard necessity of the state on which the defense for Karl Brandt is based against the charge of having performed criminal experiments on human beings.

Here also—in addition to the care for the population—the lives of soldiers were at stake, soldiers who had to be protected from death and epidemics. In Professor Bickenbach’s experiment, the issue was the lives of women and children who without 45 million gas masks would have been as unprotected against the expected gas attack as the Japanese were against the atomic bomb. Biological warfare was imminent, even praised abroad as cheaper and more effective than the atomic bomb.

Is it really against the law and all political morals if the state in such a situation provides for the expected emergency and orders the necessary medical experiments to be performed on its own citizens? As applied to foreigners such procedure is limited in principle. In my closing brief I have discussed the exceptions.

What is to be done is decided not by the physician but by the political leader. Even the expert Dr. Ivy had to grant him the fundamental authority.

The question is why, with the legal position so clear, a man like Keitel refused to have such experiments carried out in the Wehrmacht, and why some of the defendants themselves try to disprove any connection with the experiments. The answer is that a measure may be as unavoidable as war and yet be abhorred in the same way.

Unlike Professor Ivy, these men certainly considered these experiments an evil, and their desire was not to become involved in them personally, if possible, and not to allow troops to participate in them who should not be burdened with such questions and who had no insight into the necessity of the measures to be taken. In spite of everything, Germany was not yet so “communized” that all private feelings in the individual had disappeared.

The prosecution opposes to this necessity the condition of absolute voluntariness.

It was a surprise to hear from the expert Professor Ivy that in the penitentiaries many hundreds of volunteers were pressing for admission to experiments, and that more volunteered than could be used. I do not want to dispose of this phenomenon with irony and sarcasm. There may be people who realize that the community has the right to ask them for a sacrifice. Their feeling of justice may tell them that insistence on humanity has its limits. If humanity means the appeal to the strong not to forget the weak in the abundance of might and wealth, the weak should also make their contribution when all are in need.

But what if in the emergency of war the convicts, and those declared to be unworthy to serve in the armed forces, refuse to accept such a sacrifice voluntarily, and only prove an asocial burden to state and community and bring about the downfall of the community? Is not compulsion by the state then admissible as an additional expiation?

The prosecution says “No”. According to this human rights demand the downfall of human beings.

But there is a mixture of voluntariness and compulsory expiation, “purchased voluntariness.” Here the experimental subject does not make a sacrifice out of conviction for the good of the community but for his own good. The subject gives his consent because he is to receive money, cigarettes, a mitigation of punishment, etc. There may be isolated cases of this nature where the person is really a volunteer, but as a rule it is not so.

If one compares the actual risk with the advantage granted, one cannot admit the consent of these “voluntary prisoners” as legal, in spite of all the protective forms they have to sign, for these can only have been obtained by taking advantage of inexperience, imprudence, or distress.

Looking through medical literature, one cannot escape the growing conviction that the word “volunteer”, where it appears at all, is used only as a word of protection and camouflage; it is hardly ever missing since the struggle over this problem became acute.

I will touch only briefly on what I have explained in detail in my closing brief. No one will contend that human beings really allowed themselves to be infected voluntarily with venereal disease; this has nowhere been stated explicitly in literature. Cholera and plague are also not minor inconveniences one is likely to undergo voluntarily for a trifle in the interest of science. Above all, it is not customary to hand over children for experimental purposes, and I cannot believe that in the 13 experiments carried out on a total of 223 children, as stated in Document Karl Brandt 117, Karl Brandt Exhibit 103, the mothers gave their consent. Would not the mothers have deserved the praise of the scientist for the sacrifice they trustfully made in the interest of science, praise which is otherwise liberally granted to real volunteers in reports on experiments?

Is it not likely to have been similar to the experiments carried out by Professor McCance? (Karl Brandt 93, Karl Brandt Ex. 29.) The German authorities who condemn the defendants in a particularly violent form have no objection to raise here against the order to hand over weakling children to a research commission for experimental purposes. The questionnaires which the Tribunal approved for me in order to get further information about this matter have not been answered as the higher authorities did not give permission for such statements to be made. This silence says enough; it is proof of what is supposed to be legal today in the line of “voluntariness”.

It is repeatedly shown that the experiments for which no consent was given were permitted with the full knowledge of the government authorities. It is further shown that these experiments were published in professional literature without meeting any objection, and that they were even accepted by the public without concern as a normal phenomenon when reports about them appeared in popular magazines.

This happens at a time when the same press is stigmatizing as crimes against humanity the German experiments which were necessary in the interests of the state. Voluntariness is a fiction; the emergency of the state hard reality.

In all countries experiments on human beings have been performed by doctors, certainly not because they took pleasure in killing or tormenting, but only at the instigation and under the protection of their state, and in accordance with their own conviction of the necessity for these experiments in the struggle for the existence of the people.

The German doctor who acted in conformity with the German regulations can no more be punished than the American doctor who complied with the requests of his state in the way which is customary there.

Justice is indivisible.

To what extent is the defendant Karl Brandt implicated in the medical experiments?

The prosecution says he is implicated in almost all the experiments and refers to his position and his connections. They state that he was the highest Reich authority in the medical spheres; there, however, they are misled by an error in translation, for Karl Brandt only had the powers, regulated in a general way, of an “Oberste Reichsbehoerde” [Supreme Reich Authority], and the practice of those powers was restricted to special cases.

This is apparent from the three known decrees and from the explanation thereof given by 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 a “Differential”. 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 that, under these circumstances, 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 by the “new master”.

Consequently, Karl Brandt’s position was not such as to justify the conclusion drawn by the prosecution as to his general knowledge. There was no official channel by which everything was bound 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, and so on. 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 first of all striking that the defendant Karl Brandt, who is supposed to have been the highest authority, appears only very rarely.

There are three so-called troop experiments: the testing of drinking water, concentrated food, and an ointment for burns.

Further, three medical experiments are connected with the defendant Karl Brandt. The hepatitis experiments, which he is said to have suggested, were not carried out. While that research was continued during the following years, Karl Brandt, who is said to have sponsored it particularly, is mentioned by none of the numerous witnesses and experts, and his name is not mentioned in any document. Is it not, therefore, a plausible explanation that Grawitz confused the names?

The second case is the request to hand over 10 prisoners for two days for an experiment not named. This cannot refer to a real medical experiment, for such an experiment cannot be carried out in such a short time with the necessary tests and observations. The speedy return of the experimental subjects indicates that the experiment was not dangerous.

Finally, the defendant Karl Brandt is connected with the phosgene experiments by Bickenbach, which caused the death of four Germans sentenced to death. But precisely here Bickenbach’s affidavit shows that the defendant Karl Brandt was outside the whole framework of the experiment in Himmler’s sphere, and that he was merely approached to mediate. The order came from Himmler. The experiments must have seemed innocuous to the defendant Karl Brandt since Bickenbach wanted to carry them out on himself.

On the other hand, there was the state emergency and the enormous importance of the discovery that the taking of a few urotropin tablets might give the ardently desired protection to all against the expected gas attack and, as the result of the experiment shows, actually did so.

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 decided on 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 about which he did not know himself.

The defendant Karl Brandt is further charged with not having protested in one case when he heard about deaths caused by experiments on persons sentenced to death 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 only be connected with plans and enterprises as long as they have not been concluded.

Now the prosecution has introduced in its closing brief a new charge holding 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 crime against humanity committed by negligence cannot exist.

Therefore, it will be sufficient to emphasize that the alleged negligence depends on the existence of a duty of supervision and the right to give orders through other agencies. In every state the spheres of competence are separated, and it is not possible for everyone to interfere in everything on the basis that everyone is responsible for everything.

The prosecution says that the defendant Karl Brandt ought to have used his influence and availed himself of his intimate relations with 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. Until now nobody has been held criminally responsible for the conduct of a superior or a friend; the question of criminal law, however, is the only one the Tribunal has to consider. As a matter of fact this close relationship 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 given commissions which removed him further and further 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 hearing on the charges advanced against him.

If one sums up everything relating to the medical experiments and follows to a large extent the charges of the prosecution, it is an established fact that it is not shown that the defendant Karl Brandt participated in any way in experiments on prisoners of war and foreigners, or that he was cognizant of them. Therefore, no war crime or crime against humanity has been committed, and consequently punishment under Law No. 10 is excluded. I refer in this connection to the legal arguments in my closing brief.

The second problem is euthanasia.

The authorization of 1 September 1939 was issued before the period of the medical experiments, at a time when the defendant Karl Brandt was still closely attached to the Fuehrer’s headquarters and to Hitler as an accompanying physician.

In my closing brief I have explained in detail that the defendant Karl Brandt did not participate in the Action 14 f 13, with the “special treatment” of prisoners in concentration camps, occurrences which were given the name of euthanasia only here in the trial.

Neither did the defendant Karl Brandt take any part in the extermination of Jews in Auschwitz, which again has nothing in common with the idea of euthanasia.

I have further shown that the so-called “wild euthanasia”, which was carried out simultaneously with and immediately after legal euthanasia, was not instigated by Karl Brandt. The stopping of euthanasia in August 1941 has been proved, and therefore that was the end of the defendant Karl Brandt’s duties; for what would have been the meaning of this cessation if, after it, increased activity was to set in? The contacts of Karl Brandt after the cessation have been clarified as being the consequence of his activities connected with evacuation for air protection. Where the name of the defendant Karl Brandt is mentioned otherwise, it obviously serves only as means of information for uninformed people who never saw or heard anything of him themselves.

I shall deal here with euthanasia only to the extent that it is officially dealt with under the ordinance of 1 September 1939. Concerning the “Reich committee”, I refer to my closing brief.

The presentation of evidence has established that the defendant Karl Brandt actually had no “administrative and medical office” from which the whole organization might have been administered. On the contrary, it is a fact that Bouhler declared himself solely responsible for the procedure; this is testified to by unequivocal documents.

Nor has any regulation or instruction become known which was issued by Karl Brandt. Not a single document was signed by him. He made no speeches and conducted no discussions.

But what did he do and what was his duty?

His duty was not to carry out euthanasia; he was only to be informed in special cases in order to be able to report to Hitler. This was in conformity with the existing conditions—his presence at and simultaneous attachment to the Fuehrer’s headquarters, and to Hitler.

Only once was Karl Brandt seen active, and that is in the negotiations with Pastor von Bodelschwingh, which led to the result, amazing for us, that the defendant Karl Brandt won Bodelschwingh’s sympathy, and after the collapse the latter said in a radio interview that Brandt was an idealist but not a criminal.

But the defendant Karl Brandt took note of interrogation forms, he inspected a registrar’s office, and he co-signed the authority for physicians to execute euthanasia.

What could the defendant Karl Brandt learn from the forms?

The prosecution thinks that Jews and foreigners were to be affected in the first instance. The affidavit by the director of the Jewish lunatic asylum, in which all the insane Jews of Germany were concentrated, proves that this was not the case.

The prosecution says that all persons unfit for work were to be killed as “useless eaters”. But it is a fact that even work-houses were requested to give information only about cases of really grave insanity.

What did the defendant Karl Brandt know about the procedure?

He knew that the authorization which was issued was not an order given to the doctor, but only conferred on him the right to act on his own responsibility after the most careful consideration of the patient’s condition. This was a clause inserted in the ordinance of 1 September 1939 on Karl Brandt’s initiative.

The defendant Karl Brandt knew that the specialists, whom he did not know, were chosen by the Ministry of the Interior, and that the experts were eminent men in their special spheres.

The defendant Karl Brandt also knew that the authorities concerned saw no reason to object to the execution of the measure, and that even the chief jurists of the Reich declared the legal foundations to be irreproachable, after having been informed of the facts.

Within this framework the defendant Karl Brandt approved of official euthanasia and supported it.

But the prosecution even calls euthanasia a thousand-fold murder. In their opinion there was no formal law, and it is alleged that the expert Dr. Lammers confirmed this.

Yes, but he also stated that even an informal ordinance was valid. Even an order issued by the Fuehrer had the force of law, as can be clearly seen from the indisputable effects of such orders, in particular in relation to foreigners.

But for the defendant Karl Brandt it is of no importance whether the ordinance of 1 September 1939 was actually valid or not; the only important thing is that he had reason to believe it was valid and that he could rely on this opinion.

German courts have already dealt with cases of the practice of euthanasia; but these cases occurred after the official procedure had been stopped, as at Hadamar, or after persons had been killed who could never have come under the powers conferred by the ordinance, or other crimes were committed.

It should be observed that these sentences always confirm the base motives of the offenders. On the other hand, these courts were concerned with the question of public law only to the extent that they confirm that no formal law was available. In one case the court restricted itself to information given by a member of the prosecution staff in the trial before the International Military Tribunal.

The real objections to euthanasia are not based on a formal point of view, but rather on the same reasons which are advanced against the admissibility of the medical experiments.

Even an insane person of the lowest grade may not be killed it is said. No human being may presume to kill another human being.

But the right to kill in war is accepted in international law, and public law allows the suppression of a revolt by violence.

What prevents the state from ordering killing in the sphere of euthanasia too?

The answer is that there is no motive which might justify an action of this kind.

The economic motive of eliminating “useless eaters” is certainly not sufficient for such measures. Such a motive was never upheld by the defendant Karl Brandt; it was apparently mentioned by others as an accompanying contingency and later taken up by counter propaganda.

The defendant Karl Brandt considered the motive of pity for the patient to be the decisive one. This motive is tacitly accepted for euthanasia on the deathbed, and doctors in all countries increasingly acknowledge it.

In former times the courts were repeatedly concerned with killings committed out of pity, and in sensational trials, juries found offenders not guilty who freed their nearest relatives from the torment of life.

Who would not have the desire to die while in good health rather than to be forced by all the resources of medical science to continue life degraded to an animal’s existence! Only misguided civilization keeps such beings alive; in the normal struggle for existence Nature is more charitable.

But the legislator has hitherto refrained from giving authority to kill in such cases. But he can solve the problem if he wants to. The reasons for his restraint are exactly those which led in this case to the disguising of those measures and to the secrecy observed. There is the fear of base intrigues concerning inheritance, the mental burden of the relatives, and so on. The individual does not want to bear this burden, nor is he able to do so. It can be taken over only by the state, which is independent of the desires of those concerned.

That such is the will of the great majority of those who really come into touch with these problems was shown by the result of the inquiry conducted by Professor Meltzer, which has been offered in evidence. It was carried out by him many years ago in order to obtain an argument against euthanasia and its principal supporters, Binding and Hoche. He obtained the reverse of what he had himself expected as an expert.

But I see a third motive which unconsciously plays an important part; it is the idea of sacrifice.

A lunatic may cause the mental and economic decay of a family and also ruin it morally.

If healthy human beings make great sacrifices for the community and lay down their lives by order of the state, the insane person, if he could arouse himself mentally and make a decision, would choose a similar sacrifice for himself.

Why should not the state be allowed to enact this sacrifice in his case and impose on him what he would want to do himself?

Is the state to be forbidden to carry out such euthanasia until the whole world is a hospital, while the creatures of nature keep unblemished through what is believed to be the brutality of Nature?

The decision as to whether such an order given by the state is admissible or not depends on the conception of the social life of mankind and is, therefore, a political decision.

Neither the defendant Karl Brandt nor anyone else who participated in legalized euthanasia would ever have killed a human being on his own authority, and in the German sentences passed the blameless former life of the persons stigmatized as mass-murderers is always emphasized.

This is a warning to be cautious. Did they really commit brutalities, or were they sentenced only because they were not in a position to swim against the tide of times and to oppose it with their own judgment?

A Christian believing in dogma will turn away in pity from this way of thinking. But if the order to use euthanasia to the desired limited extent was really in such contradiction to the commandment of God that everyone could realize it, then it is incomprehensible why Hitler, who never withdrew from the church, was not excommunicated.

This must remove the burden of guilt which one now wants to pile up. Then humanity would have clearly realized at the time that in this devilish struggle man cannot prevail for God stands for Justice.

If there are offenders there are many co-offenders, and one understands Pastor Niemoeller saying: “We are all guilty.”

This is a moral or a political guilt, but cannot be shifted to a single person as criminal guilt.

I have thus shown the fundamental lines along which the actions of the defendant Karl Brandt have to be judged.

The primary consideration for the judgment of this Tribunal is that no prisoners of war or foreigners were submitted to euthanasia with the knowledge or the desire of the defendant Karl Brandt.

Thus the defendant Karl Brandt cannot be punished under Law No. 10 on this count either. What happened between Germans is not subject to the decision of this Tribunal.

Finally, the defendant Karl Brandt is also charged with having been a member of the SS, an organization which has been declared criminal. Evidence to show that the defendant Karl Brandt knew of a criminal aim of this organization and approved of it must be brought by the prosecution. A reference to the general assertions in these proceedings is not sufficient proof, for precisely here the prosecution cannot prevail with their assertions in regard to Karl Brandt.

As to the details, I refer to the statements made in my closing brief.

The fact that the defendant Karl Brandt was the only member of the SS who at the same time retained his position as a medical officer in the army shows that his honorary rank in the SS was really only a formality, and that he was no true member of this organization.

When the defendant Karl Brandt testified here that he wore the uniform of the SS with pride, this only shows that he, like the majority of the SS men, knew nothing about the criminal aims. In judging the organization of the SS, the International Military Tribunal was aware only of a small part of the whole, looking, so to speak, through a keyhole into a dark corner.

Nor could the defendant Karl Brandt have any personal knowledge of Himmler’s secrets, for Himmler rejected him personally, as is shown by a number of affidavits. Since the defendant Karl Brandt could not obtain information even in his own sphere of medicine, how is he to have obtained knowledge of other matters?

I do not want to repeat the affidavits which give information about the basic attitude of the defendant Karl Brandt and show that he adopted an attitude which was incompatible with the mentality supposed to be typical of the SS. In this connection I merely refer to the statements made by Pastor Bodelschwingh, Dr. Gerstenmaier, Meyer-Bockhoff, Philipp Prince of Hesse, and others.

If I, as the defense counsel, consider Karl Brandt’s conduct as a whole and see the wounds he has received in the struggle of life, I must acknowledge that he is a man and not a criminal.

For the Tribunal’s decision, however, the only conclusive fact is that the defendant Karl Brandt did not disturb the circle of international law, for he committed no war crimes and consequently no crimes against humanity. I, therefore, ask that defendant Karl Brandt be acquitted.


[31] Final plea is recorded in mimeographed transcript, 14 July 47, pp. 10797-10817.

[32] United States vs. Friedrich Flick et al. See vol. VI.


XI. FINAL STATEMENTS OF THE DEFENDANTS,
19 JULY 1947

A. Final Statement of Defendant Karl Brandt[33]

There is a word which seems so simple—order; and how colossal are its implications. How immeasurable are the conflicts which hide behind the word obey. Both affected me, obey and order, and both imply responsibility. I am a doctor and on my conscience lies the responsibility of being responsible for men and for life. Quite dispassionately the prosecution has brought the charge of crime and murder and they have raised the question of my guilt. It would have no weight if friends and patients were to shield me and speak well of me, saying I had helped and I had healed. There would be many examples of my actions during danger and my readiness to help. All that is now useless. As far as I am concerned I shall not evade these charges. But the attempt to vindicate myself as a man is my duty towards all who believe in me personally, who trusted in me and who relied upon me as a man as well as a doctor and a superior.

No matter how I was faced with the problem, I have never regarded human experiments as a matter of course, not even when no danger was entailed. But I affirm the necessity for them on grounds of reason. I know that opposition will arise. I know things that disturb the conscience of a medical man, and I know the inner distress that afflicts one when ethics of every form are decided by an order or obedience.

It is immaterial for the experiment whether it is done with or against the will of the person concerned. For the individual the event seems senseless, just as senseless as my actions as a doctor seem when isolated. The sense lies much deeper than that. Can I, as an individual, detach myself from the community? Can I remain outside and do without it? Could I, as a part of this community, evade it by saying I want to live in this community, but I don’t want to make any sacrifices for it, either of body or soul? I want to keep a clear conscience. Let them see how they can get along. And yet we, that community and I, are somehow identical.

Thus I must suffer these contradictions and bear the consequences, even if they remain incomprehensible. I must bear them as my lot in life, which allocates to me its tasks. The meaning is the motive—devotion to the community. If on its account I am guilty, then on its account I will be answerable.

There was war. In war, efforts are all alike. Its sacrifices affect us all. They were incumbent upon me. But are those sacrifices my crime? Did I tread on the precepts of humanity and despise them? Did I pass over human beings and their lives as if they were nothing? Men will point at me and cry “euthanasia”, and falsely, “the useless”, “the incapable”, “the worthless”. But what actually happened? Did not Pastor Bodelschwingh, in the middle of his work at Bethel last year, say that I was an idealist and not a criminal? How could he say that?

Here I am, subject of the most frightful charges, as if I had not only been a doctor, but also a man without heart or conscience. Do you think that it was a pleasure to me to receive the order to permit euthanasia? For 15 years I had toiled at the sickbed and every patient was to me like a brother. I worried about every sick child as if it had been my own. My personal lot was a heavy one. Is that guilt?

Was it not my first thought to limit the scope of euthanasia? Did I not, the moment I was included, try to find a limit and demand a most searching report on the incurables? Were not the appointed professors of the universities there? Who could there be who was better qualified? But I do not want to speak of these questions and of their execution. I am defending myself against the charge of inhuman conduct and base intentions. In the face of these charges I fight for my right to humane treatment! I know how complicated this problem is. With the utmost fervor I have tortured myself again and again, but no philosophy or other wisdom helped me here. There was the decree and on it there was my name. It is no good saying that I could have feigned sickness. I do not live this life of mine in order to evade fate if I meet it. And thus I assented to euthanasia. I fully realize the problem; it is as old as mankind, but it is not a crime against man nor against humanity. It is pity for the incurable, literally. Here I cannot believe like a clergyman or think as a jurist. I am a doctor and I see the law of nature as being the law of reason. In my heart there is love of mankind, and so it is in my conscience. That is why I am a doctor!

When I talked at the time to Pastor Bodelschwingh, the only serious admonisher I knew personally, it seemed at first as if our thoughts were far apart; but the longer we talked and the more we came into the open, the closer and the greater became our mutual understanding. At that time we were not concerned with words. It was a struggle and a search far beyond the human sphere. When the old Pastor Bodelschwingh left me after many hours and we shook hands, his last words were: “That was the hardest struggle of my life.” For him as well as for me that struggle remained; and the problem remained too.

If I were to say today that I wish this problem had never come upon me with its convulsive drama, that would be nothing but superficiality in order to make me feel more comfortable in myself. But I am living in these times and I see that they are full of antitheses. Somewhere we all must make a stand. I am fully conscious that when I said “Yes” to euthanasia I did so with the deepest conviction, just as it is my conviction today, that it was right. Death can mean deliverance. Death is life—just as much as birth. It was never meant to be murder. I bear a burden, but it is not the burden of crime. I bear this burden of mine, though with a heavy heart, as my responsibility. I stand before it, and before my conscience, as a man and as a doctor.

 

B. Final Statement of Defendant Handloser[34]

During my first interrogations here in Nuernberg, in August 1946, the interrogator declared to me:

First, you have been the Chief of the Army Medical Service. Whether or not you knew of inadmissible experiments does not matter here. As the Chief, you are responsible for everything.

Secondly, do not make the excuse that among other nations the same or similar things have happened. We are not concerned with that here. The Germans are under indictment, not the others.

Thirdly, do not appeal to your witnesses. They, of course, will testify in your favor. We have our witnesses, and we rely upon them.

Those were the guiding principles of the prosecution up to the last day of these proceedings. They have remained incomprehensible to me, because I always believed a criminal to be a man who did wrong, and because I was of the opinion that even the prosecution endeavored to be objective, at least after the end of the presentation of evidence. The final plea by the prosecution, however, has shown me that I made a mistake. The speech by the prosecution did not take into account the material submitted in evidence, but it was a summarized repetition of one-sided statements by the prosecution without taking into account that which was submitted in the course of the presentation of evidence in my case.

I am quite convinced that the high Tribunal has gained a true impression of my activity and of my attitude. Just as I have tried throughout my entire life to fulfill the tasks allotted to me by fate according to the best of my capacity and in the full knowledge of my responsibility, so have I also tried to stand this most serious task before this Court with the aid of the strongest weapon which I possess—that is the truth.

If there is anything which could console me for the mental suffering of the last months, it is the consciousness of knowing that before this Court, before the German people, and before the people of the world, it has been made clear that the serious general charges of the prosecution against the Medical Corps of the German Armed Forces have been proved to be without any foundation.

It can be seen how unjust these charges were by the fact that no charges have been raised or any proceedings initiated against a single leading doctor of the German Armed Forces in combat or at home. As the last Medical Inspector of the Army, and as Chief of the Medical Service of the Armed Forces of Germany, I think with pride of all the medical officers to whose untiring devotion countless wounded and sick patients of this dreadful war owe their lives and cure and their possibilities of existence. Never and nowhere were the losses of an army medical corps greater than those among the medical officers of the German Armed Forces in carrying out their duties.

More than 150 years ago, the motto and guiding principle created for German military doctors and their successors was “Scientiae, Humanitati, Patriae” (For Science, Humanity, and Fatherland). Like the medical officers in their entirety I also have remained true to that guiding principle in thought and in deed. Realizing the outcome of the events of these recent times, may the joint endeavors of all the nations succeed in avoiding in future the immeasurable misfortune of war, the dreadful side of which nobody knows better than the military doctor.

 

C. Final Statement of Defendant Rostock[35]

I have nothing to add to the pertinent statements by my defense counsel, Dr. Pribilla, regarding the individual points of the indictment in this trial; but with regard to the general position of German medical science during this war, there are a few words, which I would like to say from this dock.

During my direct examination I have already stated why I, as the Chief of the so-called “Science and Research” department undertook to work for medical science as late as 1943 and 1944. At that time the problem was to avoid, or at least to minimize, the great and acute danger of teaching and research, and with that Germany’s universities, becoming completely destroyed. When this had been prevented at the very last moment, there arose the task and the duty of improving the means and the possibilities of basic research which had been more and more restricted in the course of the war, and through dwindling resources research in Germany would have come to a standstill. Due to the chaotic development of the last year of the war, success was comparatively small. There were, however, some results and there were a few things which were saved after the end of the war.

Today through the evidence produced in this trial, I know the reasons which paralyzed the work at the time. It was the striving for power on the part of certain organizations which used the effective support of certain executive departments of the Third Reich who held unrestricted power. It was the principle of totalitarianism which these organizations followed particularly in the case of what they called the “university science”. It was there, however, that we had founded the tradition of German science recognized the world over. In contrast to that, their aim, as shown in some of the testimonies given in this trial and some of the documents submitted, was to found a “politically directed science” of their own. That was the reason why my personal efforts and those of the health and medical services, which I have referred to in this trial, did not achieve complete success. Today, at the end of this trial, that is now clear to me. At that time, in the year 1944, we did not know of this masterly camouflaged and, therefore, so very dangerous opponent to that branch of science with which I myself had grown up.

Throughout my life I have never worked for one form of a state or another, or for any political party in Germany, but simply and solely for my patients and for medical science.

 

D. Final Statement of Defendant Schroeder[36]

It is very difficult for a defendant to find the right final words here. In methodical, detailed work throughout the last months, the defense has tried to rebut the charges of the prosecution.

When now the prosecution states in its final plea that details do not matter so much, but that the entire complex of questions has to be considered as a whole, that one has to look at matters as at a bundle of sticks, not as individual branches and twigs of the bundle. If, furthermore, the prosecution refers to a sentence pronounced in the Far East by an American Military Court, by which a Japanese general and military commander was sentenced only because, as a commander, he bore the responsibility for all the acts of his troops, regardless of whether he ordered them, knew of them, approved of them, or did not even know of them—if, gentlemen of the Tribunal, these principles are decisive for proceedings, then I have to ask, why bother at all to start proceedings of that kind, to prepare them, and to carry them out? Those decisions could be made much more quickly.

What can I, as a defendant, bring against these arguments? That can be said in a few words: myself, my work, my acts as a doctor and a soldier in 35 years of service. Not the craving for glory and honor was the purport of my life’s work, but the firm intention to put my entire capacity, my full knowledge, into the service of my beloved Fatherland; to help the soldier, as a physician, to heal the wounds caused by wartime and peacetime service, both as a physician for the individual, as well as a medical officer for the mass of troops which were in my care.

That was the aim and object of my work. I do not believe that I have deviated from that path. My eyes always looked towards the final goal: to help and to heal.

 

E. Final Statement of Defendant Genzken[37]

During my testimony I stated before the Tribunal that I took no part in the types of experiments of which I am accused. I have nothing to add to what my defense counsel Dr. Merkel has said. I have striven to lead a decent life as a doctor and as a soldier. If my fatherly concern for my 2,500 doctors and 30,000 men of the Medical Service of the Waffen SS was mentioned here in this courtroom, it is nevertheless my duty to speak from this place on behalf of those men who, in the majority, were decent and brave doctors and medical attendants. I am proud to have been their leader, a leader of those who sacrificed their lives and blood with unceasing fervor to help me in building up the organization of the Medical Service of the Waffen SS, and to overcome the tremendous losses among the ranks of our comrades at the front.

The soldiers of the Waffen SS have proved to history—in the focal points of uncounted battles during an uneven struggle—that they could rank among the finest troops on this earth as far as training, efficiency, readiness of sacrifice, soldierly valor, and contempt of death were concerned. Actions of modern warfare have presented to some extent a picture of murder and horror on both sides. Who dares to raise his head before God and gainsay that?

The men of the Waffen SS went as vanquished into captivity, out of unimaginable physical and mental war distress. That captivity was not free of bloodshed, ill-treatment and degradation of various kinds. To the men of the Waffen SS there was added to the weight of such captivity the frightful realization of the fact that their supreme commander, Himmler, had misused their cloak of honor and deceived them, that they had been cheated and then deserted by him. These decent men of the front Waffen SS certainly did not deserve that fate, the fate of being branded as members of a criminal organization.

My request and my wish is that our former opponents should realize the honest idealism of these victims, do justice to it, and give them back belief in justice.

 

F. Final Statement of Defendant Gebhardt[38]

I wish to thank the high Tribunal for having granted me an opportunity, in the witness box, to describe my personal position in 1942 in such detail.

The historical situation at that time placed me in a totalitarian state which, in turn, placed itself between the individual and the universe. Virtues in the service of the state were paramount virtues. Beyond that I do not know anywhere where the intellect was not debased as a tool for war. Everywhere, in some way values and solutions were put into the service of the war. And here again, in the intellectual field, the first step is the decisive one. I may be permitted to recall that in the war of nerves, it was propaganda with and for “medical preparations” which caused the first step, the order to examine the question of sulfanilamides.

In my final statement today may I be permitted to describe my entire attitude. In doing so, I may perhaps utilize the most important of the four American freedoms, that is to say the freedom of speech, until the very end in such a way that I will refrain from any denunciation or from incriminating others.

Without exaggerating the importance of my own person, a physician can only be measured according to his conception of medical science. Basically, I was neither a cold technical specialist nor a pure scientist. I believe that I have always tried, for example when carrying out surgical experiments, to see every disease as a human condition of suffering. I did not look on my task as something to serve my own advantage, or as a cheap gesture of theoretical pity, but as a personal active support to the trembling existence of the suffering patient. My goal as a physician was not so much purely technical therapy for the individual patient, as therapeutical care for the particularly underprivileged group of the poor, the children, the cripples, the neurotics.

I am anxious that it should be believed that it was not due to moral baseness nor to the selfish arrogance of the scientist that I came into contact with experiments on human beings. On the contrary, during the entire period in question I had experiments in my field of research carried out on animals. It was only because I was the competent responsible surgical expert that I was informed about the imminent experiments on human beings in my field of surgery, which had been ordered by the state authorities. After the order had been given, it was no longer a question of stopping these experiments, but the problem was the method of their execution.

My problems as an expert consisted of the following: For one, the experiments that had been ordered had to be of practical scientific value, for the purpose of testing immunization to protect thousands of injured and sick. On the other hand, I considered humane safety measures for the experimental subjects most important. The main point for me was never the purpose and the object of the experiments, but the manner in which they were carried out. To realize that in a humane way I did not remain aloof and restrict myself to theoretical instruction in the field of surgery, but I myself took part, with my clinic and with all its safety measures.

I hope that this will show that in carrying out experiments I tried with the best of intentions to act primarily in the interest of the experimental subjects. We did not take advantage of the unlimited opportunities given us by Himmler, that is to say, the surgical experiments were not followed by others. I believe that as far as was possible at that chaotic period I fulfilled my duty as an expert, because these experiments did not increase in the field of surgery in spite of the crescendo of the catastrophic policy. My desire was to help and not to give a bad example.

In seeing my responsibility in this way I, of course, made a decision for myself. I hope that hitherto I have always faced criticism, even from foreign countries, without any secrecy, but also without any feeling of guilt for my activities as an expert.

Through these activities, however, as a military physician, not through my own initiative, I was brought into contact with concentration camps. I can understand how heavily that deadly shadow must lie upon anyone who was ever active there. In the ghostly phenomenon of that sphere, which at that time was unknown to me as well, we can now in retrospect begin to realize the frightfulness of the negative ideology of extermination becoming combined secretly with the negative selection of the guards. Only from the documents of the international trial have we been able to see definitely that of the 35,000 guard troops, only 6,000 were SS men who were unfit for combat. The rest were scum, conscripts, foreigners, etc., who with the greatest injustice and to our bitter shame were given the same Waffen SS uniform as we wore at the front. As head of a well-known clinic, known for its measures of safety, in the interest of the experimental subjects, within the framework of my duty as an expert as I saw it, I got in touch with concentration camp doctors. As far as it was at all possible I tried to exclude that atmosphere from my sphere of work. That my counter-actions went beyond purely clinical safety measures for the experimental subjects may, I think, be seen from the following fact: Of the several thousand foreign inmates of this concentration camp—among whom, as we were told here, there were at least seven hundred Polish women—only 200 were turned over to the Red Cross at the end of the war. Of these two-hundred, however, sixty were my experimental subjects, as was proved.

Just as I have tried to clarify my actions as a doctor and to explain my good intentions and possibilities for influence, so my final thought should be devoted to self-criticism, above all as regards on my moral obligation.

In a parody on the words of Heinrich Heine we see today that: “Just to have been an SS man is fate in itself”. Although I believe and hope that in that terrible confusion between the decent Waffen SS and the executive organization, I did my duty as a specialist, an officer, and a human being, I still feel bound to make every form of reparation for this confusion. My possibilities for doing that of course are limited.

Without seeking sensation I offered to undergo an experiment on myself as proved, and that without any surgical safety measures, as soon as the first opportunity arose. My responsibility for the execution of the experiments carried out with good intention, and especially for those who were my subordinates, I have emphasized. I have a further criticism and responsibility, which I spoke of not only now in the dim light of my own defense but already in May 1945 on the day when Himmler released us from our oath and from our orders, and he himself left his post without reserve. It was my endeavor with others to prevent any illegal continuation of an SS conception, and for that purpose to take the burden off the shoulders of our credulous youth by making the SS generals responsible.

Today as a private individual I can only repeat what I am ready to do, at least as far as my former professional standing is concerned.

Where, in spite of my earnest endeavors, reproach and guilt seem to cloud the picture in the sphere for which I was responsible, may the consequences affect me in such a way that I may make the path easier for the younger men who, believing in me, also joined the SS as surgeons. I believe that this pile of rubble, Germany, with its wasted biological material, cannot afford to let these fine young doctors perish in camps and in other inactivity. Also I know every measure which would make the work easier for the old German universities and their respected teachers.

I have summarized my point of view in order to help avoid possible mistakes. From unwholesome social conditions it is a pathological and deceptive escape, then as well as today—here and everywhere, to unite and combine spiritual with economic and political concepts. It is a disastrous error to confuse the organized unanimity of voices with harmony. Destructive criticism only brings intolerant lack of cooperation, which interrupts all cohesion. The private as well as the public conscience cannot be subjugated to any official virtue, nor to any temporal moral principles. It can only find its place within a God-given order.

In the spirit of “earthly constructive pessimism”, as I wrote before the war, in this alone consideration for the painful reality of this social catastrophe seems to be found.

My last sentence is to express our personal gratitude to Dr. Seidl who has stood by the side of my colleagues and myself so conscientiously and with such human kindness.

 

G. Final Statement of Defendant Blome[39]

I have testified quite openly before this high Tribunal that particularly up to the outbreak of war I was a confirmed National Socialist and follower. I have also explained why I became a Party member in 1931, and that because political conditions in Germany at the time were moving with giant strides towards a final conflict between Communism and National Socialism, as a result of the economic chaos and the impotence of the German governments after 1919. I have said that I joined the National Socialist Party because I rejected the dictatorial form of the Communist system. In my book “The Doctor in the Struggle”, which was put to me by the prosecution here in cross-examination, I also explained why I went over to National Socialism. This book, however, which was published in 1941, at the time of Germany’s greatest victories, clearly shows my repudiation of the Second World War, to which I do not refer with a single word, not even a hint, although my experience in the First World War takes up considerable space in this book.

After the First World War, Germany was in great difficulties. The situation became progressively worse and more unbearable, when at the turn of the thirties the economic crisis spread throughout the world and even seized hold of the United States. At that time I realized that in such hard times a nation which is drifting toward despair seeks a leader and follows him in blind confidence as soon as he can show great successes.

That in the case of Hitler these were only sham successes or temporary successes the German people realized only gradually, only step by step, and only at a time when it was too late to shake off the dictatorship again by their own strength. For years the German people were deceived by the leaders as to the true situation. With deliberately lying propaganda, Hitler’s governmental system until the last moment kept proclaiming final victory to the German people, even in the winter of 1944, and even in the spring of 1945, when the Reich cabinet and the Party leaders long knew that a terrible collapse was imminent. This governmental system thus irresponsibly imposed on the exhausted body of the German nation still further useless losses of life and property.

Since the collapse, particularly since the International War Crimes Trial at Nuernberg, we see clearly that this frivolous method of betrayal of their own people was a fitting part of the systematical murder of foreign peoples and races by the millions.

I believe that there is no other example in history of the boundless confidence of a people in their leader being so boundlessly misused and disappointed.

The German people were blinded in their faith in their Fuehrer, in a leader who constantly pretended to them and the world a love of peace, a humane character, a selfless care for the people. Thus the German people became the victim of a political gambler. His unrestrained supreme power apparently knew only the choice between ruling and destroying. Hitler’s ambition, as I know and judge it today, had only one aim: At any price to go down in history as a great man. Hitler achieved this goal 100 percent. He went down in history as one of the greatest tyrants of all time, tremendous in his mania for ruling, tremendous in his brutality in the achievement of his ends, not hesitating even at the murder of his best friends, his oldest followers, if they were in his way.

Relying upon the blind confidence of his deceived people, Hitler created a system in which all individualism, all sentiment of freedom, all personal opinion of the citizens was nipped in the bud and turned into slavery.

He succeeded in this with the aid of a very small circle of closest associates, who had fallen under his hypnotic influence, in part perhaps themselves deceived by this man, but who became willing tools in his hand for the enslavement of the German people and the decimation of whole nations.

Under the fatal influence of a clever, deliberately lying propaganda, against which even other countries were as good as powerless, the German people and the German doctor, too, believed that they were following an honorable leader and serving a good cause; they all considered it the highest moral duty not to desert the Fatherland in times of emergency and particularly in wartime, but to do their duty to the very extreme, especially since in this war the life or death of the nation was at issue.

During the times of total warfare, the times of air raids, hunger, and the danger of epidemics, working conditions for the German doctor were terribly hard; so difficult that today one can hardly imagine what German doctors accomplished in those days for friend and foe alike. Whether we twenty doctors here in this dock are accused justly or unjustly, it is a great injustice in any case to defame German doctors in general in public, as is constantly being done. As former Deputy Reich Physicians’ Leader I know conditions in the German medical profession during the Hitler period, and I must say even today that in its totality the German medical profession was efficient, decent, industrious, and humane. Their willingness to work under the most difficult conditions that one can imagine, their unselfishness to the utmost, their courage and their helpfulness were exemplary. Beyond all praise were in particular the numerous old doctors who were already living in retirement and who, in spite of their great age, returned to the service of the sick, and those innumerable women doctors who, married, and often the mothers of many children, deserted their household duties for the difficult work of medical practice during wartime.

The whole German people knew this, in whose midst and under whose eyes the German medical professions spent the years of distress and fright, and who, therefore, will continue to place unlimited confidence in German doctors.

Of myself I can say that I have always, particularly during the Hitler period, devoted all my efforts to keeping the medical profession at a high scientific and ethical level and to developing it. And I found in this effort the full support of all German doctors, including the most famous scientists and chief physicians of medical institutions. Well-known scholars throughout the world supported this work, which was above [unintelligible] parties and enjoyed an international reputation.

But in the course of this trial it has become clearer to me day by day just how criminal the Hitler system was, to which I sacrificed in good faith many years of my life, and I am so deeply moved inside me that I must confess to myself: For years I held a responsible position in a system which today I must curse just as much as I curse all those who forced upon the German people such a tyranny of crime and debasement of man.

It was my mistake that I stayed in the post where fate had placed me and in which I had hoped to be able to do good for our people and my profession. It would often have been simpler to give up this post when I began to realize, step by step, the depravity of the Third Reich. If I did not do so, but stayed at my post until the bitter end, I did this because I considered it my duty, especially in the hard times of total war, and because again and again I succeeded either in protecting the medical profession from harm or in preventing crimes against humanity. Even today I would have to consider it cowardice if I had left my post in 1941 or 1942 only to bring myself to safety or to evade threatened responsibility.

I feel myself free of the guilt of ever having committed or furthered crimes against humanity.

 

H. Final Statement of Defendant Mrugowsky[40]

My attorney and I made every effort during my examination on the witness stand and by means of the considerable evidence which we submitted to refute the charges which have been raised against me, just as much as we tried to assist in ascertaining the truth.

The outcome of the trial and the evidence against me is in the hands of the Tribunal and the closing brief, and in the reply to comprehensive documentation of the prosecution. I am firmly confident on the basis of this trial that this high Tribunal will examine the evidence objectively and carefully. Thus in my final speech I merely would like to draw your attention to the fact that my life in its entirety was solely devoted to my profession and my science. It was my aim, not by any means to represent some political ideology, but to go to the university and to reach the position of a free and independent doctor and scientist.

The prosecution has charged us, the defendants, with destructive tendencies which were supposed to have been the causes of our actions. I know that I am free of such tendencies. They never occurred to my collaborators and myself at any time. In the Waffen SS too, the troops of which were among the bravest divisions of the German Armed Forces, such tendencies never played a part.

As far as my own concepts of the ethical duties of the doctor are concerned, they are contained in my book regarding medical ethics, and I believe always to have acted according to the principles of that book and lived according to them. My life, my actions, and my aims were clean. That is why now that at the end of this trial I can declare myself free of personal guilt.

 

I. Final Statement of Rudolf Brandt[41]

Now, after this trial has reached its final stage, my conscience is confronted with the question of whether I consider myself guilty or innocent. My responsibility, in my opinion, is to be tested by a threefold question:

First, did I participate in the experiments directly and actively?

Second, did I at least have any knowledge of the criminal character of the experiments on human beings?

Third, what, if I had known, could have been my attitude towards Himmler?

What my basic opinion is of crimes against humanity I did not only declare myself on the witness stand but this has also been testified to by a very competent foreign witness, a Swedish medical counsellor, Felix Koersten.

Before this Tribunal and in the full knowledge of what I say I confess that I abhor—and did abhor—any crime against humanity in the years past and during my activity as a so-called personal Referent of Himmler. But I also frankly declare that perhaps during the course of these last years my way of thinking was not always in my conscious mind as it is today. But I never participated in a crime against humanity knowingly, intentionally, or with premeditation when passing on the letters, orders, etc., which Himmler issued to third persons, and the result of which was the commission of cruelties on human beings.

I am confident that from the evidence and from the content of the various defense affidavits the Tribunal will be convinced that in truth my real sphere of power did in no way correspond to the face value of my official position. My real sphere of power was extremely small. It did not exceed that of a well-paid stenographer in the office of an influential man in Germany. If the Tribunal were to start from this fact, it would approach reality much closer than the prosecution did in its indictment.

I got into contact with Himmler when I was a young, immature man who came from a family in modest circumstances. Nothing else but my ability as a stenographer, which I had obtained through my industry, was the reason for that, and this was my position until the last days of the German collapse, in spite of promotions in rank. At that time I was only too glad to get that job because it enabled me to support my parents financially.

When I started work with Himmler, I got, without intermediate stages, into an agency, the chief of which was to combine, among other functions, the highest executive powers in his hands a short time afterwards.

I am convinced that I would not sit here under a grave indictment if I had had the opportunity to continue my education, if I had made a start in a subordinate agency, and had risen little by little into a higher position. Unfortunately, I have always been a lone wolf as long as I lived, and I never was fortunate enough to have an older friend who could have corrected my political inexperience and my gullibility.

If, however, through all those years, I represented Himmler’s ideology, I did so only because I did not know the criminal part of Himmler’s character. Since I lived, so to speak, divorced from the world around me and was only devoted to my more than plentiful work, I only learned after the collapse what stupendous crimes are to be booked on Himmler’s account.

The evidence has shown that I neither knew a concentration camp nor had anything to do with concentration camps in my official capacity; nor had any influence on the system of the concentration camps, their administration and management, nor on the treatment of prisoners. For this reason I didn’t know the measure of the tragedies which were enacted there.

Those matters, into which I had sufficient insight during my restless daily activities to permit me to distinguish between good and evil, were on a plane where they need not shun the light of sun.

I do not deny that some of the documents submitted here by the prosecution went through my hands, but I do deny—and I pray the Tribunal may believe me—that I knew the contents of the documents particularly the reports and therefore the essential core of the human experiments.

I know that appearances are against me. Only these external appearances led the prosecution to indict me in this trial and to pass their comment on me during their closing speech, without penetrating to the bottom of matters. This way they arrived at a completely wrong appraisal which does not correspond to the facts and overrates my position and my activities.

These appearances which speak against me will be dispelled as soon as my real position will be considered in which I found myself as [administrative officer] so-called personal Referent of Himmler for many years. On the witness stand I testified to the truth, which has been confirmed by witnesses who knew the real facts from their own experience.

It does not run counter to experience that among thousands of incoming and outgoing items of mail—that is, hundreds of thousands during the course of the years—there should be an insignificantly small number of documents which a personal Referent on the orders of his chief, passes on to third persons without knowing their contents more closely, the more so if they concern matters which have nothing to do with the normal duties of the personal Referent.

I believe that an American tribunal will know how to appraise the foregoing, though I am rather afraid that the situation as it existed in Germany during the years before the collapse and prevailed in high government agencies will never really be brought home to American judges.

Therefore, I refuse to discuss again my position at that time and the ignorance of criminal experiments on human beings which was the consequence thereof. In this respect I agree with my defense counsel. Neither need I fear Professor Ivy’s statement who declared that even a layman must have been outraged by reading the reports of Rascher, because the fact that the layman should have read the passages of the reports wherefrom the obvious violation of human dignity is evident was, as a matter of fact, the natural prerequisite for Professor Ivy’s opinion, and that prerequisite did not exist in my case.

In accordance with the truth I repeat what I have said in the witness stand, that I had a general knowledge of experiments on human beings, I can no longer say when and on what particular opportunity I gained that knowledge. But this fact alone does not deserve death, because I never had the feeling that I had participated in such crimes by my activity in the personal Referat [administrative office].

Such a knowing participation demands that the personal Referent knows the contents and the import of Himmler’s letters, orders, etc., and passes them on in spite of this knowledge of the contents and their import. I just said that appearances are against me, but I believe I did prove that I did not possess that knowledge. I pray the Tribunal to follow the line of this evidence and, I think, this is not asking too much since the experience of everyday life speaks in my favor.

The various affidavits which I have submitted and which were the subject of excited argument have found their explanation. In some points I have erred and I have tried to correct my errors. I did not want to speak an untruth knowingly which might be detrimental or unfavorable to a third person. I ask the Tribunal not to forget that I was in a very low general condition when I signed these affidavits. Only a few months previously I weighed only forty-four kilograms; consequently my mental power was reduced to a minimum.

During my activities which stretched over many years I exclusively acted on the express orders of Himmler without ever making a decision on my own initiative. I may take it that this fact has fully been proved.

The question what attitude I should have assumed had I known the details of inhuman experiments I can only answer in a hypothetical way. Had I had an approximate knowledge, as I have it today, I would have struggled against passing on such an order by virtue of my general view on questions of humanity. Since, however, I did not have that knowledge it could not come to any opposition on my part. I ask that consideration be given to the fact that during all those years, I regarded matters which were in my field from my own point of view, and tried to live up to my own ideals. I saw my duty in carrying out my task faithfully and in the conduct of a clean, personal life. I always strove not to cause any damage to any human being, but to understand the situation of any person in need of help, and then to help him as I myself would have wished to be helped or treated had I been in his position. I remind you of the statement of the witness Meiner, on 21 March 1947.

The fact that my signatures are on the documents which have been submitted by the prosecution has moved me deeply because my entire view of humanity and the principles of humanity is quite opposed to that. What I understand by humanity, also begins to apply to the small details of life also for me.

In spite of my good intentions, and this I say in answer to a question put in the beginning—in spite of my good intentions I was drawn into a guilt, I see it as a guilt into which human beings can be involved by tragic circumstances without any intention on their part. But the recognition of this guilt was sufficient to shake severely my mental and moral balance.

 

J. Final Statement of Defendant Poppendick[42]

I joined the SS at a time not to commit crimes, but because a number of my friends whom I knew to be idealists were members of the SS. Their membership caused me to join. That I thereby became a member of a criminal organization was unimaginable for me at that time, just as it is incomprehensible for me today.

My activity in the Main Race and Settlement Office was devoted to the problem of the family, an activity which in view of the destructive tendencies during the period of the First World War seemed important to me. If my expectations as a physician were disappointed in more than one point, at least I considered myself justified to hope that in the end this activity would have positive results. The intentions were always toward a constructive policy for the good of the family. Never did I have anything to do with negative population policies, such as the sterilization program of the state. The assertion of the prosecution that positive and negative population policies belong together as the two sides of one and the same program, is erroneous.

Then there were purely organizational reasons which brought about my direct subordination under the office of that man whose name today has such an inhuman sound—I mean Grawitz. The impression which the prosecution has rendered of my activity and position in Grawitz’ office is not in accordance with the facts, in spite of some features which seem to support the assertions made by the prosecution.

As for medical experiments on inmates—experiments on human beings were nothing surprising to me, nor anything new. I knew that experiments were carried out in clinics. I knew that the modern achievements of medical science had not been brought about without sacrifices. However, I do not recall that in experiments in clinics the voluntariness of the person to be experimented on was an absolute requirement, which now seems to be taken as a matter of fact, according to the discussions in this trial. I knew furthermore, that some scientific problems can only be solved by experiments in series with conditions remaining constant, and that therefore soldiers and particularly soldiers in camps are used for experiments in all countries. Under these circumstances it did not appear surprising to me that during the war, scientists also carried out experiments in series in concentration camps. I did not have the least cause to assume that these scientists in the camps would go beyond the scope of that which otherwise everywhere in the world of science was customary. What I knew about medical experiments in the SS was, in my opinion, as little connected with criminal matters as those experiments of which I knew from my clinical experience before 1933.

In March of this year a young doctor, Dr. Mitscherlich, in a very one-sided way, published material for an indictment under the already prejudiced title, “The Dictates of Contempt for Human Life”. Of the problematic there was little in this book. The basis for a judgment and a conviction were clearly given. During the very last days, however, the chief of Dr. Mitscherlich, a well-known Professor from Heidelberg, Weizsaecker, published a study on the fundamental questions belonging to this subject under the title “Euthanasia and Experiments on Human Beings”, which he submitted to the defendants. But here now fortunately we find an entirely different language. The problem itself becomes obvious. If one reads this booklet then the extent of the problem with its complications becomes clear.

The oath of Hippocrates, according to Weizsaecker, has nothing to do with the problem. Weizsaecker applies entirely different ethical norms. Rightly, medicine of today as a whole is studied, not only the German medicine under Hitler. It shows that experts who consider themselves competent even today are only in the middle of their endeavor to clarify the problems at the basis, that being the first requirement for their solution.

Before this trial all of these matters were no problems for me. I did not know of any transgressions. Moreover, I was always convinced that anything which came to my knowledge about experiments on human beings in clinics of the state before 1933, and within the scope of the SS in later years, were conscientious efforts of serious scientists to the good of mankind.

The ethical foundation of these matters also seemed to be there until this trial. Therefore, after sincere examination of my conscience, I cannot find any feelings of guilt and expect with a clear and peaceful conscience the verdict of the Tribunal.

 

K. Final Statement of Defendant Sievers[43]

Your Honors, in his opening plea, my defense counsel already stated quite openly and frankly that all events were going to be presented with which I was in any way connected, and in this hour which is so important to me, I can state to the best of my conscience that when I furnished my defense counsel with information, and during my own examination on the witness stand, I always spoke the full truth.

I have, in fact, had the satisfaction to hear my testimony confirmed by a witness for the prosecution. During my examination as a witness on the stand, I said quite truthfully that the experimental subjects to whom I had talked in connection with the last experiment in Natzweiler had confirmed to me that they were voluntary subjects. Witness Nales, witness for the prosecution, confirmed my testimony during his examination on the 30th of June in this courtroom.

With regard to the charge of participation in the malaria experiments, I have stated that I had nothing to do with malaria experiments. Witness Vieweg, called by the prosecution, confirmed this testimony of mine, as also did witness Stoehr.

I testified that the two experimented subjects whom I met in connection with the altitude experiments, in reply to a question by me, confirmed specifically that they had volunteered. Witness Neff of the prosecution confirmed this voluntary status of the witnesses. Likewise Dr. Romberg during his direct examination stated on the strength of his own knowledge that my testimony was correct. The only experimental subject whom I met in connection with the typhus experiments upon my definite question regarding the voluntariness of his testimony, confirmed that this was so. My testimony was also confirmed through the affidavit of a former prisoner, and witness, Grunzenhuber, contained in my second document book.

The prosecution believed that they had to charge me with having placed myself at the disposal of the IMT on the behalf of the SS. This was rather a peculiar statement considering my own defense in this trial. I explained when I was on the stand that without my own initiative, in fact against my own will, the defense counsel for the SS called me in order to use me as a witness. Attorney Pelckmann, then defense counsel of the SS, has confirmed the correctness of my statements in an affidavit. According to that, I immediately informed Pelckmann at the time in writing regarding my former membership in the resistance movement against the National Socialist regime and told him I was not a suitable witness. At the same time I presented attorney Pelckmann with a copy of my letter, in which I placed myself at the disposal of the International Military Tribunal as a witness as early as 20 December 1945, as the IMT record shows. I have stated my regrets on this same witness stand, that my preparedness to aid justice and to help in prosecuting past crimes was not accepted and that considerable evidence was thus destroyed.

As early as August last year, I furnished the prosecution with a report about my activities in the resistance movement, indicating again my willingness. This was passed over, however, when I stated that I was not prepared to sign affidavits which were not completely true. I openly and frankly stated at that point that I did not understand this action. I had to do this, and I could do it because I had been looking for truth and right at the risk of my life, undaunted, even during the time of tyranny. Was one now to be a collaborator in methods which I thought had passed with the National Socialist regime; and which, as remains my firm conviction, would never lead to a true pacification of this world such as we all desire? I am mentioning this with regret and only because I have always claimed that I myself, and my statements, in responsible situations, deserve to be believed. The prosecution did not only feel in a position to doubt my credibility, but they even consented to call me a liar during their argument, against their better knowledge and their better conscience. Consequently, I had to draw your attention to the testimony of various witnesses which confirmed, in full, my testimony on the stand in these complicated matters. I can truly be satisfied that it was not up to me, but to the prosecution’s own witnesses, to contradict the incorrect statements made against me. History will honor such action, and judge the persistent attempt to stick to preconceived ideas. There is no blessing connected with it. I am only sorry for those who are misguided by false ideas. My firm conviction that this high Tribunal will fully believe my testimony during my defense is based on these facts.

In this connection, with reference to the experiences which I have just described, I am forced to say how on the other hand it calmed and strengthened me, and gave me confidence to see with what wisdom, calm, and patience this high Tribunal stood above matters and disclosed a conduct of trial in which one could feel sheltered; all my friends, who fought in the secret resistance movement with me and repeatedly attended this trial in the audience, share these sentiments with me.

I have explained to you, your Honors, for what reasons I was in immediate, direct contact with the NSDAP and the SS. I have told you how I always tried to prevent the Ahnenerbe from becoming involved in medical research. This attempt failed, due to the ambitious attitude of Himmler. Only on the strength of my own feelings had I to find an attitude with regard to this new question of experiments on human beings. I did not approve of them, and I attempted to take the consequence, which could only be that I immediately resigned from my post as the Reich manager of the Ahnenerbe. I think the testimony of the witness Hielscher, in this stand, and the affidavits from witness Deutelmoser, witness Dellmann, witness Schmitz, and others prove beyond doubt that I had the true intention of resigning from the Ahnenerbe. And these witnesses have also clearly testified why I didn’t do so, not because of personal ambition, not for reasons of comfort, or for what other low reasons might be attributed to me in this point. It was due to the persistent urging on the part of my political friends that I remained, in order to serve further the task which had taken me to the NSDAP and the SS. Inwardly I rejected contact with human experiments even as I refused to be a follower of the NSDAP and of the ideology they represented. Outwardly, I had to live up to the name of a National Socialist if I was to hold on to the political ideal to which I had devoted myself since 1929 and not endanger it. In his affidavit, witness Niebhausen, who was the most important member in the circle of the secret German resistance, and who has acted on behalf of Dr. Kempner too, and who is obviously a personality beyond reproach, says that his illegal activity which continued for five years would have been quite impossible without my assistance. I do not, indeed, know what the prosecution is prepared to recognize as being a resistance against the Nazi regime, if not even such activities as these. It is not necessary to relate again all the details which have been testified to in this courtroom.

That in true recognition of the consequences which might be daily expected for myself and my family I devoted myself to resistance, continued in it undaunted, and never abandoned it, is now the only reason why I find myself in this dock. For that reason, I look forward to the judgment of this Tribunal with confidence, due to my conviction that I have lived for a good cause and acted on it, on behalf of something which—then as today—filled me with true belief.

 

L. Final Statement of Defendant Rose[44]

Mr. President, may it please the Tribunal, the scientists who are among the defendants in this trial are confronted with a principal difficulty, the fact that purely scientific questions have been made political, ideological questions by the prosecution. In the opening speech by the Chief of Counsel, General Taylor, the political and ideological nature of the indictment has been expressed as clearly as possible.

A subject of the personal charges against myself is my attitude toward experiments on human beings ordered by the state and carried out by other German scientists in the field of typhus and malaria. Works of that nature have nothing to do with politics or with ideology, but they serve the good of humanity, and the same problems and necessities can be seen independently of any political ideology everywhere, where the same dangers of epidemics have to be combated.

Just as Claus Schilling, in his malaria research, had to make experiments with human beings, before him and after him malaria scientists of various nations had to carry out experiments on human beings. Just as Haagen, on his own initiative, but with the approval of competent authorities of the state, tested the value of a new, living typhus vaccine, before him that was done in the course of fighting plague by your great compatriot, Richard B. Strong, when he experimented on natives of the Philippines, who were not American citizens, with the approval of your government.

Just as Dr. Ding, on the instruction of the highest and decisive authorities of the German civilian health administration, tested the value of the typhus vaccine on humans in times of greatest typhus danger, others have done so before him in less pressing emergencies, sometimes in agreement with, sometimes upon the instruction of their governments.

From the witness stand I testified about the actual role which I played in regard to the charges of human experiments with malaria and typhus. And I have explained from the witness stand the legal evaluation of my actions, and they have been submitted to you by my defense counsel, Dr. Fritz. I need not add anything to it. But, as a matter of principle, I stated my attitude towards the experiments on human beings in medical research, not first of all in this courtroom, but also when the National Socialist German Government was at the height of its limitless power. At that time I was cut short by a man, Professor Schreiber, who about a year ago in this very courtroom, claimed to be a defender of medical ethics.

The fact is undoubted that human experiments, which were exactly the same as those, the participation in which I am unjustly charged with, have been carried out in other countries, above all, in the United States which has indicted me. That has led the prosecution to place the center of gravity of its charges upon the outside conditions of the persons put at my disposal for experiments by the German authorities. In that connection the question of whether they were voluntary was put into the foreground. I shall not discuss the question as to what extent the doctor who is charged with the experiments is responsible for these external, formal questions, at least a doctor who was so far removed from the experiments themselves as I was. But in connection with the principal question of subjects being volunteers, I have to make a few statements. A trial of this kind presents probably the most unsuitable atmosphere to discuss questions of medical ethics. But since these questions have been raised here, they have to be answered. Everyone who, as a scientist, has an insight into the history of dangerous medical experiments, knows with certainty the following fact. Aside from the self-experiments of doctors, which represent a very small minority of such experiments, the extent to which subjects are volunteers is often deceptive. At the very best they amount to self-deceit on the part of the physician who conducts the experiment, but very frequently to a deliberate misleading of the public. In the majority of such cases, if we ethically examine facts, we find an exploitation of the ignorance, the frivolity, the economic distress, or other emergency on the part of the experimental subjects. I may only refer to the example which was presented to the Tribunal by Dr. Ivy when he presented the forms for the American malaria experiments.

You yourselves, gentlemen of the Tribunal, are in a position to examine whether, on the basis of the information contained in these forms, individuals of the average education of an inmate of a prison can form a sufficiently clear opinion of the risks of an experiment made with pernicious malaria. These facts will be confirmed by any sincere and decent scientist in a personal conversation, though he would not like to make such a statement in public. That I myself am, on principle, an opponent of the idea of dangerous experiments on human beings is known to you gentlemen of the Tribunal.

The state, however, or any human community which, in the interest of the well-being of the entire community, did not want to forego the experiments on human beings, only bases itself on ethical principles as long as it openly assumes the full responsibility which arises therefrom, and imposes sacrifices on enemies of society to atone for their crimes and does not choose the method of apparent voluntary submission, which imposes the risk of the experiment on the experimental subjects, who are not in a position to foresee the possible consequences.

The prosecutor in his plea criticized the preponderance of affidavits during the presentation of evidence on the part of the defense. The difficulties which exist for a defendant in prison in the Germany of today to acquire other documents are almost prohibitive. In order to give a few examples: When the malaria experiments of Schilling were discussed, the prosecution, among other material, submitted to the Tribunal an excerpt from the well-known Dachau sentence concerning the statements contained therein about the number of victims in these experiments. I have stated in the witness box that I would rather sit here as a defendant than put my signature on the opinion which would confirm these statements. How right I was in making that statement can be seen from a letter by Professor Allenby of the University of London which, unfortunately, has only now been received by my defense counsel, in which he termed the statement that 300 experimental subjects had died, a grotesque untruth. My defense counsel in his final plea has quoted the passage of that letter.

The prosecution at that time when the excerpt of the Dachau sentence was submitted, promised that the entire files of the Dachau trial would be put at our disposal. Unfortunately, all my efforts to gain an insight in these files have been in vain.

When State Secretary Dr. Conti during the war was toying with the idea to commission Professor Schilling, who was at that time in Italy, with malaria research in Germany, I, at that time, Chief of the Tropical Medical Department of the Robert Koch Institute, was first of all assigned by the Reich Ministry of the Interior to give an opinion. In this opinion, for reasons which I have explained in the witness box, I rejected Schilling’s plan. Had one followed my advice, the experiments by Schilling in Dachau would never have taken place. In the course of these proceedings I made all efforts to come into the possession of that opinion but in this case also I was unsuccessful, although that opinion in two copies is in the hands of the military government, possibly even in this building.

Also, in vain, I attempted to get the file note, so important for my defense, which I dictated to the witness Block about my conferences with State Secretary Conti and President Gildemeister, after I had gained knowledge about the conduct of the typhus experiments in Buchenwald. What little correspondence I had with Professor Haagen is apparently entirely in the hands of the prosecution. In spite of that, it has been submitted only in part to you. That fact offered an opportunity to the prosecution to interpret passages taken out of the context incorrectly. Unfortunately, I have no opportunity to force anyone to submit the missing documents which would clarify matters in my favor.

To evaluate the work of Haagen, and my defense counsel has pointed that out already, the statement of an unbiased expert would have been of decisive importance. Therefore, I can only regret that the interrogation of the Frenchman Georges Blanc for whom I applied and who has the best knowledge in this field, did not take place, although he had volunteered to appear before this Tribunal as an expert.

Professor Lecrout, Director of the Institute Pasteur in Paris, was frequently in Nuernberg during this trial. After an interview, the prosecution refrained from calling him as an expert witness to clarify some difficult questions resulting from the work of Haagen. I ask the high Tribunal to draw its conclusions from these facts and to assure that the lack of these pieces of evidence should not result in a damage to my interests.

Prosecutor McHaney has explained in his plea that one still had to find that doctor among the defendants who would have subjected himself to such experiments as are covered by the indictment here. I do not feel that that concerns me. Not only from the statement which I have made here before you but also from my case history, which was available to the authorities of the prison long before indictment, it can be seen that not only did I repeatedly offer myself as an experimental subject to test vaccines but that frequently in my official capacity and in my research work I gave myself injections with cholera, typhus, malaria and hepatitis epidemica and that I am still suffering from the consequences.

Finally, Prosecutor McHaney has asserted in his plea that all of those indicted here are guilty of murder, and that includes me too. If the Tribunal were to look at the present problem from this point of view, I would regret having said a single word in my defense. However, if you believe me, that in all actions of mine which have been discussed here, I was only moved by sincere devotion to duty, then I put my fate with confidence into your hands.

 

M. Final Statement of Defendant Ruff[45]

May it please the Tribunal: As far as the written and oral statements of my defense counsel are concerned which deal with the points of the indictment, and as far as my activities as a doctor and scientist are concerned, I have nothing or hardly anything to add. I can only repeat today what I said at the end of my examination when I was on the stand. After detailed inquiry into my conscience, I still today hold the belief that I never sinned against my duty as a man and as a doctor.

 

N. Final Statement of Defendant Brack[46]

Your Honor, I cannot be described as one of the earliest followers of Hitler. In 1929, I joined the NSDAP when more than six million German voters were already backing Hitler. His later successes during the years of peaceful reconstruction consolidated my conviction that he had forever liberated Germany from the misery in which it seemed to have fallen. For all those years I had no reason to have any misgivings with regard to Hitler’s personality. Therefore I also believed in the legality of the euthanasia decree as it emanated directly from the head of the state. The state officials and doctors, competent for me at that time, told me that euthanasia had always been an endeavor of mankind and was morally as well as medically justified. Therefore, I never doubted the legal character of the euthanasia decree.

In this connection, however, I was assigned duties, the extent and importance of which I could not foresee. Neither my training nor my qualifications sufficed for this task. Nobody can deny, however, my good faith in its justification. I frankly admitted what I did in the framework of the euthanasia measures and tried to prove that my collaboration was merely of a subordinate nature and exclusively directed by human aspects. I cannot be made responsible for later actions carried out by other offices and without my knowledge. These were the measures which I deeply regretted, in which the prohibition of the inclusion of foreign nationals and Jews was infringed.

Through my activity in the Fuehrer’s Chancellery, I early became acquainted with the Gestapo terror. The testimonies of my witnesses prove how I fought against them and the concentration camp system. I did so because I felt that I was obliged to help those who suffered from arbitrariness and oppression. I did not do it because I already recognized in it at that time symptoms of a leadership that always and only knew arbitrariness and oppression.

But this is particularly the reason why I was so shocked about the misuse of some of the euthanasia institutions for the Action 14 f 13; this action affected particularly those persons whose detention I considered unjust, and which I therefore opposed. It was only in this courtroom, however, that I learned of this action.

That I did not hate the Jews has been proved by numerous documents. Without hatred of the Jews, however, participation in the extermination of Jews is unthinkable. The measures of suppression to which the Jews were subjected forced me to give them the same assistance within my competence as I accorded to the political persecutees. Thus during the course of the years I helped hundreds of thousands of persons by my activity. Thus only could the sterilization suggestions come into existence. They were nothing but an attempt to prevent the extermination of innumerable Jews.

In spite of all the efforts of my defense counsel, it was impossible to procure the witnesses who could testify to this effect. They preferred to evade their responsibility of serving the truth. I am utterly alone. I must leave it to this high Tribunal to ascertain on the basis of the presented expert scientific opinions that all my proposals were actually so formulated as to show my convictions of their harmlessness, and the impossibility of realizing them.

I must also leave it to the Tribunal to judge whether a man who intended the extermination of the Jews would apply for service with the army, just at the moment when the aim which he is alleged to have pursued was achieved, and the extermination measures had started. Or does it not appear paradoxical to assume that one and the same man should give his approval of the extermination of the Jews, and in fact aid such a program, and, at the same time, save Jews he has never known, such as Georgii, Passow, Meyer, Warburg, and others, from these measures?

I can only emphasize that particularly the sterilization suggestions to Himmler appeared to me to be the last possibility to take any action to save Jewry. Had I been indifferent to the Jewish fate, I would not be accused today. But I also tried in this respect, as was my habit, to give assistance and I am still convinced, that it had at least delaying, if not preventative effect. It is certain that many Jews were in this way saved from destruction. The realization that such proposals should never have been made by me on the strength of my medical knowledge, my capacities, or my position at the time, even to the best of my intention, is something I could not reach until this trial was in progress. My good intention, which was the basis of these proposals, and my good will to help by means of them cannot be denied by anybody, and can in no event be understood as my conscious cooperation in the extermination of the Jews.

 

O. Final Statement of Defendant Romberg[47]

In the course of this trial, I have had full opportunity to speak in my defense. With special gratitude we realize the great opportunity offered to us, of which we took advantage, which was given by the possibility of individually questioning Professor Ivy in this trial. I have seen how the Tribunal itself, by a precise questioning, clarified the facts, and to the statements made by my defense counsel I have nothing to add, because they are the truth.

 

P. Final Statement of Defendant Becker-Freyseng[48]

Mr. President, Gentlemen of the Tribunal: I also was given opportunity to submit all the statements and the evidence required to refute the charges of the indictment. For that I have to thank the Tribunal and my defense counsel, Dr. Tipp. But I have nothing to add to it. For all the irrelevant, spiteful talk with which outside circles believed they had to twist around the objectivity of these proceedings like thorn bushes, the verdict of this Tribunal must be and will be the appropriate answer. I look forward to it with the firm conviction that I never failed in my duty to mankind as a physician and scientist, and as a soldier to my Fatherland.

 

Q. Final Statement of Defendant Weltz[49]

I have nothing to add to the statement made by my defense counsel. I thank Dr. Wille for his efforts made in my defense.

 

R. Final Statement of Defendant Schaefer[50]

May it please the Tribunal, since I consider myself entirely innocent, I have nothing more to add. I ask to be acquitted, if possible, even before the verdict.

 

S. Final Statement of Defendant Hoven[51]

I have nothing to add to Dr. Gawlik’s plea of yesterday. I would at this point like to thank my defense counsel for the considerable help he has given me.

 

T. Final Statement of Defendant Beiglboeck[52]

May it please the Tribunal, the experiments which I conducted, I did not carry out on my own initiative, neither according to the plans of my own, nor spontaneously. The medical part was played with the knowledge and approval of my clinical teacher, and civilian superior for more than ten years, I was a disciple of Eppinger. During those ten years I had come to know and respect his ways of thought and his superior knowledge. My relations to him were based on deep personal gratitude and awe-inspired devotion. If there was anything which he considered right and important, then for psychological reasons alone, it would have been difficult for me to believe the contrary.

The experiments were to solve the problem of saving human life and that had to be approved. It was a military order which compelled me to carry them out in the atmosphere of a concentration camp. I struggled against it, and was inwardly opposed to it, and tried to avoid the task, but I was not successful. So I had to carry it out.

May it please the Tribunal, in your evaluation of this fact, please do not fail to consider that this did not happen in times of peace, nor in a country which granted its citizens individual freedom of decision in all matters, personal and professional, but during the bitter days of a most horrible war. What I carried out, I did in accordance with a plan previously determined and specified. I did not overstep the limits of my task. I had to require of my experimental subjects to undergo hardships; they suffered from thirst with all of its unpleasant sensations, with its physical and mental characteristics. It was in the nature of the experiments, and this could not be avoided. I did not, however, do this without first informing myself by an experiment on my own system of what I expected them to undergo, nor did I expect it of anyone else, unless I was firmly convinced that he undertook it voluntarily. It is not true to say that I might have forced anybody to do it, neither psychologically, by reprisals, nor by threat, nor by force of arms. Many eyewitnesses have agreed that my conduct was never brutal or inhuman towards any of the experimental subjects under my care. Among these witnesses are even some who were brought here to testify against me.

At last, in the final stage of this trial, one experimental subject could be found who thought it appropriate to introduce a dramatic note in an atmosphere artificially created. You will decide how much credibility you will attribute to this witness. Based on a layman’s misinterpretation of nondangerous, indeed harmless medical procedures, combined with the uncertain recollection emotionally presented by more or less distorting and misconstruing my motives, the attempt was made to lend an impression to my experiments and to my own personality.

In contradiction to that, a few others who came from the concentration camp and who loved the truth have painted another picture which reveals that my behavior in the medical sense, as well as from the human point of view, was correct, to say the least. By my experiments, no human life was sacrificed, nor did they result in any lasting damage to their health. I also believe, I have proved that I intervened for the inmates, as far as that was within my power and that I did not consider my experimental subjects as individuals of an inferior type whom I could well afford to ill-treat, for ideological reasons, as has been charged.

For over 15 years as a physician, I always felt the strongest responsibility for those entrusted to my care. Thousands who were my patients will confirm it. My assistants and colleagues have testified to it. I was never directed by any sentiment other than that of a human being and of a physician. The experiments as they were actually conducted never went beyond what can be justified by the physician. I consider myself free of guilt as a physician and as a human being.

 

U. Final Statement of Defendant Pokorny[53]

Your Honors, during this trial I have often asked myself what I should have done at the time in order to record my true motive for the letter I had written to Himmler. But I believe that at the time when I dispatched this letter, I could not do anything else but to talk to the people in whom I had confidence and who I knew would not betray me, and confide in them my true reasons.

If today, this letter, which is against me, may seem objective, then this is a fact with which I must bear, although to the end I must say in correspondence with the truth that selfish reasons were not the cause of my writing this letter, but that letter was written because at the time I had heard facts about Himmler’s plans, and, because at that time in my position, standing lonely and slandered because of my family implications in a small town in Czechoslovakia, I felt that I was able to take the action described.

I retain the hope that you, my judges, will draw your conclusions from my conduct and the situation in which I found myself at the time, and will come to the conviction that the true motive was a different one than that which is objectively shown by this letter, and that you will not sentence me but will believe me in what I have not only told you, my judges, but others previously during my interrogations and what I have told my friends, at a time when this present situation had not arisen, in order to clarify my motives as being true.

With this hope I am looking forward to your judgment, and in that connection I am thinking of my children who, for years now, have lived under the protection of an allied power, and who will not believe that their father, after everything that he has suffered, could possibly have acted as an enemy to human rights.

 

V. Final Statement of Defendant Oberheuser[54]

I have nothing to add to the statements I have made from the witness box under oath. In administering therapeutical care, following established medical principles, as a woman in a difficult position, I did the best I could. Moreover, I fully agree with the statements made by my defense counsel and will refrain, at this late stage of the trial, from making any further statements.

 

W. Final Statement of Defendant Fischer[55]

Your Honors, when this war began I was a young doctor, 27 years of age. My attitude towards my people and my Fatherland took me to the front line as an army doctor. I there joined an armored division, where I remained until I was incapacitated due to the loss of an arm. For only a very brief period, during these years of war, I worked as a medical officer in a military hospital back home. There too, my conception of my duties was directed by the wish to serve my country. During this time of my work at home, I received the order, the execution of which made me a subject of the indictment of this trial.

The order for my participation in the experiments originated from my highest medical and military superior and was passed on to me, as the assistant and first lieutenant, through Professor Gebhardt. Professor Gebhardt was the famous surgeon and much honored creator of Hohenlychen. He was a scientific authority whom I looked up to with reverence and confidence. As a general of the Waffen SS he was my unconditional military superior. I believed him, that I had been earmarked by him to assist in the solution of an urgent medical problem which was to bring help and salvation to hundreds of thousands of wounded soldiers, and which was to be a cure for them; and I believed that this problem would mean a question of life and death to my people who were fighting for their existence. I believed unconditionally that this order had come to me from the head of the state, and that its execution was a necessity for the state. I considered myself first as bound by this order, as were the thousands of soldiers whom I had seen walk to their deaths during my years at the front, following an order by the state. This moving impression from the front bound me doubly, particularly since I had had the privilege during that time of working in a hospital at home. I considered myself, particularly at home, doubly bound like every soldier at the front to obey the order of my Fatherland unconditionally.

What this order demanded from me had been introduced as a method of modern medicine in all civilized countries. I was only concerned in the clinical part of it, and that was taking place just as a course of treatment in the institute of Hohenlychen, or any other clinic. What I did was what was ordered, and I did nothing beyond that order. I believed that I, as a simple citizen, did not have the right to criticize the measures of the state, particularly not at a time in which my country was engaged in a struggle for life and death.

I hope that through my unconditional service at the front and through my two wounds, I have shown that I did not only expect others to make sacrifices at this time, but that I was prepared at any time to sacrifice myself with my life and my health. Within the scope of the order given to me I did what I could, in my limited position as an assistant doctor, for the life of the experimental subjects and for an exact and proper clinical development of the experiment. I never could expect and foresee that deaths would occur. When such fatalities did occur, contrary to all expectation, I was as shaken by that event as I was by the death of a patient in our clinic. After that, the experiments were immediately discontinued, and I went back to the front.

Together with Professor Gebhardt, I reported about these experiments to the German public. Like many other Germans, there are many things which, in retrospect, I see more clearly today and in another light than in the past years. In my young life I have tried to be a faithful son of my people, and that brought me into this present miserable position. I only wanted what was good. In my life I have never followed egotistical aims, and I was never motivated by base instincts. For that reason, I feel free of any guilt inside me. I have acted as a soldier, and as a soldier I am ready to bear the consequences. However, that I was born a German, that is something about which I do not want to complain.


[33] Tr. pp. 11311-11314.

[34] Tr. pp. 11315-11316.

[35] Tr. pp. 11316-11317.

[36] Tr. p. 11318.

[37] Tr. pp. 11318-11319.

[38] Tr. pp. 11319-11324.

[39] Tr. pp. 11325-11328.

[40] Tr. pp. 11328-11329.

[41] Tr. pp. 11330-11335.

[42] Tr. pp. 11335-11338.

[43] Tr. pp. 11338-11342.

[44] Tr. pp. 11342-11347.

[45] Tr. pp. 11347-11348.

[46] Tr. pp. 11348-11351.

[47] Tr. p. 11351.

[48] Tr. p. 11352.

[49] Tr. p. 11352.

[50] Tr. p. 11352.

[51] Tr. p. 11352.

[52] Tr. pp. 11352-11355.

[53] Tr. pp. 11355-11356.

[54] Tr. p. 11356.

[55] Tr. pp. 11356-11358.


XII. JUDGMENT

Military Tribunal I was established on 25 October 1946 under General Orders No. 68 issued by command of the United States Military Government for Germany. It was the first of several military tribunals constituted in the United States Zone of Occupation pursuant to Military Government Ordinance No. 7, for the trial of offenses recognized as crimes by Law No. 10 of the Control Council for Germany.

By the terms of the order which established the Tribunal and designated the undersigned as members thereof, Military Tribunal I was ordered to convene at Nuernberg, Germany, to hear such cases as might be filed by the Chief of Counsel for War Crimes or his duly designated representative.

On 25 October 1946 the Chief of Counsel for War Crimes lodged an indictment against the defendants named in the caption above in the Office of the Secretary General of Military Tribunal at the Palace of Justice, Nuernberg, Germany. A copy of the indictment in the German language was served on each defendant on 5 November 1946. Military Tribunal I arraigned the defendants on 21 November 1946, each defendant entering a plea of “not guilty” to all the charges preferred against him.

The presentation of evidence to sustain the charges contained in the indictment was begun by the prosecution on 9 December 1946. At the conclusion of the prosecution’s case in chief the defendants began the presentation of their evidence. All evidence in the case was concluded on 3 July 1947. During the week beginning 14 July 1947 the Tribunal heard arguments by counsel for the prosecution and defense. The personal statements of the defendants were heard on 19 July 1947 on which date the case was finally concluded.

The trial was conducted in two languages—English and German. It consumed 139 trial days, including 6 days allocated for final arguments and the personal statements of the defendants. During the 133 trial days used for the presentation of evidence 32 witnesses gave oral evidence for the prosecution and 53 witnesses, including the 23 defendants, gave oral evidence for the defense. In addition, the prosecution put in evidence as exhibits a total of 570 affidavits, reports, and documents; the defense put in a total number of 901—making a grand total of 1,471 documents received in evidence.

Copies of all exhibits tendered by the prosecution in their case in chief were furnished in the German language to the defendants prior to the time of the reception of the exhibits in evidence.

Each defendant was represented at the arraignment and trial by counsel of his own selection.

Whenever possible, all applications by defense counsel for the procuring of the personal attendance of persons who made affidavits in behalf of the prosecution were granted and the persons brought to Nuernberg for interrogation or cross-examination by defense counsel. Throughout the trial great latitude in presenting evidence was allowed defense counsel, even to the point at times of receiving in evidence certain matters of but scant probative value.

All of these steps were taken by the Tribunal in order to allow each defendant to present his defense completely, in accordance with the spirit and intent of Military Government Ordinance No. 7 which provides that a defendant shall have the right to be represented by counsel, to cross-examine prosecution witnesses, and to offer in the case all evidence deemed to have probative value.

The evidence has now been submitted, final arguments of counsel have been concluded, and the Tribunal has heard personal statements from each of the defendants. All that remains to be accomplished in the case is the rendition of judgment and the imposition of sentence.

THE JURISDICTION OF THE TRIBUNAL

The jurisdiction and powers of this Tribunal are fixed and determined by Law No. 10 of the Control Council for Germany. The pertinent portions of the Law with which we are concerned provide as follows:

Article II

“1. Each of the following acts is recognized as a crime:


“(b) War Crimes. Atrocities or offenses against persons or property constituting violations of the laws or customs of war, including but not limited to, murder, ill-treatment or deportation to slave labor or for any other purpose, of civilian population from occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity.

“(c) Crimes against Humanity. 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.

“(d) Membership in categories of a criminal group or organization declared criminal by the International Military Tribunal.

“2. Any person without regard to nationality or the capacity in which he acted is deemed to have committed a crime as defined in * * * this Article, if he (a) was a principal or (b) was an accessory to the commission of any such crime or ordered or abetted the same or (c) took a consenting part therein or (d) was connected with plans or enterprises involving its commission or (e) was a member of any organization or group connected with the commission of any such crime * * *.


“4. (a) The official position of any person, whether as Head of State or as a responsible official in a Government Department, does not free him from responsibility for a crime or entitle him to mitigation of punishment.

(b) 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 indictment in the case at bar is filed pursuant to these provisions.

THE CHARGE

The indictment is framed in four counts.

COUNT ONE—The Common Design or Conspiracy. The first count of the indictment charges that the defendants, acting pursuant to a common design, unlawfully, willfully, and knowingly did conspire and agree together to commit war crimes and crimes against humanity, as defined in Control Council Law No. 10.

During the course of the trial the defendants challenged the first count of the indictment, alleging as grounds for their motion the fact that under the basic law the Tribunal did not have jurisdiction to try the crime of conspiracy considered as a separate substantive offense. The motion was set down for argument and duly argued by counsel for the prosecution and the defense. Thereafter, in one of its trial sessions the Tribunal granted the motion. That this judgment may be complete, the ruling made at that time is incorporated in this judgment. The order which was entered on the motion is as follows:

“It is the ruling of this Tribunal that neither the Charter of the International Military Tribunal nor Control Council Law No. 10 has defined conspiracy to commit a war crime or crime against humanity as a separate substantive crime; therefore, this Tribunal has no jurisdiction to try any defendant upon a charge of conspiracy considered as a separate substantive offense.

“Count I of the indictment, in addition to the separate charge of conspiracy, also alleges unlawful participation in the formulation and execution of plans to commit war crimes and crimes against humanity which actually involved the commission of such crimes. We, therefore, cannot properly strike the whole of count I from the indictment, but, insofar as count I charges the commission of the alleged crime of conspiracy as a separate substantive offense, distinct from any war crime or crime against humanity, the Tribunal will disregard that charge.

“This ruling must not be construed as limiting the force or effect of Article 2, paragraph 2 of Control Council Law No. 10, or as denying to either prosecution or defense the right to offer in evidence any facts or circumstances occurring either before or after September 1939, if such facts or circumstances tend to prove or to disprove the commission by any defendant of war crimes or crimes against humanity as defined in Control Council Law No. 10.”

COUNTS TWO AND THREE—War Crimes and Crimes against Humanity. The second and third counts of the indictment charge the commission of war crimes and crimes against humanity. The counts are identical in content, except for the fact that in count two the acts which are made the basis for the charges are alleged to have been committed on “civilians and members of the armed forces [of nations] then at war with the German Reich [* * *] in the exercise of belligerent control”, whereas in count three the criminal acts are alleged to have been committed against “German civilians and nationals of other countries.” With this distinction observed, both counts will be treated as one and discussed together.

Counts two and three allege, in substance, that between September 1939 and April 1945 all of the defendants “were principals in, accessories to, ordered, abetted, took a consenting part in, and were connected with plans and enterprises involving medical experiments without the subjects’ consent * * * in the course of which experiments the defendants committed murders, brutalities, cruelties, tortures, atrocities, and other inhuman acts.” It is averred that “such experiments included, but were not limited to” the following:

“(A) High-Altitude Experiments. From about March 1942 to about August 1942 experiments were conducted at the Dachau concentration camp, for the benefit of the German Air Force, to investigate the limits of human endurance and existence at extremely high altitudes. The experiments were carried out in a low-pressure chamber in which the atmospheric conditions and pressures prevailing at high altitude (up to 68,000 feet) could be duplicated. The experimental subjects were placed in the low-pressure chamber and thereafter the simulated altitude therein was raised. Many victims died as a result of these experiments and others suffered grave injury, torture, and ill-treatment. The defendants Karl Brandt, Handloser, Schroeder, Gebhardt, Rudolf Brandt, Mrugowsky, Poppendick, Sievers, Ruff, Romberg, Becker-Freyseng, and Weltz are charged with special responsibility for and participation in these crimes.

“(B) Freezing Experiments. From about August 1942 to about May 1943 experiments were conducted at the Dachau concentration camp, primarily for the benefit of the German Air Force, to investigate the most effective means of treating persons who had been severely chilled or frozen. In one series of experiments the subjects were forced to remain in a tank of ice water for periods up to 3 hours. Extreme rigor developed in a short time. Numerous victims died in the course of these experiments. After the survivors were severely chilled, re-warming was attempted by various means. In another series of experiments, the subjects were kept naked outdoors for many hours at temperatures below freezing. * * * The defendants Karl Brandt, Handloser, Schroeder, Gebhardt, Rudolf Brandt, Mrugowsky, Poppendick, Sievers, Becker-Freyseng, and Weltz are charged with special responsibility for and participation in these crimes.

“(C) Malaria Experiments. From about February 1942 to about April 1945 experiments were conducted at the Dachau concentration camp in order to investigate immunization for and treatment of malaria. Healthy concentration camp inmates were infected by mosquitoes or by injections of extracts of the mucous glands of mosquitoes. After having contracted malaria the subjects were treated with various drugs to test their relative efficacy. Over 1,000 involuntary subjects were used in these experiments. Many of the victims died and others suffered severe pain and permanent disability. The defendants Karl Brandt, Handloser, Rostock, Gebhardt, Blome, Rudolf Brandt, Mrugowsky, Poppendick, and Sievers are charged with special responsibility for and participation in these crimes.

“(D) Lost (Mustard) Gas Experiments. At various times between September 1939 and April 1945 experiments were conducted at Sachsenhausen, Natzweiler, and other concentration camps for the benefit of the German Armed Forces to investigate the most effective treatment of wounds caused by Lost gas. Lost is a poison gas which is commonly known as mustard gas. Wounds deliberately inflicted on the subjects were infected with Lost. Some of the subjects died as a result of these experiments and others suffered intense pain and injury. The defendants Karl Brandt, Handloser, Blome, Rostock, Gebhardt, Rudolf Brandt, and Sievers are charged with special responsibility for and participation in these crimes.

“(E) Sulfanilamide Experiments. From about July 1942 to about September 1943 experiments to investigate the effectiveness of sulfanilamide were conducted at the Ravensbrueck concentration camp for the benefit of the German Armed Forces. Wounds deliberately inflicted on the experimental subjects were infected with bacteria such as streptococcus, gas gangrene, and tetanus. Circulation of blood was interrupted by tying off blood vessels at both ends of the wound to create a condition similar to that of a battlefield wound. Infection was aggravated by forcing wood shavings and ground glass into the wounds. The infection was treated with sulfanilamide and other drugs to determine their effectiveness. Some subjects died as a result of these experiments and others suffered serious injury and intense agony. The defendants Karl Brandt, Handloser, Rostock, Schroeder, Genzken, Gebhardt, Blome, Rudolf Brandt, Mrugowsky, Poppendick, Becker-Freyseng, Oberheuser, and Fischer are charged with special responsibility for and participation in these crimes.

“(F) Bone, Muscle, and Nerve Regeneration and Bone Transplantation Experiments. From about September 1942 to about December 1943 experiments were conducted at the Ravensbrueck concentration camp, for the benefit of the German Armed Forces, to study bone, muscle, and nerve regeneration, and bone transplantation from one person to another. Sections of bones, muscles, and nerves were removed from the subjects. As a result of these operations, many victims suffered intense agony, mutilation, and permanent disability. The defendants Karl Brandt, Handloser, Rostock, Gebhardt, Rudolf Brandt, Oberheuser, and Fischer are charged with special responsibility for and participation in these crimes.

“(G) Sea-Water Experiments. From about July 1944 to about September 1944 experiments were conducted at the Dachau Concentration camp, for the benefit of the German Air Force and Navy, to study various methods of making sea water drinkable. The subjects were deprived of all food and given only chemically processed sea water. Such experiments caused great pain and suffering and resulted in serious bodily injury to the victims. The defendants Karl Brandt, Handloser, Rostock, Schroeder, Gebhardt, Rudolf Brandt, Mrugowsky, Poppendick, Sievers, Becker-Freyseng, Schaefer, and Beiglboeck are charged with special responsibility for and participation in these crimes.

“(H) Epidemic Jaundice Experiments. From about June 1943 to about January 1945 experiments were conducted at the Sachsenhausen and Natzweiler concentration camps, for the benefit of the German Armed Forces, to investigate the causes of, and inoculations against, epidemic jaundice. Experimental subjects were deliberately infected with epidemic jaundice, some of whom died as a result, and others were caused great pain and suffering. The defendants Karl Brandt, Handloser, Rostock, Schroeder, Gebhardt, Rudolf Brandt, Mrugowsky, Poppendick, Sievers, Rose, and Becker-Freyseng are charged with special responsibility for and participation in these crimes.

“(I) Sterilization Experiments. From about March 1941 to about January 1945 sterilization experiments were conducted at the Auschwitz and Ravensbrueck concentration camps, and other places. The purpose of these experiments was to develop a method of sterilization which would be suitable for sterilizing millions of people with a minimum of time and effort. These experiments were conducted by means of X-ray, surgery, and various drugs. Thousands of victims were sterilized and thereby suffered great mental and physical anguish. The defendants Karl Brandt, Gebhardt, Rudolf Brandt, Mrugowsky, Poppendick, Brack, Pokorny, and Oberheuser are charged with special responsibility for and participation in these crimes.

“(J) Spotted Fever (Fleckfieber)[56] Experiments. From about December 1941 to about February 1945 experiments were conducted at the Buchenwald and Natzweiler concentration camps, for the benefit of the German Armed Forces, to investigate the effectiveness of spotted fever and other vaccines. At Buchenwald, numerous healthy inmates were deliberately infected with spotted fever virus in order to keep the virus alive; over 90 percent of the victims died as a result. Other healthy inmates were used to determine the effectiveness of different spotted fever vaccines and of various chemical substances. In the course of these experiments 75 percent of the selected number of inmates were vaccinated with one of the vaccines or nourished with one of the chemical substances and, after a period of 3 to 4 weeks, were infected with spotted fever germs. The remaining 25 percent were infected without any previous protection in order to compare the effectiveness of the vaccines and the chemical substances. As a result, hundreds of the persons experimented upon died. Experiments with yellow fever, smallpox, typhus, paratyphus A and B, cholera, and diphtheria were also conducted. Similar experiments with like results were conducted at Natzweiler concentration camp. The defendants Karl Brandt, Handloser, Rostock, Schroeder, Genzken, Gebhardt, Rudolf Brandt, Mrugowsky, Poppendick, Sievers, Rose, Becker-Freyseng, and Hoven are charged with special responsibility for and participation in these crimes.

“(K) Experiments with Poison. In or about December 1943 and in or about October 1944 experiments were conducted at the Buchenwald concentration camp to investigate the effect of various poisons upon human beings. The poisons were secretly administered to experimental subjects in their food. The victims died as a result of the poison or were killed immediately in order to permit autopsies. In or about September 1944 experimental subjects were shot with poison bullets and suffered torture and death. The defendants Genzken, Gebhardt, Mrugowsky, and Poppendick are charged with special responsibility for and participation in these crimes.

“(L) Incendiary Bomb Experiments. From about November 1943 to about January 1944 experiments were conducted at the Buchenwald concentration camp to test the effect of various pharmaceutical preparations on phosphorus burns. These burns were inflicted on experimental subjects with phosphorus matter taken from incendiary bombs, and caused severe pain, suffering, and serious bodily injury. The defendants Genzken, Gebhardt, Mrugowsky, and Poppendick are charged with special responsibility for and participation in these crimes.”

In addition to the medical experiments, the nature and purpose of which have been outlined as alleged, certain of the defendants are charged with criminal activities involving murder, torture, and ill-treatment of non-German nationals as follows:

“7. Between June 1943 and September 1944 the defendants Rudolf Brandt and Sievers * * * were principals in, accessories to, ordered, abetted, took a consenting part in, and were connected with plans and enterprises involving the murder of civilians and members of the armed forces of nations then at war with the German Reich and who were in the custody of the German Reich in exercise of belligerent control. One hundred twelve Jews were selected for the purpose of completing a skeleton collection for the Reich University of Strasbourg. Their photographs and anthropological measurements were taken. Then they were killed. Thereafter, comparison tests, anatomical research, studies regarding race, pathological features of the body, form and size of the brain, and other tests were made. The bodies were sent to Strasbourg and defleshed.

“8. Between May 1942 and January 1944[57] the defendants Blome and Rudolf Brandt * * * were principals in, accessories to, ordered, abetted, took a consenting part in, and were connected with plans and enterprises involving the murder and mistreatment of tens of thousands of Polish nationals who were civilians and members of the armed forces of a nation then at war with the German Reich and who were in the custody of the German Reich in exercise of belligerent control. These people were alleged to be infected with incurable tuberculosis. On the ground of insuring the health and welfare of Germans in Poland, many tubercular Poles were ruthlessly exterminated while others were isolated in death camps with inadequate medical facilities.

“9. Between September 1939 and April 1945 the defendants Karl Brandt, Blome, Brack, and Hoven * * * were principals in, accessories to, ordered, abetted, took a consenting part in, and were connected with plans and enterprises involving the execution of 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 nationals of German-occupied countries. This program involved the systematic and secret execution of the aged, insane, incurably ill, of deformed children, and other persons, by gas, lethal injections, and divers other means in nursing homes, hospitals, and asylums. Such persons were regarded as ‘useless eaters’ and a burden to the German war machine. The relatives of these victims were informed that they died from natural causes, such as heart failure. German doctors involved in the ‘euthanasia’ program were also sent to the eastern occupied countries to assist in the mass extermination of Jews.”

Counts two and three of the indictment conclude with the averment that the crimes and atrocities which have been delineated “constitute violations of international conventions * * *, the laws and customs of war, the general principles of criminal law as derived from the criminal laws of all civilized nations, the internal penal laws of the countries in which such crimes were committed, and of Article II of Control Council Law No. 10.”

COUNT FOUR—Membership in Criminal Organization: The fourth count of the indictment alleges that the defendants Karl Brandt, Genzken, Gebhardt, Rudolf Brandt, Mrugowsky, Poppendick, Sievers, Brack, Hoven, and Fischer are guilty of membership in an organization declared to be criminal by the International Military Tribunal, in that each of these named defendants was a member of the SCHUTZSTAFFELN DER NATIONAL SOZIALISTISCHEN DEUTSCHEN ARBEITERPARTEI (commonly known as the SS) after 1 September 1939, in violation of paragraph 1 (d) Article II of Control Council Law No. 10.

Before turning our attention to the evidence in the case we shall state the law announced by the International Military Tribunal with reference to membership in an organization declared criminal by the Tribunal:

“In dealing with the SS the Tribunal includes all persons who had been officially accepted as members of the SS including the members of the Allgemeine SS, members of the Waffen SS, members of the SS Totenkopf Verbaende, and the members of any of the different police forces who were members of the SS. The Tribunal does not include the so-called riding units * * *.

“The Tribunal declares to be criminal within the meaning of the Charter the group composed of those persons who had been officially accepted as members of the SS as enumerated in the preceding paragraph who became or remained members of the organization with knowledge that it was being used for the commission of acts declared criminal by Article 6 of the Charter, or who were personally implicated as members of the organization in the commission of such crimes, excluding, however, those who were drafted into membership by the State in such a way as to give them no choice in the matter, and who had committed no such crimes. The basis of this finding is the participation of the organization in war crimes and crimes against humanity connected with the war; this group declared criminal cannot include, therefore, persons who had ceased to belong to the organizations enumerated in the preceding paragraph prior to 1 September 1939.”

THE PROOF AS TO WAR CRIMES AND CRIMES
AGAINST HUMANITY

Judged by any standard of proof the record clearly shows the commission of war crimes and crimes against humanity substantially as alleged in counts two and three of the indictment. Beginning with the outbreak of World War II criminal medical experiments on non-German nationals, both prisoners of war and civilians, including Jews and “asocial” persons, were carried out on a large scale in Germany and the occupied countries. These experiments were not the isolated and casual acts of individual doctors and scientists working solely on their own responsibility, but were the product of coordinated policy-making and planning at high governmental, military, and Nazi Party levels, conducted as an integral part of the total war effort. They were ordered, sanctioned, permitted, or approved by persons in positions of authority who under all principles of law were under the duty to know about these things and to take steps to terminate or prevent them.

PERMISSIBLE MEDICAL EXPERIMENTS

The great weight of the evidence before us is to the effect that certain types of medical experiments on human beings, when kept within reasonably well-defined bounds, conform to the ethics of the medical profession generally. The protagonists of the practice of human experimentation justify their views on the basis that such experiments yield results for the good of society that are unprocurable by other methods or means of study. All agree, however, that certain basic principles must be observed in order to satisfy moral, ethical and legal concepts:

1. The voluntary consent of the human subject is absolutely essential.

This means that the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, over-reaching, or other ulterior form of constraint or coercion; and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision. This latter element requires that before the acceptance of an affirmative decision by the experimental subject there should be made known to him the nature, duration, and purpose of the experiment; the method and means by which it is to be conducted; all inconveniences and hazards reasonably to be expected; and the effects upon his health or person which may possibly come from his participation in the experiment.

The duty and responsibility for ascertaining the quality of the consent rests upon each individual who initiates, directs or engages in the experiment. It is a personal duty and responsibility which may not be delegated to another with impunity.

2. The experiment should be such as to yield fruitful results for the good of society, unprocurable by other methods or means of study, and not random and unnecessary in nature.

3. The experiment should be so designed and based on the results of animal experimentation and a knowledge of the natural history of the disease or other problem under study that the anticipated results will justify the performance of the experiment.

4. The experiment should be so conducted as to avoid all unnecessary physical and mental suffering and injury.

5. No experiment should be conducted where there is an a priori reason to believe that death or disabling injury will occur; except, perhaps, in those experiments where the experimental physicians also serve as subjects.

6. The degree of risk to be taken should never exceed that determined by the humanitarian importance of the problem to be solved by the experiment.

7. Proper preparations should be made and adequate facilities provided to protect the experimental subject against even remote possibilities of injury, disability, or death.

8. The experiment should be conducted only by scientifically qualified persons. The highest degree of skill and care should be required through all stages of the experiment of those who conduct or engage in the experiment.

9. During the course of the experiment the human subject should be at liberty to bring the experiment to an end if he has reached the physical or mental state where continuation of the experiment seems to him to be impossible.

10. During the course of the experiment the scientist in charge must be prepared to terminate the experiment at any stage, if he has probably cause to believe, in the exercise of the good faith, superior skill and careful judgment required of him that a continuation of the experiment is likely to result in injury, disability, or death to the experimental subject.

Of the ten principles which have been enumerated our judicial concern, of course, is with those requirements which are purely legal in nature—or which at least are so clearly related to matters legal that they assist us in determining criminal culpability and punishment. To go beyond that point would lead us into a field that would be beyond our sphere of competence. However, the point need not be labored. We find from the evidence that in the medical experiments which have been proved, these ten principles were much more frequently honored in their breach than in their observance. Many of the concentration camp inmates who were the victims of these atrocities were citizens of countries other than the German Reich. They were non-German nationals, including Jews and “asocial persons”, both prisoners of war and civilians, who had been imprisoned and forced to submit to these tortures and barbarities without so much as a semblance of trial. In every single instance appearing in the record, subjects were used who did not consent to the experiments; indeed, as to some of the experiments, it is not even contended by the defendants that the subjects occupied the status of volunteers. In no case was the experimental subject at liberty of his own free choice to withdraw from any experiment. In many cases experiments were performed by unqualified persons; were conducted at random for no adequate scientific reason, and under revolting physical conditions. All of the experiments were conducted with unnecessary suffering and injury and but very little, if any, precautions were taken to protect or safeguard the human subjects from the possibilities of injury, disability, or death. In every one of the experiments the subjects experienced extreme pain or torture, and in most of them they suffered permanent injury, mutilation, or death, either as a direct result of the experiments or because of lack of adequate follow-up care.

Obviously all of these experiments involving brutalities, tortures, disabling injury, and death were performed in complete disregard of international conventions, the laws and customs of war, the general principles of criminal law as derived from the criminal laws of all civilized nations, and Control Council Law No. 10. Manifestly human experiments under such conditions are contrary to “the principles of the law of nations as they result from the usages established among civilized peoples, from the laws of humanity, and from the dictates of public conscience.”

Whether any of the defendants in the dock are guilty of these atrocities is, of course, another question.

Under the Anglo-Saxon system of jurisprudence every defendant in a criminal case is presumed to be innocent of an offense charged until the prosecution, by competent, credible proof, has shown his guilt to the exclusion of every reasonable doubt. And this presumption abides with a defendant through each stage of his trial until such degree of proof has been adduced. A “reasonable doubt” as the name implies is one conformable to reason—a doubt which a reasonable man would entertain. Stated differently, it is that state of a case which, after a full and complete comparison and consideration of all the evidence, would leave an unbiased, unprejudiced, reflective person, charged with the responsibility for decision, in the state of mind that he could not say that he felt an abiding conviction amounting to a moral certainty of the truth of the charge.

If any of the defendants are to be found guilty under counts two or three of the indictment it must be because the evidence has shown beyond a reasonable doubt that such defendant, without regard to nationality or the capacity in which he acted, participated as a principal in, accessory to, ordered, abetted, took a consenting part in, or was connected with plans or enterprises involving the commission of at least some of the medical experiments and other atrocities which are the subject matter of these counts. Under no other circumstances may he be convicted.

Before examining the evidence to which we must look in order to determine individual culpability, a brief statement concerning some of the official agencies of the German Government and Nazi Party which will be referred to in this judgment seems desirable.

THE MEDICAL SERVICE IN GERMANY

Adolf Hitler was the head of the Nazi Party, the German Government, and the German Armed Forces. His title as Chief of the Government was “Reich Chancellor”. As Supreme Leader of the National Socialist German Workers’ Party, commonly called the NSDAP or Nazi Party, his title was “Fuehrer”. As head of Germany’s armed military might he was “Supreme Commander in Chief of the German Armed Forces [Supreme Commander of the German Armed Forces], or Wehrmacht”.

The staff through which Hitler controlled the German Armed Forces was known as the “Supreme Command of the Wehrmacht” (OKW). The chief of this staff was Field Marshal Wilhelm Keitel.

Under the Supreme Command of the Wehrmacht were the Supreme [High] Commands of the Army, Navy, and Air Force. The Supreme [High] Command of the Navy (OKM) was headed by Grand Admiral Karl Doenitz. The Supreme [High] Command of the Army (OKH) was headed by Field Marshal Walter von Brauchitsch until December 1941, and thereafter by Hitler himself. The Supreme [High] Command of the Air Force (OKL) was headed by Reich Marshal Hermann Goering.

Each of the three branches of the Wehrmacht maintained its own medical service.

Army Medical Service. The defendant Handloser was the head of the Army Medical Service from 1 January 1941 to 1 September 1944. While in this position he served in two capacities, namely; as Army Medical Inspector and as Army [Heeres] Physician. These positions required the maintenance of two departments, each separate from the other. At one time or another there were subordinated to Handloser in these official capacities the following officers, among others: Generalarzt Professor Schreiber and Professor Rostock; Oberstabsaerzte Drs. Scholz, Eyer, Bernhard Schmidt and Craemer; Oberstabsaerzte Professor Gutzeit and Professor Wirth; Stabsarzt Professor Kliewe and Professor Killian, and Stabsarzt Dr. Dohmen. Under his supervision in either or both of his official capacities were the Military Medical Academy, the Typhus and Virus Institute of the OKH at Cracow [Krakow] and Lemberg [Lvov], and the Medical School for Mountain Troops at St. Johann.

Luftwaffe Medical Service. From the beginning of the war until 1 January 1944 Hippke was Chief of the Medical Service of the Luftwaffe. On that date the defendant Schroeder succeeded Hippke and remained in that position until the end of the war.

Subordinated to Schroeder as Chief of the Medical Service of the Luftwaffe were the following defendants: Rose, who was consulting medical officer on hygiene and tropical medicine; Weltz, who was chief of the Institute for Aviation Medicine in Munich; Becker-Freyseng, a consultant for aviation medicine in Schroeder’s office; Ruff, the chief of the Institute for Aviation Medicine in the German Experimental Institute for Aviation in Berlin; Romberg, Ruff’s chief assistant, who toward the end of the war attained the position of a department head at the Institute; Schaefer, who, in the summer of 1942, was assigned to the staff of the Research Institute for Aviation Medicine in Berlin to do research work on the problem of sea emergency; and Beiglboeck, a Luftwaffe officer who performed medical experiments on concentration camp inmates at Dachau in July 1944 for the purpose of determining the potability of processed sea water.

Under Schroeder’s jurisdiction as Chief of the Luftwaffe Medical Service was the Medical Academy of the Luftwaffe at Berlin.

SS Medical Service. One of the most important branches of the Nazi Party was the Schutzstaffel of the NSDAP, commonly known as the SS. Heinrich Himmler was chief of the SS with the title of Reichsfuehrer SS, and on his personal staff, serving in various and sundry official capacities was the defendant Rudolf Brandt.

The SS maintained its own medical service headed by a certain Dr. Grawitz, who held the position of Reich Physician SS and Police.

Medical Service of the Waffen SS. The SS branch of the Nazi Party, in turn, was divided into several components, of which one of the most important was the Waffen, or Armed, SS. The Waffen SS was formed into military units and fought at the front with units of the Wehrmacht. Such medical units of the Waffen SS as were assigned to the field, became subordinated to the Medical Service of the Army, which was supervised by Handloser.

The Chief of the Waffen SS Medical Service was the defendant Genzken. His immediate superior was Reich Physician SS and Police Grawitz.

Six other defendants in the dock were members of the Medical Service of the SS, under Grawitz, namely; Gebhardt, who in 1940 became surgical adviser to the Waffen SS and who in August 1943 created and took over the position of chief clinical officer of the Reich Physician SS and Police; Mrugowsky, who became Chief of the Hygiene Institute of the Waffen SS under Genzken in November 1940, and when the Institute was taken from Genzken’s supervision on 1 September 1943 and placed under direct subordination to Grawitz, remained as chief; Poppendick, who in 1941 was appointed Chief Physician of the Main Race and Settlement Office in Berlin and who in 1943 also became chief of the personal staff of the Reich Physician SS and Police; Hoven, who from the beginning of 1941 until July 1942, served as the assistant, and from then to September 1943, as chief physician at the Buchenwald concentration camp; Fischer, an assistant physician to the defendant Gebhardt; and finally the defendant Oberheuser, who in December 1940 became a physician at the Ravensbrueck concentration camp, and thereafter, from June 1943 until the end of the war, served as an assistant physician under the defendant Gebhardt at Hohenlychen.

Civilian Medical Service. Throughout the war the Civilian Medical Services of the Reich were headed by a certain Dr. Leonardo Conti. Conti had two principal capacities (1) he was the State Secretary for Health in the Ministry of the Interior of the Government; in this capacity he was a German civil servant subordinated to the Minister of the Interior—first Wilhelm Frick and later, Heinrich Himmler; (2) he was the Reich Health Leader of the Nazi Party; in this capacity he was subordinated to the Nazi Party Chancellery, the Chief of which was Martin Bormann. In his capacity as Reich Health Leader, Conti had as his deputy the defendant Blome.

Reorganization of Wehrmacht Medical Service. In 1942 a reorganization of the various medical services of the Wehrmacht was effected. By a Fuehrer decree of 28 July 1942, Handloser became Chief of the Medical Services of the Wehrmacht, while at the same time retaining his position as Chief Physician of the Army and Army Medical Inspector. Under the decree referred to, Handloser was given power and authority to supervise and coordinate “all tasks common to the Medical Services of the Wehrmacht, the Waffen SS and the organizations and units subordinate or attached to the Wehrmacht.” He was also commanded “to represent the Wehrmacht before the civilian authorities in all common medical problems arising in the various branches of the Wehrmacht, the Waffen SS and organizations and units subordinate or attached to the Wehrmacht” and “to protect the interests of the Wehrmacht in all medical measures taken by the civilian authorities.”

Handloser thus became supreme medical leader in the military field, as was Conti in the civilian health and medical service.

By a subsequent Fuehrer decree of 7 August 1944 Handloser was relieved of his duties as Chief Physician of the Army and Army Medical Inspector, but retained his position as Chief of the Wehrmacht Medical Service.

By the decree of 28 July 1942 pursuant to which Handloser became Chief of the Medical Services of the Wehrmacht, the defendant Karl Brandt became empowered, subordinate only to, and receiving instructions directly from, Hitler “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.” The decree also directed that Brandt “is to be kept informed about the fundamental events in the Medical Service of the Wehrmacht and in the Civilian Health Service” and “is authorized to intervene in a responsible manner.”

A subsequent decree issued 5 September 1943 extended the powers of the defendant Karl Brandt by providing: “The plenipotentiary for the Medical and Health Services * * * is charged with centrally coordinating and directing the problems and activities of the entire Medical and Health Service according to instructions. In this sense this order applies also to the field of medical science and research, as well as to the organizational institutions concerned with the manufacture and distribution of medical material. The plenipotentiary for the Medical and Health services is authorized to appoint and commission special deputies for this sphere of action.”

By a later decree of 25 August 1944 Karl Brandt was made Reich Commissioner for Sanitation and Health for the duration of the war; the decree providing:

“In this capacity his office ranks as highest Reich Authority” and he is “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.”

Thus, by this series of decrees, the defendant Karl Brandt, within this sphere of competence, became the supreme medical authority of the Reich subordinate to no one but Hitler.

Three of the defendants are not physicians.

The first is the defendant Brack who became subordinated to Bouhler at the time the latter was appointed Chief of the Chancellery of the Fuehrer, in 1934, and remained with Bouhler throughout the war.

The second is the defendant Rudolf Brandt who, from the time he joined the staff of Himmler in 1933, served for a twelve-year period in varying capacities. At first Rudolf Brandt was a mere clerk in the staff of the Reichsfuehrer SS but by 1936 had risen to chief of the personal staff of Himmler. In 1938 or 1939 he became Himmler’s liaison officer to the Ministry of the Interior and particularly to the Office of the Secretary of the Interior. When Himmler became Minister of the Interior in 1943 Rudolf Brandt became Chief of the Ministerial Office; when Himmler became President of the Ahnenerbe Society, Rudolf Brandt became liaison officer between Himmler and the Reich Secretary of the Ahnenerbe Society, defendant Wolfram Sievers.

The third is the defendant Sievers, who was a member of Himmler’s personal staff and Reich Business Manager of the Ahnenerbe Society from 1 July 1935 until the end of the war.

THE AHNENERBE SOCIETY

The Ahnenerbe Society, of which Sievers was Reich Business Manager, was in existence as an independent entity as early as 1933. On 1 July 1935 the Ahnenerbe became duly registered as an organization to conduct or further “research on the locality, mind, deeds and heritage of the Northern race of Indo-Germans and to pass on the results of this research to the people in an interesting manner.” On 1 January 1942 the Society became part of the personal staff of the Reichsfuehrer SS and thereby a section of the SS. Its management was composed of Heinrich Himmler as President, Professor Dr. Wuest, Rector of the University of Munich, as Curator, and the defendant Sievers as Reich Business Manager. Subsequently, during the same year, the Institute of Military Scientific Research was established as a part of the Ahnenerbe. Its purposes are defined in a letter written by Himmler to Sievers, which directed the following with reference to the Ahnenerbe:

“1. To establish an Institute for Military Scientific Research.

2. To support in every possible way the research carried out by SS Hauptsturmfuehrer Professor Dr. Hirt and to promote all corresponding research and undertakings.

3. To make available the required apparatus, equipment, accessories and assistants, or to procure them.

4. To make use of the facilities available in Dachau.

5. To contact the Chief of the SS Economic and Administrative Main Office with regards to the costs which can be borne by the Waffen SS.”

In its judgment, the International Military Tribunal made the following findings of fact with reference to the Ahnenerbe:

“Also attached to the SS main offices was a research foundation known as the Experiments Ahnenerbe. The scientists attached to this organization are stated to have been mainly honorary members of the SS. During the war an institute for military scientific research became attached to the Ahnenerbe which conducted extensive experiments involving the use of living human beings. An employee of this institute was a certain Dr. Rascher, who conducted these experiments with the full knowledge of the Ahnenerbe, which were subsidized and under the patronage of the Reichsfuehrer SS who was a trustee of the foundation.”[58]

We shall now discuss the evidence as it pertains to the cases of the individual defendants.

The evidence conclusively shows that the German word “Fleckfieber” which is translated in the indictment as “spotted fever” is more correctly translated by “typhus.” This is admitted, and in this judgment, in accord with the evidence, we use the word typhus instead of “spotted fever.”

KARL BRANDT

The defendant Karl Brandt is charged with special responsibility for, and participation in, Freezing, Malaria, Lost Gas, Sulfanilamide, Bone, Muscle and Nerve Regeneration and Bone Transplantation, Sea-Water, Epidemic Jaundice, Sterilization, and Typhus Experiments, as alleged under counts two and three of the indictment. He is also charged in counts two and three with criminality in connection with the planning and carrying out of the Euthanasia Program of the German Reich. Under count four of the indictment he is charged with membership in the SS, an organization declared criminal by the judgment of the International Military Tribunal.

Karl Brandt was born 8 January 1904 at Muehlhausen, Alsace, then a portion of Germany, studied medicine, and passed his medical examination in 1928. He joined the National Socialist Party in January 1932, and became a member of the SA in 1933. He became a member of the Allgemeine SS in July 1934 and was appointed Untersturmfuehrer on the day he joined that organization. During the summer of 1934 he became Hitler’s “Escort Physician”—as he describes the office.

He was promoted to the grade of Obersturmfuehrer in the Allgemeine SS on 1 January 1935, and in 1938 was classed as deferred in order that in case of war he might be free to serve on the staff of the Reich Chancellery in Hitler’s headquarters. During the month of April 1939 Karl Brandt was promoted to the rank of Obersturmbannfuehrer in the Allgemeine SS. In 1940 he was transferred from the Allgemeine SS to the Waffen SS, in which commissions were equivalent to those of the army. On 30 January 1943 he received a grade equivalent to that of major general in the Waffen SS, and on 20 April 1944 was promoted to the grade of lieutenant general in that organization. Having at some previous date been relieved as Hitler’s escort physician, he was again appointed as such in the fall of 1944. On 16 April 1945 he was arrested by the Gestapo, and the next day was condemned to death by a court at Berlin. He was released from arrest by order of the provisional government under Doenitz on 2 May 1945. On 23 May 1945 he was placed under arrest by the British authorities.

By decree bearing date 28 July 1942, signed by Hitler, Keitel, and Lammers, Karl Brandt was invested with high authority over the medical services, military and civilian, in Germany. Paragraphs 3 and 4 of this decree, referring to Karl Brandt, read as follows:

“3. 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.

“4. My plenipotentiary for Health and Medical Services is to be kept informed about the fundamental events in the Medical Service of the Wehrmacht and in the Civilian Health Service. He is authorized to intervene in a responsible manner.”

By decree bearing date 5 September 1943, signed by Hitler and Lammers, Brandt’s authority was strengthened. This decree reads as follows:

“In amplification of my decree concerning the Medical and Health Services of 28 July 1942 (RGBL. I, P. 515) I order:

“The plenipotentiary for the Medical and Health Services, General Commissioner Professor Dr. med. Brandt, is charged with centrally coordinating and directing the problems and activities of the entire Medical and Health Services according to instructions. In this sense this order applies also to the field of medical science and research, as well as to the organizational institutions concerned with the manufacture and distribution of medical material.

“The plenipotentiary for the Medical and Health Services is authorized to appoint and commission special deputies for his spheres of action.”

By further decree bearing date 25 August 1944, signed by Hitler, Lammers, Bormann, and Keitel, Karl Brandt received further authority. This decree reads:

“I hereby appoint the General Commissioner for Medical and Health matters, Professor Dr. Brandt, Reich Commissioner for Sanitation and Health [Reich Commissioner for Medical and Health Services] as well, for the duration of this war. In this capacity his office ranks as highest Reich authority.

“The Reich Commissioner for Medical and Health Services is 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.”

Prosecution Exhibit 445, a letter bearing date at Munich, 9 January 1943, signed by Conti and marked “Strictly Confidential” directed to the Leaders of Public Health Gau Offices of the National Socialist German Workers’ Party, refers to a decree of the Fuehrer on “Suspending the Pledge to Secrecy in Special Cases.” The letter continues:

“For your strictly confidential information I am sending attached Fuehrer decree and the circular letter I am writing on that subject to the heads of the medical chambers.”

Another portion of the exhibit consists of a copy of Conti’s letter, also bearing date 9 January 1943, to the heads of the medical chambers, and reads as follows:

“Strictly Confidential.

“Subject: Fuehrer decree on suspension of pledge to secrecy in special cases.

“Gentlemen:

“I am sending you enclosed a Fuehrer decree which I received from Professor Dr. Brandt.

“Communications having bearing on the Fuehrer decree should be directed to the following address: Professor Doctor Karl Brandt, Personal Attention, Berlin W8, Reich Chancellory.

“It is left to the discretion of the physician who is handling the case whether he wishes to acquaint the patient with the information himself.”

Hitler’s decree, bearing date 23 December 1942, reads as follows:

“I not only relieve physicians, medical practitioners and dentists of their pledge to secrecy towards my Commissioner General Professor Dr. med. Karl Brandt, but I place upon them the binding obligation to advise him—for my own information—immediately after a final diagnosis has established a serious disease, or a disease of ill-boding character, with a personality holding a leading position or a position of responsibility in the State, the Party, the Wehrmacht, in industry, and so forth.”

Concerning this matter Karl Brandt testified that the decree “in special cases” relieved German physicians from one of the generally accepted principles of medical practice.

From the year 1942 to the end of the war Karl Brandt was a member of the Reich Research Council and was also a member of the Presidential Council of that body.

Karl Brandt, then, finally reached a position authorizing him to issue instructions to all the medical services of the State, Party, and Wehrmacht concerning medical problems (Hitler Decree bearing date 25 August 1944). The above decrees of Hitler disclose his great reliance upon Karl Brandt and the high degree of personal and professional confidence which Hitler reposed in him.

It may be noted that by the service regulation governing the Chief of the Medical Services of the Wehrmacht, issued by Keitel 7 August 1944, the chief of those medical services was required to pay due regard to the general rules of the Fuehrer’s Commissioner General for Medical and Health Departments. The regulation contained the following:

“3. The Chief of the Medical Services of the Wehrmacht will inform the Fuehrer’s Commissioner General about basic events in the field of the Medical Services of the Wehrmacht.”

By a pre-trial affidavit made by the defendant Handloser and put in evidence by the prosecution, Handloser makes the statement that Karl Brandt was his “immediate superior in medical affairs.”

SULFANILAMIDE EXPERIMENTS

Certain sulfanilamide experiments were conducted at Ravensbrueck for a period of about a year prior to August 1943. These experiments were carried on by the defendants Gebhardt, Fischer, and Oberheuser—Gebhardt being in charge of the project. At the Third Meeting of the Consulting Physicians of the Wehrmacht held at the Military Medical Academy in Berlin from 24 to 26 May 1943, Gebhardt and Fischer made a complete report concerning these experiments. Karl Brandt was present and heard the reports. Gebhardt testified that he made a full statement concerning what he had done, stating that experiments had been carried out on human beings. The evidence is convincing that statements were also made that the persons experimented upon were concentration camp inmates. It was stated that 75 persons had been experimented upon, that the subjects had been deliberately infected, and that different drugs had been used in treating the infections to determine their respective efficacy. It was also stated that three of the subjects died. It nowhere appears that Karl Brandt made any objection to such experiments or that he made any investigation whatever concerning the experiments reported upon, or to gain any information as to whether other human subjects would be subjected to experiments in the future. Had he made the slightest investigation he could have ascertained that such experiments were being conducted on non-German nationals, without their consent, and in flagrant disregard of their personal rights; and that such experiments were planned for the future.

In the medical field Karl Brandt held a position of the highest rank directly under Hitler. He was in a position to intervene with authority on all medical matters; indeed, it appears that such was his positive duty. It does not appear that at any time he took any steps to check medical experiments upon human subjects. During the war he visited several concentration camps. Occupying the position he did, and being a physician of ability and experience, the duty rested upon him to make some adequate investigation concerning the medical experiments which he knew had been, were being, and doubtless would continue to be, conducted in the concentration camps.

EPIDEMIC JAUNDICE EXPERIMENTS

Karl Brandt is charged with criminal responsibility for experiments conducted for the purpose of discovering an effective vaccine to bring about immunity from epidemic jaundice. Grawitz, by letter dated 1 June 1943, wrote Himmler stating that Karl Brandt had requested his assistance in the matter of research on the causes of epidemic jaundice. Grawitz stated that Karl Brandt had interested himself in this research and desired that prisoners be placed at his disposal. The letter further stated that up to that date experiments had been made only on animals, but that it had become necessary to pursue the matter further by inoculating human beings with virus cultures. The letter stated that deaths must be anticipated, and that eight prisoners who had been condemned to death were needed for the experiments at the hospital of the concentration camp at Sachsenhausen. Under date of 16 June 1943 Himmler acknowledged the letter from Grawitz and directed that eight criminals in Auschwitz, Jews of the Polish Resistance Movement condemned to death, should be used for experiments which should be conducted by Dr. Dohmen at Sachsenhausen. Karl Brandt’s knowledge of experiments on non-German nationals is clearly shown by the foregoing.

LOST (MUSTARD) GAS EXPERIMENTS

It is clear from the record that experiments with Lost gas were conducted on concentration camp inmates throughout the period covered by the indictment. The evidence is that over 200 concentration camp inmates, Russians, Poles, Czechs, and Germans, were used as experimental subjects. At least 50 of these subjects, most of whom were nonvolunteers, died as a direct or indirect result of the treatment received.

Karl Brandt knew of the fact that such experiments were being conducted. The evidence is to the effect that he knew of Lost gas experiments conducted by Bickenbach at Strasbourg during the fall of 1943, in which Russian prisoners were apparently used as subjects, some of whom died.

A letter written by the defendant Sievers to the defendant Rudolf Brandt, dated 11 April 1944, points to the fact that Karl Brandt knew of still other such experiments. The letter states, that in accordance with instructions he, Sievers, had contacted Karl Brandt, at Beelitz, and had reported to him concerning the activities of a certain Dr. Hirt, who the evidence shows had been experimenting with Lost gas upon concentration camp inmates at Natzweiler. In the letter, Sievers states, further, that Karl Brandt had told him that he would be in Strasbourg in April and would then discuss details with Dr. Hirt.

Knowledge of the conduct of at least some of the experiments was confirmed by Karl Brandt when he testified in his own behalf. He stated that pursuant to competent authority he had engaged in studies concerning defense measures against poison gas. He admitted receiving a report from Hirt, and that one reading the report could reach the conclusion that human beings had been experimented upon in connection with injuries from Lost gas.

FREEZING, MALARIA, BONE, MUSCLE AND

NERVE REGENERATION AND BONE TRANSPLANTATION,

SEA-WATER, STERILIZATION,

AND TYPHUS EXPERIMENTS

The evidence does not show beyond a reasonable doubt that Karl Brandt is criminally responsible on account of the experiments with which he is charged under these specifications.

The defendant Karl Brandt certainly knew that medical experiments were carried out in concentration camps upon human subjects, that the experiments caused suffering, injury, and death. By letter bearing date 26 January 1943 Karl Brandt wrote to Wolff at the Fuehrer’s (Hitler’s) headquarters asking if it were possible to carry out “nutritional experiments” in concentration camps. The nature of the desired experiments does not appear, nor does the evidence show whether or not such experiments were ever made. The letter, however, indicates Brandt’s knowledge of the fact that human subjects could be made available for experimentation.

Defendant Rudolf Brandt, by letter dated 4 September 1944, wrote Baumert, evidently a member of Himmler’s staff, stating that Karl Brandt had telephoned and requested that Himmler direct that 10 prisoners from Oranienburg should be made available as of the next day for two days to test a certain drug. The letter stated that the prisoners would not be injured by the test.

It appears from an official note filed by Kliewe of the Army Medical Inspectorate, dated 23 February 1944, referring to a conversation with the defendant Blome on that date, that experiments concerning biological warfare connected with plant parasites, etc., had been made; that up to that date no experiments had been conducted in the field of human medicine; but that such experiments were necessary and were in contemplation. The memorandum continues:

“Field Marshal Keitel has given permission to build; Reichsfuehrer SS and Generalarzt Professor Brandt have assured him of vast support. By request of Field Marshal Keitel the armed forces are not to have a responsible share in the experiments, since experiments will also be conducted on human beings.”

It is significant that Hitler’s Chief of Staff should deem it advisable to direct that the Wehrmacht should have nothing to do with experiments on human subjects.

EUTHANASIA

Defendant Karl Brandt is charged under counts two and three of the indictment with criminal activities in connection with the euthanasia program of the German Reich, in the course of which thousands of human beings, including nationals of German occupied countries, were killed between 1 September 1939 and April 1945.

On his own letterhead Hitler, at Berlin, 1 September 1939, signed a secret order reading as follows:

“Reichsleiter Bouhler and Dr. Brandt, M.D., are charged with the responsibility of enlarging the authority of certain physicians to be designated by name in such a manner that persons who, according to human judgment, are incurable can, upon a most careful diagnosis of their condition of sickness, be accorded a mercy death.”

Bouhler was holding a high office in the NSDAP. He was not a physician.

The foregoing order was not based on any previously existing German law; and the only authority for the execution of euthanasia was the secret order issued by Hitler.

The evidence shows that Bouhler and Karl Brandt, who were jointly charged with the administration of euthanasia, entered upon the duties assigned them in connection with the setting up of processes for carrying out the order. A budget was adopted; the method of determining candidates for euthanasia was established; a patients’ transport corporation was organized to convey the selected patients to the gassing chambers. Questionnaires were prepared which were forwarded to the heads of mental institutions, one questionnaire to be accomplished concerning each inmate and then returned to the Ministry of the Interior. At the Ministry the completed questionnaires were examined by so-called experts, who registered their professional opinions thereon, returned them to the appropriate office for final examination, and orders were issued for those patients who by this process were finally selected for extermination. Thereafter the condemned patients were gathered at collection points, from whence they were transported to euthanasia stations and killed by gassing.

Utmost secrecy was demanded of the executioners throughout the entire procedure. Persons actively concerned in the program were required to subscribe a written oath of secrecy and were warned that violation of that oath would result in most serious personal consequences. The consent of the relatives of the “incurables” was not even obtained; the question of secrecy being deemed so important.

Shortly after the commencement of operations for the disposal of “incurables”, the program was extended to Jews, and then to concentration camp inmates. In this latter phase of the program, prisoners deemed by the examining doctors to be unfit or useless for labor were ruthlessly weeded out and sent to the extermination stations in great numbers.

Karl Brandt maintains that he is not implicated in the extermination of Jews or of concentration camp inmates; that his official responsibility for euthanasia ceased at the close of the summer of 1941, at which time euthanasia procedures against “incurables” were terminated by order of Hitler.

It is difficult to believe this assertion, but even if it be true, we cannot understand how this fact would aid the defendant. The evidence is conclusive that almost at the outset of the program non-German nationals were selected for euthanasia and exterminated. Needless to say, these persons did not voluntarily consent to become the subjects of this procedure.

Karl Brandt admits that after he had disposed of the medical decisions required to be made by him with regard to the initial program which he maintains was valid, he did not follow the program further but left the administrative details of execution to Bouhler. If this be true, his failure to follow up a program for which he was charged with special responsibility constituted the gravest breach of duty. A discharge of that duty would have easily revealed what now is so manifestly evident from the record; that whatever may have been the original aim of the program, its purposes were prostituted by men for whom Brandt was responsible, and great numbers of non-German nationals were exterminated under its authority.

We have no doubt but that Karl Brandt—as he himself testified—is a sincere believer in the administration of euthanasia to persons hopelessly ill, whose lives are burdensome to themselves and an expense to the state or to their families. The abstract proposition of whether or not euthanasia is justified in certain cases of the class referred to is no concern of this Tribunal. Whether or not a state may validly enact legislation which imposes euthanasia upon certain classes of its citizens is likewise a question which does not enter into the issues. Assuming that it may do so, the Family of Nations is not obligated to give recognition to such legislation when it manifestly gives legality to plain murder and torture of defenseless and powerless human beings of other nations.

The evidence is conclusive that persons were included in the program who were non-German nationals. The dereliction of the defendant Brandt contributed to their extermination. That is enough to require this Tribunal to find that he is criminally responsible in the program.

We find that Karl Brandt was responsible for, aided and abetted, took a consenting part in, and was connected with plans and enterprises involving medical experiments conducted on non-German nationals against their consent, and in other atrocities, in the course of which murders, brutalities, cruelties, tortures and other inhumane acts were committed. To the extent that these criminal acts did not constitute war crimes they constituted crimes against humanity.

MEMBERSHIP IN CRIMINAL ORGANIZATION

Under count four of the indictment Karl Brandt is charged with being a member of an organization declared criminal by the judgment of the International Military Tribunal, namely, the SS. The evidence shows that Karl Brandt became a member of the SS in July 1934 and remained in this organization at least until April 1945. As a member of the SS he was criminally implicated in the commission of war crimes and crimes against humanity, as charged under counts two and three of the indictment.

CONCLUSION

Military Tribunal I finds and adjudges the defendant Karl Brandt guilty, under counts two, three, and four, of the indictment.

HANDLOSER

Under counts two and three of the indictment the defendant Handloser is charged with special responsibility for, and participation in, High-Altitude, Freezing, Malaria, Lost (Mustard) Gas, Sulfanilamide, Bone, Muscle and Nerve Regeneration and Bone Transplantation, Sea-Water, Epidemic Jaundice, and Typhus Experiments.

The charge of participation in the high-altitude experiments has been abandoned by the prosecution, and hence will not be considered further.

Handloser was a professional soldier, having been commissioned in the Medical Department of the German Army in 1910. During the First World War he rose to the position of commanding officer of a division medical unit, and on 1 September 1939 he was appointed Chief Medical Officer of the 14th German Army. After service in the field, on 6 November 1940 he was appointed Deputy Army Medical Inspector. He became Army Medical Inspector on 1 January 1941, and the following April was given the additional appointment of Chief Medical Officer of the field forces, holding both positions until 28 July 1942, when he became Chief of the Wehrmacht Medical Service. He retained also his other appointment and performed the duties of both positions. He was retained in his position as Chief of the Wehrmacht Medical Service on 1 September 1944, but relieved of the duties pertaining to the other office which he had theretofore held, he having exercised the functions of both offices until the date last mentioned. His professional career is more particularly described above.

Handloser states that prior to his last appointment in 1944 he was authorized to issue “instructions,” but not orders—testifying that after his latest appointment he had authority to issue orders to the chiefs of the medical services of all branches of the Wehrmacht. He also had jurisdiction over scientific medical institutes, etc., as designated by the service regulations promulgated at the time of his last appointment. While the chief medical officers of the army, navy, and Luftwaffe were under their appropriate military superiors, Handloser had authority to coordinate the activities of all the Wehrmacht medical services and to establish their coordinated action. As to the Waffen SS, his authority extended only to such units of that organization as were attached to and made part of the Wehrmacht.

Handloser testified that the utilization of medical material and personnel were, insofar as the Wehrmacht was concerned, within his jurisdiction after the entry of the decree of 28 July 1942, and that upon occasion he called meetings of the chief medical officers of the Wehrmacht and specialists in appropriate fields of medicine, in an effort to avoid duplication of certain research problems in connection with malaria, typhus, paratyphus, and cholera.

As Army Medical Inspector he was also ex officio president of the Scientific Senate, but testified that this body did not meet after 1942. As an army physician he denied any special knowledge concerning scientific problems peculiarly affecting the navy or the Luftwaffe; but on an organization chart prepared by him and received in evidence as Prosecution Exhibit 9 he is shown as subordinated to Karl Brandt and as Chief of the Medical Service of the Wehrmacht occupying the position of superior over the Army Medical Service and the chiefs of the Medical Services of the Navy and Luftwaffe and certain other subordinate agencies pertaining to the Wehrmacht. The chart also indicates his authority over the Chief of the Medical Office [Service] of the Waffen SS and components of the Waffen SS when attached to the Wehrmacht.

It appears that Handloser had much to do in connection with the calling of meetings of the “Consulting Physicians”; that he designated some of the subjects to be discussed at these meetings; and that his subordinate, Schreiber, arranged the details.

At the Second Meeting of Consulting Surgeons held 30 November to 3 December 1942 at the Military Medical Academy, he addressed those present (referring to the meeting as “This Second Work Conference East”), observing that representatives of the three branches of the Wehrmacht, of the Waffen SS and Police, of the Labor Service, and the Organization Todt, were also present. He called attention to the presence of Conti, Head of the Medical Services in the Civilian Sector.

At the Fourth Meeting of Consulting Physicians held at Hohenlychen, 16 to 18 May 1944, Karl Brandt—in addressing the meeting—said that Handloser, a soldier and a physician, was “responsible for the use and the performance of our medical officers”.

Schreiber, until 30 May 1943 a close subordinate of Handloser in his capacity of Army Medical Inspector, was a member of the Reich Research Council, paying particular regard to the control of epidemics as his special field. Schreiber frequently reported to Handloser, with whom he had worked for some years.

FREEZING EXPERIMENTS

Professor Dr. Holzloehner, who with Drs. Finke and Rascher performed freezing experiments on concentration camp inmates at Dachau, made reports on at least two occasions to groups of army physicians concerning cold and freezing problems. The first such report was made at a meeting held on 26 to 27 October 1942, which was called to consider problems concerning cold. Schreiber, who held a responsible position under Handloser from 1 April 1942 to 31 May 1943, was present at this meeting, as was Craemer, head of the Mountain Medical School of the army at St. Johann, which was also under Handloser’s jurisdiction. During the meeting and after Holzloehner had made his report, Rascher also made statements before the meeting concerning these experiments, from which it was obvious that statements contained in the reports were based upon observations made by experimenting on human beings. From the two reports it was clear that concentration camp inmates had been experimented upon and that some deaths had resulted.

Holzloehner was invited to lecture again upon this subject at the Second Meeting of the Consulting Physicians of the Wehrmacht, held 30 November to 3 December 1942, at the Military Medical Academy at Berlin. Handloser heard this talk by Holzloehner and testified that the matter of cold and freezing was one of the most important problems to the army.

We think it manifestly clear from the evidence dealing with freezing that Handloser had actual knowledge that such experiments had been conducted upon inmates at Dachau concentration camp, during the course of which suffering and deaths had resulted to the experimental subjects.

SULFANILAMIDE EXPERIMENTS

Handloser is charged with participation in the sulfanilamide experiments conducted by the defendant Gebhardt. These experiments were conducted at Ravensbrueck concentration camp during a period extending from 20 July 1942 to August 1943 upon concentration camp inmates without their consent. While these experiments were still in progress Gebhardt was invited to present a report on his research findings at the Third Meeting of the Consulting Physicians held on 18 and 19 May 1943, at the Military Medical Academy in Berlin. Handloser was present at that meeting; in fact, he had addressed the meeting prior to Gebhardt’s giving his report.

As stated elsewhere, Gebhardt made a frank and candid report of what he had been doing at Ravensbrueck; honestly telling the group that his experimental subjects were not volunteers but were concentration camp inmates condemned to death, who had been given the hope of reduction of sentence should they survive the experiments. By means of charts to illustrate his lecture, he made it clear that deaths had occurred among the human subjects. When on the witness stand, the defendant Gebhardt testified that prior to the meeting of consulting physicians he had discussed with either Schreiber or the defendant Rostock the subject matter of the lecture to be given, and that at that time Schreiber had stated that he had received data concerning the experiments through official channels.

At that time Schreiber was a direct subordinate of the defendant Handloser, and we think it may be fairly assumed that Schreiber’s knowledge was the knowledge of Handloser. However, be that as it may, the evidence is clear that Handloser heard the lecture by Gebhardt, as well as a subsequent lecture on the same subject matter given by the defendant Fischer. There can be no question, therefore, but that when Handloser came away from the meeting he was fully informed of the fact that medical experiments were being conducted in Ravensbrueck concentration camp with inmates who were nonvolunteers. Moreover, he knew that deaths had occurred among the experimental subjects.

After the meeting of consulting physicians had ended, Gebhardt returned to Ravensbrueck and conducted several more series of sulfanilamide experiments. The subjects used for the later experiments were Polish women who had been condemned to Ravensbrueck without trial, and who did not give their consent to act as experimental subjects. Three of these were killed by the experiments.

TYPHUS EXPERIMENTS

Under counts two and three of the indictment Handloser is charged with special responsibility for, and participation in, typhus experiments conducted in the Buchenwald concentration camp which were supervised by a certain Dr. Ding, and like experiments conducted in the Natzweiler concentration camp by a certain Dr. Haagen. As shown elsewhere in the judgment, these experiments were unlawful and resulted in deaths of non-German nationals.

There can be no question but that in 1941 typhus was a potential menace to the German Army and to many German civilians. The use of an adequate typhus vaccine was therefore a matter of prime importance. The distribution of vaccines to the Wehrmacht was within the control of Handloser. In the exercise of his functions he was also interested in typhus vaccine production.

The Typhus and Virus Institutes of the OKH at Cracow [Krakow] and Lemberg [Lvov] were engaged in the production of the Weigl vaccine from the intestines of lice. This vaccine was thought to be effective, but the production procedure was complicated and expensive; hence, sufficient quantities of this vaccine could not be furnished. Another vaccine—the so-called Cox-Haagen-Gildemeister vaccine, produced from egg-yolk cultures—could be quickly produced in large quantities, but its protective qualities had not been sufficiently demonstrated.

Evidence is before the Tribunal that the general problem was discussed at a meeting held in Berlin, 29 December 1941, attended by Dr. Bieber of the Ministry of Interior; Gildemeister; Dr. Scholz, a subordinate of Handloser; two physicians of the “governing body of the Government General”; and three representatives of the Behring Works. It is stated in the minutes of this conference that—

“The vaccine which is presently being produced by the Behring Works from chicken eggs shall be tested for its effectiveness in an experiment.”

For the purpose above referred to, Dr. Demnitz of the Behring Works would contact Dr. Mrugowsky. The minutes of the meeting were prepared by Bieber, under date 4 January 1942.

A copy of the minutes of the meeting last referred to was forwarded to the Army Medical Inspectorate at Berlin. It thus appears that a representative of Handloser’s office, Scholz, attended the meeting, and that a copy of the minutes was forwarded to the Army Medical Inspectorate.

There is also evidence that on the same day a conference was held between the defendant Handloser, Conti of the Ministry of Interior, Reiter of the Health Department of the Reich, Gildemeister of the Robert Koch Institute, and the defendant Mrugowsky, at which time it was decided to establish a research station at Buchenwald concentration camp to test the efficacy of the egg-yolk, and other vaccines on concentration camp inmates. As a result of the conference an experimental station was established at Buchenwald under the direction of Dr. Ding, with the defendant Hoven acting as his deputy.

Inasmuch as some of this information comes from Prosecution Exhibit 287, referred to as the “Ding Diary”, a discussion of the document is now appropriate.

Dr. Ding (who later changed his name to Schuler) was a very ambitious man who was apparently willing to engage in any professional activity which he thought might further his medical career. He gladly seized upon the opportunity to conduct experiments on concentration camp inmates in connection with the vaccine study.

Every German officer holding a position comparable to that held by Dr. Ding was required to keep a journal or diary showing his official activities. It appears that Ding kept two diaries. Ding’s personal diary containing official and personal entries and work reports has disappeared; his official log or journal concerning his work at Buchenwald is the document in evidence. This diary was kept by one Eugen Kogon, an inmate at Buchenwald. He made the actual entries and Ding verified and signed them.

Kogon, an Austrian subject, testified for the prosecution. We learn from his testimony that he was a former newspaper editor and held other highly responsible positions. He was sent by the German authorities to Buchenwald in 1939 as a political prisoner. In April 1943 he was assigned to Ding as a clerk or assistant. For many months prior to that time, however, he had been on extremely friendly terms with Ding and as a consequence was completely familiar with Ding’s operations. Indeed, so close was the attachment that during the first half of the year 1942 Ding had dictated the first portion of the diary which is in evidence, and Kogon had transcribed it. After officially becoming Ding’s assistant in 1943 all correspondence of every nature with which Ding was concerned passed through the hands of Kogon.

The diary came into Kogon’s possession at the breaking up of the camp, and remained in his possession, as he testified, until he delivered it to the Office of Chief of Counsel for War Crimes at Nuernberg.

It is manifest that the entries in the diary were often not made on the day they bear date; but this does not mean that it has no probative value. Almost every entry in the diary is personally signed by Ding. Time and again the entries in the diary have been corroborated by other credible evidence. The defendants themselves who were familiar with operations at Buchenwald have confirmed the entries in important essential particulars. We consider the diary as constituting evidence of considerable probative value, and shall give to the entries such consideration as under all circumstances they are entitled to receive.

The first entry in the Ding diary, under date of 29 December 1941, reads as follows:

“Conference between Army Sanitation Inspection [Inspector], General Chief Surgeon Professor Dr. Handloser; State Secretary for the Department of Health of the Reich, SS Gruppenfuehrer Dr. Conti; President Professor Reiter of the Health Department of the Reich; President Professor Gildemeister of the Robert Koch Institute (Reich Institution to Combat Contagious Diseases) and SS Standartenfuehrer and Lecturer (Dozent) Dr. Mrugowsky of the Institute of Hygiene, Waffen SS, Berlin.

“It has been established that the need exists, to test the efficiency of, and resistance of the human body to, the typhus serum extracted from egg yolks. Since tests on animals are not of sufficient value, tests on human beings must be carried out.”

This entry preceded by only a few days the actual commencement of the experiments on concentration camp inmates to determine the efficiency of the egg-yolk vaccine.

It seems certain that the foregoing entry in the Ding diary was written or rewritten at some date later than that which it bears, but the entry may be accepted as evidence of probative value to the fact that it was agreed by some persons in authority that experiments with vaccine prepared from egg yolks be made on concentration camp inmates at Buchenwald. The next entry in the diary bears date 2 January 1942, and reads as follows:

“The concentration camp Buchenwald is chosen for testing the typhus serums. SS Hauptsturmfuehrer Ding is charged with these tests.”

Handloser testified that many conferences concerning typhus vaccine took place and that he was interested in the testing of chicken-egg vaccine “on a sufficient number of persons in a certain vicinity, that is, within an area where typhus had already occurred or there was imminent danger existing.” He also testified that during the summer of 1941 he met Mrugowsky, who was recommended to him by Schreiber, Handloser’s subordinate. He also testified that he discussed the matter of the chicken-egg vaccines with Gildemeister and Conti. Handloser testified that he was present at many conferences, both at the front and in rear echelons, where such matters were discussed. Mrugowsky, in a letter dated 5 May 1942, reported to Eyer (who was a subordinate of Handloser) of the Typhus and Vaccine Institute of the High Command at Cracow [Krakow], describing the results of the first series of experiments carried out in Buchenwald. The experiments covered both the Weigl and egg-yolk vaccines. This report called attention to the fact that two experimental subjects had died.

An entry in the Ding diary dated 8 February 1943 states that Dr. Eyer and Dr. Schmidt, a hygienist on the staff of the Medical Inspectorate, visited the Typhus and Virus Institute at Buchenwald. Schmidt, a subordinate of Handloser from 1942 until August 1944, stated that he and Eyer had visited Buchenwald. He testified that his visit was concerned only with yellow fever vaccine tests which were being carried out at that station. This statement by the witness is not convincing. From the Ding diary it appears that infected lice were received by Ding prior to 30 November 1942. If this is correct, these lice could have come only from an institute under control of the army over which Handloser had jurisdiction.

Ding reported on his activities at the meeting of the Consulting Surgeons of the Wehrmacht held in May 1943 in Berlin. Handloser was present at that meeting but may not have heard the report, the report having been made to the hygiene section, which was presided over by Schreiber, Handloser’s subordinate. Defendant Rose, having heard the report, openly objected to the character of the experiments carried out at Buchenwald. Schreiber, then, had full knowledge of the nature of the experiments there carried on. Rose’s vigorous objection was doubtless a subject of general interest.

Handloser testified that on at least two occasions he discussed with Mrugowsky matters connected with vaccines against typhoid, typhus and other diseases. He stated that he was unable to fix the dates of these conferences.

The entries in the Ding diary clearly indicate an effective liaison between the Army Medical Inspectorate and the experiments which Ding was conducting at Buchenwald. There is also credible evidence that the Inspectorate was informed of medical research carried on by the Luftwaffe. The experiments at Buchenwald continued after Handloser had gained actual knowledge of the fact that concentration camp inmates had been killed at Dachau as the result of freezing; and that inmates at Ravensbrueck had died as victims of the sulfanilamide experiments conducted by Gebhardt and Fischer. Yet with this knowledge Handloser in his superior medical position made no effort to investigate the situation of the human subjects or to exercise any proper degree of control over those conducting experiments within his field of authority and competence.

Had the slightest inquiry been made the facts would have revealed that in vaccine experiments already conducted at Buchenwald, deaths had occurred—both as a result of artificial infections by the lice which had been imported from the Typhus and Virus Institute of the OKH at Cracow [Krakow] or Lemberg [Lvov], or from infections by a virulent virus given to subjects after they had first been vaccinated with either the Weigl, Cox-Haagen-Gildemeister, or other vaccines, whose efficacy was being tested. Had this step been taken, and had Handloser exercised his authority, later deaths would have been prevented in these particular experiments which were originally set in motion through the offices of the Medical Inspectorate and which were being conducted for the benefit of the German armed forces.

These deaths not only occurred with German nationals, but also among non-German nationals who had not consented to becoming experimental subjects.

OTHER EXPERIMENTS

The defendant Handloser is also charged with special responsibility for, and participation in, Malaria, Lost Gas, Bone, Muscle and Nerve Regeneration and Bone Transplantation, Sea-Water, and Epidemic Jaundice Experiments. In our view the evidence is insufficient to show any criminal connection of the defendant Handloser with regard to these experiments.

The law of war imposes on a military officer in a position of command an affirmative duty to take such steps as are within his power and appropriate to the circumstances to control those under his command for the prevention of acts which are violations of the law of war. The reason for the rule is plain and understandable. As is pointed out in a decision rendered by the Supreme Court of the United States, entitled Application of Yamashita, 66 Supreme Court [Reporter] 340-347, 1946—

“It is evident that the conduct of military operations by troops whose excesses are unrestrained by the orders or efforts of their commander would almost certainly result in violations which it is the purpose of the law of war to prevent. Its purpose to protect civilian populations and prisoners of war from brutality would largely be defeated if the commander of an invading army could with impunity neglect to take reasonable measures for their protection. Hence the law of war presupposes that its violation is to be avoided through the control of the operations of war by commanders who are to some extent responsible for their subordinates.”

What has been said in this decision applies peculiarly to the case of Handloser.

In connection with Handloser’s responsibility for unlawful experiments upon human beings, the evidence is conclusive that with knowledge of the frequent use of non-German nationals as human experimental subjects, he failed to exercise any proper degree of control over those subordinated to him who were implicated in medical experiments coming within his official sphere of competence. This was a duty which clearly devolved upon him by virtue of his official position. Had he exercised his responsibility, great numbers of non-German nationals would have been saved from murder. To the extent that the crimes committed by or under his authority were not war crimes they were crimes against humanity.

CONCLUSION

Military Tribunal I finds and adjudges the defendant Siegfried Handloser guilty under counts two and three of the indictment.

ROSTOCK

The defendant Rostock is charged under counts two and three of the indictment with special responsibility for, and participation in, Malaria, Lost (Mustard) Gas, Sulfanilamide, Bone, Muscle and Nerve Regeneration and Bone Transplantation, Sea-Water, Epidemic Jaundice, and Spotted Fever Experiments.

Rostock was a physician of recognized ability. From 1933 to 1941 he occupied successively the positions of senior surgeon of the Surgical Clinic in Berlin, Professor of Surgery of the University of Berlin, and Deputy Director of the University Clinic. In 1941 he was appointed Director of the Surgical Clinic, and in 1942 he became Dean of the Medical Faculty of the University of Berlin. Prior to the war he had joined the NSDAP, and in 1939 he was assigned to military duty as a consulting surgeon. In 1942 he was appointed consulting surgeon to the Army Medical Inspectorate and was subordinate to the Military Medical Academy in Berlin. He attained the rank of brigadier general, medical department (reserve). In 1943 he was appointed Chief of the Office for Medical Science and Research, a department under the supervision of defendant Karl Brandt, in which position Rostock remained until the end of the war. From the time he received the last mentioned appointment, Rostock acted as Brandt’s deputy on the Reich Research Council.

As Karl Brandt’s deputy Rostock was his agent in the field of medical science and research—Rostock being charged with the duty of coordinating and directing problems and activities concerning the medical health service insofar as science and research were concerned. Rostock was informed concerning medical research conducted by the several branches of the Wehrmacht. As head of the Office for Science and Research, he assigned research problems and designated some as “urgent”. It was his duty to avoid duplication of work in scientific research and to decide whether or not a suggested problem was worthy of a research assignment. It is clear that Rostock and Karl Brandt were intimate friends of years standing.

The prosecution does not contend that Rostock personally participated in criminal experiments. It vigorously argues, however, that—with full knowledge that concentration camp inmates were being experimented upon—he continued to function upon research assignments concerning scientific investigations, the result of which would probably further experiments upon human beings. The prosecution then argues that his knowledge concerning these matters, considered together with the position of authority which he occupied in connection with scientific research and the fact that he failed to exercise his authority in an attempt to stop or check criminal experiments, renders him guilty as charged.

In this connection the prosecution relies upon its Exhibit 457, a document which bears date at Berlin, 14 September 1944. It is headed, “Commissioner for Medical and Health Matters,” followed by “The Delegate for Science and Research.” Below appears:

“List of medical institutes working on problems of research which were designated as urgent by the discussion on research on 26 August 1944 in Beelitz.

“(Summary according to the 650 orders for research submitted to us.)”

The document then contains a list of research assignments numbered “1” to “45.” Numbers 42 and 44 read as follows:

Strasbourg

“42. Hygiene Institute (Haagen) virus research


“44. Anatomical Institute (Hirt) Chemical warfare agents.”

The document bears Rostock’s signature. Five of the problems concern hepatitis research, and three, virus research.

It appears from the evidence that Rostock’s duties included the avoidance of duplication in the distribution of assignments for medical research. If the head of the medical department of a branch of the Wehrmacht assigned to some particular physician or institute a particular scientific or medical problem, a copy of the assignment would be forwarded to Rostock, who would then coordinate the matter by ascertaining whether or not that assignment was being worked on by some other agency or whether it would lead to worthwhile results. Who classified as “urgent” the 45 of the 650 orders for research does not appear; but it may be assumed that Rostock approved that classification.

Doubtless Rostock knew that experiments on concentration camp inmates were being conducted. He presided over the meeting of surgeons held in May 1943, and there heard statements that experimental subjects had been artificially infected. Doubtless he knew that the experiments were dangerous and that further experiments would probably be conducted. However, it does not appear that either Rostock or any subordinate of his directed the work done on any assignment concerning criminal experiments. Certain of these experiments were classified as “urgent” at a “discussion on research” as above set forth. Nothing in the designation of any such assignment as appears in Prosecution Exhibit 457 contains on its face anything more than a matter of proper scientific investigation.

The record does not show that the position held by Rostock vested in him any authority whatsoever other than as above stated. No experiments were conducted by any person or organization which was to the least extent under Rostock’s control or direction.

CONCLUSION

Military Tribunal I finds and adjudges that the defendant Paul Rostock is not guilty as charged under the indictment, and directs that he be released from custody under the indictment when this Tribunal presently adjourns.

SCHROEDER

The defendant Schroeder is charged under counts two and three of the indictment with special responsibility for, and participation in, High-Altitude, Freezing, Sulfanilamide, Sea-Water, Epidemic Jaundice, Typhus and other vaccines, and Gas Experiments. The prosecution has abandoned the charge that he participated in the sulfanilamide experiments and hence that subject will not be considered further.

The defendant served as a medical officer with the infantry during the First World War. In the period prior to 1931 he was attached as medical officer to a number of military units. On 1 January 1931 he was transferred to the Army Medical Inspectorate as a consultant (Referent) on hospital matters and therapeutics with the rank of Oberstabsarzt (major). In 1935 Schroeder became chief of staff to Generalarzt Hippke in the newly established Medical Department of the Reich Ministry for Aviation. He retained this position after Hippke was made Inspector of the Medical Service of the Luftwaffe in 1937. In February 1940 Schroeder was appointed air fleet physician for Air Fleet II with the rank of Generalstabsarzt (major general). On 1 January 1944 he replaced Hippke as Chief of the Medical Service of the Luftwaffe. Simultaneously he was promoted to Generaloberstabsarzt (lieutenant general), which was the highest rank obtainable in the medical services. As Chief of the Medical Service of the Luftwaffe, all medical officers of the German Air Force were subordinated directly or indirectly to Schroeder. After he became Chief of the Medical Service of the Luftwaffe his immediate superior was Handloser, who was Chief of the Medical Service of the Wehrmacht.

HIGH-ALTITUDE EXPERIMENTS

These experiments were performed at Dachau concentration camp for the benefit of the Luftwaffe during the year 1942. Details of the experiments are discussed in other portions of this judgment.

During the period from 1941 to the end of 1943 the defendant Schroeder, in his position as air fleet physician of Air Fleet II, was in the operational zone of Air Fleet II, which comprised the Mediterranean area. He did not become Chief of the Medical Service of the Luftwaffe until 1 January 1944. There is no evidence that while air fleet physician he exercised or could have exercised any control over experiments then being conducted for the benefit of the Luftwaffe.

EPIDEMIC JAUNDICE EXPERIMENTS

Schreiber, a member of Handloser’s staff, who presided over a conference held in Breslau in June 1944 for the purpose of co-ordinating jaundice research, assigned groups of physicians to work together on jaundice problems. Dohmen, Gutzeit, and Haagen were assigned to one of these groups. On 27 June 1944 Haagen, a Luftwaffe officer, wrote his collaborator Kalk, a consultant to Schroeder, asking, “Could you in your official position take the necessary steps to obtain the required experimental subjects?”

The record shows that Haagen subsequently conducted epidemic jaundice experiments on prisoners at Natzweiler concentration camp. There is no evidence, however, to establish Schroeder’s criminal connection with these experiments. At most, all that can be said for this evidence is that Schroeder may have gained knowledge of the experiments through Kalk, a member of his staff—but even that fact has not been made plain.

FREEZING EXPERIMENTS

Freezing experiments were carried out at Dachau concentration camp for the benefit of the Luftwaffe, during the year 1942. Details of these experiments are discussed elsewhere in this judgment.

It is conclusively shown from the evidence dealing with freezing that as early as the year 1943 Schroeder had actual knowledge that such experiments had been conducted upon inmates at Dachau concentration camp, during the course of which suffering and deaths had resulted to the experimental subjects.

TYPHUS EXPERIMENTS

Experiments in connection with typhus were conducted at Schirmeck and Natzweiler concentration camps during the years 1942, 1943, and 1944. The details of these experiments are discussed elsewhere in this judgment.

The experiments were carried out by a Luftwaffe medical officer, Professor Dr. Haagen. As a medical officer of the Luftwaffe he was subject to Schroeder’s orders after the latter became Chief of the Medical Service of the Luftwaffe. The office of Schroeder issued and approved the research assignments pursuant to which these experiments were carried out. It provided the funds for the research. One of the chief collaborators in the program was the defendant Rose, consultant to the Chief of the Medical Service of the Luftwaffe.

Correspondence was carried on between Haagen and the Chief of Staff for the defendant Schroeder with reference to whether a typhus epidemic prevailing at Natzweiler was connected in any manner with the vaccine research then being conducted. The office of the Chief of the Medical Service of the Luftwaffe received reports on the experiments from which it could be clearly perceived that typhus vaccine experiments were being performed on concentration camp inmates.

While the experiments were in progress, Schroeder admits having visited Haagen at Strasbourg, but denies that he talked with Haagen about the experiments. The defendant’s assertion that the experiments were not discussed does not carry conviction.

As has been pointed out in this judgment, the law of war imposes on a military officer in a position of command an affirmative duty to take such steps as are within his power and appropriate to the circumstances to control those under his command for the prevention of acts which are violations of the law of war.

This rule is applicable to the case of Schroeder. At the time he became Chief of the Medical Service of the Luftwaffe, Schroeder knew of the fact that freezing experiments for the benefit of the Luftwaffe had been carried out at Dachau concentration camp by Luftwaffe medical officers. He knew that through these experiments injury and death had resulted to the experimental subjects. He also knew that during the years 1942 and 1943, typhus vaccine research had been carried out by the Luftwaffe officer, Haagen, for the benefit of the Luftwaffe Medical Service, at Natzweiler and Schirmeck concentration camps—and had he taken the trouble to inquire, he could have known that deaths had occurred as a result of these experiments.

With all this knowledge, or means of knowledge, before him as commanding officer, he blindly approved a continuation of typhus research by Haagen, supported the program, and was furnished reports of its progress, without so much as taking one step to determine the circumstances under which the research had been or was being carried on, to lay down rules for the conduct of present or future research by his subordinates, or to prescribe the conditions under which the concentration camp inmates could be used as experimental subjects.

As was the case with reference to the freezing experiments at Dachau, non-German nationals were used as experimental subjects, none gave their consent, and many suffered injury and death as a result of the experiments.

GAS EXPERIMENTS

Experiments with various types of poison gas were performed by Luftwaffe Officer Haagen and a Professor Dr. Hirt in the Natzweiler concentration camp. They began in November 1942 and were conducted through the summer of 1944. During this period a great many concentration camp inmates of Russian, Polish, and Czech nationality were experimented on with gas, at least 50 of whom died. A certain Oberarzt Wimmer, a staff physician of the Luftwaffe worked with Hirt on the gas experiments throughout the period.

We discussed the duty which rests upon a commanding officer to take appropriate measures to control his subordinates, in dealing with the case of Handloser. We shall not repeat what we said there. Had Schroeder adopted the measures which the law of war imposes upon one in position of command to prevent the actions of his subordinates amounting to violations of the law of war, the deaths of the non-German nationals involved in the gas experiments might well have been prevented.

SEA-WATER EXPERIMENTS

Sea-Water experiments were conducted on inmates of Dachau concentration camp during the late spring and summer of 1944. The defendant Schroeder openly admits that these experiments were conducted by his authority. When on the witness stand he related the circumstances under which these experiments were initiated and carried through to completion.

As related by Schroeder the experiment on making sea water drinkable was a problem of great importance. Two methods were available in Germany, each of which to some extent had been previously tried, both on animal and on human subjects. These were known as the Schaefer and the Berkatit processes. Use of the Schaefer method on sea water produced a satisfactory liquid essentially the same in its effects and potable qualities as ordinary pure drinking water. The Schaefer process, however, called for quantities of silver, which were thought to be unavailable. Use of the Berka process, however, resulted merely in changing the taste of sea water, thus making it more palatable, without at the same time doing away with danger to health and life which always results from consuming considerable quantities of untreated sea water. Materials were available for the Berka process, but Schroeder did not feel that it could be adopted until more was known of the method. At Schroeder’s direction, the defendant Becker-Freyseng arranged for a conference to be held at the German Air Ministry in May 1944 to discuss the problem. Present at the conference, among others, were Berka and the defendants Becker-Freyseng and Schaefer.

There is no doubt that the conference was well informed, and discussed all current data upon the subject. Such fact appears from the minutes of the meeting, in which it is stated:

“* * * Captain (med.) Dr. Becker-Freyseng reported on the clinical experiments conducted by Colonel (med.) Dr. von Sirany, and came to the final conclusion that he did not consider them as being unobjectionable and conclusive enough for a final decision. The Chief of the Medical Service is convinced that, if the Berka method is used, damage to health has to be expected not later than 6 days after taking Berkatit, which damage will result in permanent injuries to health and—according to the opinion of N.C.O. (med.) Dr. Schaefer—will finally result in death after not later than 12 days. External symptoms are to be expected such as dehydration, diarrhea, convulsions, hallucinations, and finally death.”

It was concluded at this meeting that it would be necessary to perform further sea-water experiments upon human beings in order to determine definitely whether or not the Berkatit method of treating sea water could be safely employed and used in connection with the German war effort. These experiments were planned to be carried on in group series, each of which would require six days, and would be made upon human beings in this order: one group would be supplied only with Berkatit-treated sea water; a second group would receive only ordinary drinking water; a third group would receive no water of any kind; the fourth group was to be given such water as was generally provided in emergency sea-distress kits, then used by German military personnel.

In addition to the first experiment it was agreed that a second experiment should be conducted. The notes of the meeting which deal with the second experimental series read as follows:

“Persons nourished with sea water and Berkatit, and as diet also the emergency sea rations.

“Duration of experiments—12 days.

“Since in the opinion of the Chief of the Medical Service, permanent injuries to health, that is, the death of the experimental subjects, has to be expected, as experimental subjects such persons should be used as will be put at the disposal by the Reichsfuehrer SS.”

On 7 June 1944 Schroeder wrote to Himmler through Grawitz asking for concentration camp inmates to be used as subjects in the sea-water experiments, which letter reads in part as follows:

“Highly Respected Reich Minister:

“Earlier already you made it possible for the Luftwaffe to settle urgent medical matters through experiments on human beings. Today again, I stand before a decision which, after numerous experiments on animals as well as human experiments on voluntary experimental subjects, demands a final solution. The Luftwaffe has simultaneously developed two methods for making sea water potable. The one method, developed by a medical officer, removes the salt from the sea water and transforms it into real drinking water; the second method, suggested by an engineer, leaves the salt content unchanged, and only removes the unpleasant taste from the sea water. The latter method in contrast to the first, requires no critical raw material. From the medical point of view this method must be viewed critically, as the administration of concentrated salt solutions can produce severe symptoms of poisoning.

“As the experiments on human beings could thus far only be carried out for a period of four days, and as practical demands require a remedy for those who are in distress at sea up to 12 days, appropriate experiments are necessary.

“Required are 40 healthy test subjects, who must be available for 4 whole weeks. As it is known from previous experiments that necessary laboratories exist in the concentration camp Dachau, this camp would be very suitable * * *”

Various other parties took part in correspondence upon this application, one of the writers suggesting that Jews or persons held in quarantine be used as experimental subjects. Another correspondent nominated asocial gypsy half-breeds as candidates for the treatment. Herr Himmler decided that gypsies, plus three others for control purposes, should be utilized.

In fairness to the defendant it should be stated that he contests the translation of the second sentence in the first paragraph of the letter written by him to Himmler, which the prosecution interprets as meaning that experiments could no longer be conducted on voluntary subjects, and that the words “demands a final solution” meant that involuntary subjects in concentration camps should be employed. Regardless of whether or not the letter quoted by us is a correct translation of the German original, the evidence shows that within a month after the letter was sent to Himmler through Grawitz, sea-water experiments were commenced at Dachau by the defendant Beiglboeck.

The method by which the experimental subjects were chosen is not known to the defendant Schroeder. As he explained from the witness stand with reference to his letter and the subsequent procedure, “I sent it away only after I had consulted [about] the possibility of the experiment with Grawitz, and after I had informed him how the whole thing was thought [of] by us, so that he could pass on this information to Himmler in case it became necessary. Then this letter was sent off, and after possibly four weeks when Beiglboeck had arrived at Dachau—in the meantime, he was given an opportunity to carry out this work. Whatever lay in between that, how in the administrative way this was organized, we never learned * * * it was an inter-office affair * * *. We only saw the initial point and the end point of this route.”

Thus began another experiment conducted under the auspices of the defendant Schroeder, wherein the initiator of the experiment failed to exercise the personal duty of determining that only consenting human subjects would be used, but left that responsibility to others. Again is demonstrated the case of an officer in a position of superior command who authorizes the performance of experiments by his subordinates while failing to take efforts to prescribe the conditions which will insure the conduct of the experiments within legally permissible limits.

The evidence shows conclusively that gypsies of various nationalities were used as experimental subjects. Former inmates of Auschwitz concentration camp were tricked into coming to Dachau with the promise that they were to be used as members of a labor battalion. When they arrived at Dachau they were assigned to the sea-water experimental station without their consent. During the course of the experiment many of them suffered intense physical and mental anguish.

The Tribunal finds that the defendant Schroeder was responsible for, aided and abetted, and took a consenting part in, medical experiments performed on non-German nationals against their consent; in the course of which experiments deaths, brutalities, cruelties, tortures, and other inhuman acts were committed on the experimental subjects. To the extent that these experiments did not constitute war crimes they constitute crimes against humanity.

CONCLUSION

Military Tribunal I finds and adjudges the defendant Oskar Schroeder guilty under counts two and three of the indictment.

GENZKEN

The defendant Genzken is charged under counts two and three of the indictment with special responsibility for, and participation in, Sulfanilamide, Spotted Fever, Poison, and Incendiary Bomb Experiments. The prosecution has abandoned the two latter charges and hence they will not be considered further. The defendant is also charged under count four of the indictment with membership, after 1 September 1939, in an organization declared criminal by the judgment of the International Military Tribunal—namely, the SS.

Genzken was commissioned in the Medical Service of the German Navy in 1912 and served through the First World War in that capacity. From 1919 to 1934, he engaged in the private practice of medicine. He joined the NSDAP in 1926, and in October 1934 he was again commissioned as a reserve officer of the naval medical department. On 1 March 1936 he was transferred to the medical department of the SS, with the rank of major, and assigned to the medical department of a branch of the SS, which in the summer of 1940 became the Waffen SS. He served as chief surgeon of the SS hospital in Berlin, and was director of the department charged with supplying medical equipment and with the supervision of medical personnel in concentration camps. He was also medical supervisor to Eicke, the head of all the concentration camps, which were within Genzken’s jurisdiction insofar as medical matters were concerned. In May 1940, Genzken was appointed Chief of the Medical Office of the Waffen SS with the rank of senior colonel, Grawitz being his medical superior. He retained this position until the close of the war. In 1942 he was designated as Chief of the Medical Service of the Waffen SS, Division D of the SS Operational Headquarters. On 30 January 1943 he was appointed Gruppenfuehrer and Generalleutnant in the Waffen SS.

SULFANILAMIDE EXPERIMENTS

The sulfanilamide experiments referred to in the indictment were conducted by the defendants Gebhardt, Fischer, and Oberheuser at Ravensbrueck concentration camp between 20 July 1942 and August 1943. During this period of time, four of the medical branches of the Waffen SS were under Genzken, including Office XVI, Hygiene, of which the defendant Mrugowsky was chief.

It is submitted by the prosecution that the evidence proves Mrugowsky to have given support and assistance to these experiments, and that, consequently, Genzken becomes criminally liable because of the position of command he held over Mrugowsky. It is also urged that because Genzken attended the meeting in Berlin at which Gebhardt and Fischer gave their lecture on the experiments, this likewise shows criminal connection.

That Mrugowsky rendered assistance to Gebhardt in the sulfanilamide experiments at Ravensbrueck is clearly proved. Mrugowsky put his laboratory and co-workers at Gebhardt’s disposal. He furnished the bacterial cultures for the infections. He conferred with Gebhardt about the medical problems involved. It was on the suggestion of Mrugowsky’s office that wood shavings and ground glass were placed in artificially inflicted wounds made on the subjects so that battlefield wounds would be more closely simulated. It also appears that Blumenreuter, who was the chief of Office XV under Genzken’s direction, may have furthered the experiments by furnishing surgical instruments and medicines to Gebhardt.

The Tribunal finds that Genzken was not present at the Berlin meeting.

Although Mrugowsky and Blumenreuter may have aided Gebhardt in his experiments, the prosecution has failed to show that it was done with Genzken’s direction or knowledge.

The prosecution, therefore, has failed to sustain the burden with regard to this particular specification.

TYPHUS EXPERIMENTS

The series of experiments which are the subject of this specification were conducted at Buchenwald concentration camp and began in January 1942. SS Hauptsturmfuehrer Dr. Ding, who was attached to the Hygiene Institute of the Waffen SS, was in charge of these experiments—with the defendant Hoven serving as his deputy.

Until 1 September 1943 both Mrugowsky, the Chief of the Hygiene Institute, and Ding, were subordinate to Genzken. Until the date last mentioned the chain of military command in the field of hygiene and research was as follows: Himmler-Grawitz-Genzken-Mrugowsky-Ding.

Prior to 1939 Ding had been camp physician at Buchenwald, and as such was subordinate to Genzken. During the early months of the war Genzken served as an army surgeon in the field, Ding being his adjutant. During the fall of 1941 Ding returned to Buchenwald and Genzken to his office at Berlin. During their service in the field Genzken and Ding had become warm personal friends. Ding was attached to the Hygiene Institute of the Waffen SS and was engaged in typhus research for the Institute. Genzken testified that Mrugowsky and the Hygiene Institute were in his chain of command prior to 31 August 1943. He further testified that after the date last mentioned his office had nothing to do with Ding save to provide money for Ding’s expenses, there being no other budget from which money was available. Mrugowsky testified that Genzken was his superior officer until 1 September 1943, and knew that the Hygiene Institute was working on the problem of providing an efficient vaccine against typhus. It is admitted that Ding was carrying out medical experiments on concentration camp inmates in order to determine the effect of various typhus vaccines.

It is not contended that such experiments were not carried out. In the course of these experiments two buildings or “blocks” were used. The experiments were conducted in Block 46, and when satisfactory vaccine was decided upon, Block 50 was used for the preparation of vaccines.

During the course of the experiments with vaccines in March 1942, Ding himself contracted typhus. Genzken testified that he was aware of the fact that concentration camp inmates were subjected to experiments, but stated that he was not advised as to the method of experimentation.

It is clear that the experiments necessary to decide upon a satisfactory vaccine preceded by a considerable period the production of the vaccine. Genzken testified that vaccine production began in December 1943, that the production establishment only moved into Block 50 in the middle of August, and that when production actually began “this establishment had already come under the agency of Grawitz and it was not subordinated any more” to him.

Under date of 9 January 1943 the Ding diary contains a lengthy entry stating that by Genzken’s order the typhus research station became the “Department of Typhus and Virus Research,” that Dr. Ding would be head of this department, and that during his absence defendant Hoven would act in his place. The entry further stated that Ding was appointed chief department head for special missions in hygiene, etc. The Ding diary is discussed elsewhere in this judgment. Considering the demonstrated desire of Ding for his personal aggrandizement, this entry is not entitled to entire credit, as written. It refers to Genzken as “Major General”—which rank he did not receive until a few weeks after 9 January 1943. The entry, however, has some probative value upon the question of Ding’s status during the year 1943.

Genzken testified that he “approved” the establishment of Ding’s department for vaccine research. He also testified that his department furnished necessary funds from its budget for Ding’s investigations.

From the evidence it appears that prior to 1 September 1943, Mrugowsky reported regularly to Genzken, on an average of once per week, either orally or in writing.

Under date 5 May 1942, Mrugowsky signed a written report upon the subject, “Testing Typhus Vaccines.” This report went to six different offices: the first copy, to Conti; the second copy, to Grawitz; and the third copy, to Genzken. The report commences: “The tests of four typhus vaccines made by us on human subjects at the instigation of the Reich Health Leader Dr. Conti had the following results * * *”. It is stated that the mortality of victims of typhus during an epidemic “was around 30 percent” and that “during the same epidemic four groups of experimental subjects were vaccinated with one each” of the four types of vaccine described in the beginning of the report.

“The experimental subjects were mostly in their twenties and thirties. Care was taken when selecting them that they did not come from typhus districts and also to ensure an interval of four to six weeks between the protective vaccination and the outbreak of the clinical symptoms of the disease. According to experience this period is imperative to achieve immunity.”

The effects of the four vaccines tested were described as follows. The report on the Weigl vaccine states that “nobody died”. The report on the Gildemeister and Haagen vaccine also states that no deaths occurred. The report on the Behring-Normal vaccine states that one person died. The experiment with the Behring-Strong vaccine reports one death.

The last paragraph of the report states: “In the last two groups the symptoms were considerably stronger than in the first groups * * *. No difference between the two vaccines of the Behring Works was observed. The attending physicians stated that the general picture of the disease in group four was rather more severe compared with that of the patients of group three.”

In a summation, Mrugowsky recommended the use of a vaccine “produced according to the chicken egg process, which, in its immunization effect, is equal to the vaccine after Weigl.”

“The effectiveness of protection depends on the method used in making the vaccine.”

Of course, experiments with vaccines, conducted because of the urgent need for the discovery of a protective vaccine, would lead to scant results unless the subjects vaccinated were subsequently in some manner effectively exposed to typhus, thereby demonstrating the effectiveness or noneffectiveness of the vaccination. While Mrugowsky’s report, above referred to, makes no reference to an artificial infection, it does state without further explanation that two deaths occurred, and in the last paragraph, quoted above, compares the severity of “the diseased” between groups three and four.

On cross-examination Mrugowsky testified that Dr. Ding was to lecture at a meeting of consulting surgeons in the spring of 1943, and that the witness informed Genzken concerning “the intended amount of vaccines to be produced by the SS.” Mrugowsky testified that he gave Genzken this information for three reasons: first, that Genzken had to be advised of the fact that Ding, as a member of the Waffen SS, was to give a lecture to the surgeons; second, that Genzken should be informed concerning “the effectiveness of a number of vaccines to be used for troops”; third, that Genzken should know when he could expect the first production of vaccines for the SS and the amounts he could count on for each month. Mrugowsky further testified:

“The conference with Dr. Genzken was extremely brief. As far as I remember we were standing close to his desk. I told him that the various vaccines which I mentioned to him had a different effect; I told him that the effect varied as to the length of the temperature and a reduction of fatalities; and I told him that after having vaccinated the entire SS we could count on some protective effect for all soldiers. On that occasion I showed him a few charts which Ding had handed over to me at that time, the same charts which Ding reproduced in his paper, and I used these charts in order to explain the effectiveness of the vaccines to him.”

Q. “The mortality figures and the temperature figures could be derived from these charts, couldn’t they?”

A. “Yes. If I remember correctly, on the heading of these charts the information was given what the day of the infection was. This entire conference was very brief and it is quite possible that Dr. Genzken—who was only concerned with the most important points which he had to know—it is quite possible that he overlooked that. I had no cause to point it out to him in particular since I was not reporting to him about Ding’s series of experiments but was only reporting to him about the protective value of various vaccines which he, as medical chief, had to know. These were two completely different points of view.”

The Tribunal is convinced that prior to 1 September 1943, Genzken knew the nature and scope of the activities of his subordinates, Mrugowsky and Ding, in the field of typhus research; yet he did nothing to insure that such research would be conducted within permissible legal limits. He knew that concentration camp inmates were being subjected to cruel medical experiments in the course of which deaths were occurring; yet he took no steps to ascertain the status of the subjects or the circumstances under which they were being sent to the experimental block. Had he made the slightest inquiry he would have discovered that many of the human subjects used were non-German nationals who had not given their consent to the experiments.

As the Tribunal has already pointed out in this judgment, “the duty and responsibility for ascertaining the quality of the consent rests upon each individual who initiates, directs, or engages in the experiment. It is a personal duty and responsibility which may not be delegated to another with impunity.”

We find that Genzken, in his official capacity, was responsible for, aided and abetted the typhus experiments, performed on non-German nationals against their consent, in the course of which deaths occurred as a result of the treatment received. To the extent that these experiments did not constitute war crimes they constituted crimes against humanity.

MEMBERSHIP IN CRIMINAL ORGANIZATION

Under count four of the indictment Genzken is charged with being a member of an organization declared criminal by the judgment of the International Military Tribunal, namely, the SS. The evidence shows that Genzken became a member of the SS on 1 March 1936 and voluntarily remained in that organization until the end of the war. As a high-ranking member of the Medical Service of the Waffen SS he was criminally implicated in the commission of war crimes and crimes against humanity, as charged under counts two and three of the indictment.

CONCLUSION

Military Tribunal I finds and adjudges the defendant Karl Genzken guilty, under counts two, three, and four of the indictment.

GEBHARDT

The defendant Gebhardt is charged under counts two and three of the indictment with special responsibility for, and participation in, High-Altitude, Freezing, Malaria, Lost Gas, Sulfanilamide, Bone, Muscle and Nerve Regeneration and Bone Transplantation, Sea-Water, Epidemic Jaundice, Sterilization, Typhus, Poison, and Incendiary Bomb Experiments.

The defendant Gebhardt held positions of great power and responsibility in the Medical Service of the SS in Nazi Germany. He joined the NSDAP in 1933 and the SS at least as early as 1935. He took part in the Nazi Putsch of 1923, which aimed at the overthrow of the so-called Weimar Republic, the democratic government of Germany, being then a member of the illegal Free Corps, “Bund Oberland.” When, in 1933, the hospital at Hohenlychen was founded, Gebhardt was appointed chief physician of this institution. In 1938 he became the attending physician to Himmler. He was also personal physician to Himmler and his family. In 1940 Gebhardt was appointed consulting surgeon of the Waffen SS and, in 1943, chief clinical officer (Oberster Kliniker) of the Reich Physician SS and Police, Grawitz. In the Allgemeine SS Gebhardt attained the rank of a Gruppenfuehrer (major general), and in the Waffen SS the rank of major general in the reserve.

SULFANILAMIDE EXPERIMENTS

The purpose for which these experiments were undertaken is defined in counts two and three of the indictment.

In the Ravensbrueck concentration camp during a period from 20 July 1942 until August 1943, the defendant Gebhardt, aided by defendants Fischer and Oberheuser, performed such experiments upon human subjects without their consent. Gebhardt personally requested Heinrich Himmler’s permission to carry out these experiments, and attempts to assume full responsibility for them and for any consequences resulting therefrom. He himself personally carried out the initial operations.

While it is not deemed strictly necessary in this judgment to describe in any detail the procedure followed in performing these experiments, a brief statement will now be made thereon. The first experimental subjects consisted of 15 male concentration camp inmates used during preliminary experiments in July 1942, but later 60 Polish women, who were experimented on in 5 groups of 12 subjects each.

In the first series of experiments the healthy subjects were infected with various bacteria, but resulting infections were not thereafter considered sufficiently serious to furnish an answer to the problem sought to be solved and further experiments were then undertaken.

Dr. Gebhardt has admitted that in the second series of experiments three of the subjects died as a result of the treatment received. All of these subjects were persons who had been selected by the concentration camp authorities and who were not consulted as to their consent or willingness to participate. Notwithstanding this, however, the experimental subjects protested against experiments both orally and in writing, stating that they would have preferred death to continued experiments, since they were convinced that they would die in any event.

An examination of the evidence presented to this Tribunal in connection with sulfanilamide experiments performed upon unwilling and nonconsenting concentration camp inmates indicates conclusively, that participating human subjects were used under duress and coercion in experiments performed upon their bodies; that persons acting as subjects incurred and suffered physical torture and the risk of death; that in the experiments here discussed at least five deaths of subjects were caused therefrom.

It is claimed by Dr. Gebhardt that all of the non-German experimental subjects were selected from inmates of concentration camps, former members of the Polish Resistance Movement, who had previously been condemned to death and were in any event marked for legal execution. This is not recognized as a valid defense to the charge of the indictment.

The Polish women who were used in the experiments had not given their consent to become experimental subjects. That fact was known to Gebhardt. The evidence conclusively shows that they had been confined at Ravensbrueck without so much as a semblance of trial. That fact could have been known to Gebhardt had he made the slightest inquiry of them concerning their status. Moreover, assuming for the moment that they had been condemned to death for acts considered hostile to the German forces in the occupied territory of Poland, these persons still were entitled to the protection of the laws of civilized nations. While under certain specific conditions the rules of land warfare may recognize the validity of an execution of spies, war rebels, or other resistance workers, it does not under any circumstances countenance the infliction of death or other punishment by maiming or torture.

BONE, MUSCLE AND NERVE REGENERATION AND BONE

TRANSPLANTATION EXPERIMENTS

These experiments were carried out in Ravensbrueck concentration camp during the same time, and on the same group of Polish women used in the sulfanilamide experiments. Upon these Polish inmates three kinds of bone operations were performed—artificially induced fractures, bone transplantations, bone splints—the conditions of the operations being specially created in each particular case. Some girls were required to submit to operations several times. In one instance small pieces of fibula were taken out; in another instance the periosteum of the leg was removed. Cases occurred where subjects were experimented on by deliberately fracturing their limbs in several places and testing the effect of certain treatments. In at least one case bone incisions were performed on a subject six different times. In another case the shoulder blade of a subject was removed.

Further recital of these activities is as unnecessary as were the operations themselves. The testimony heard and exhibits filed and examined by the Tribunal conclusively sustain the allegations of the indictment with reference to the experiments mentioned therein.

SEPSIS (PHLEGMON) EXPERIMENTS

A witness whose testimony must be accepted as credible testified concerning these experiments in which concentration camp inmates were used without their consent and were thereafter infected with pus. He testified as to at least two series of experiments which resulted fatally for 12 of the subjects.

The prosecution claims, and it is likely that these biochemical experiments which were performed in the Dachau concentration camp were complementary to and formed parts of the sulfanilamide experiments in Ravensbrueck. The evidence, however, is not sufficient to establish the criminal connection of Gebhardt with these experiments.

SEA-WATER EXPERIMENTS

Dr. Gebhardt’s position, which has been mentioned in this judgment as that of an official and personal associate of Heinrich Himmler—part of whose duties concerned concentration camp medical experiments, was partially defined by an order issued by Himmler 15 May 1944 directing that an opinion from Gebhardt would be required before any experiments thereafter could be carried out on such human subjects. This order stated that all medical experiments to be carried out at the concentration camps had to have Himmler’s personal approval. It appears, however, that while the application for permission to carry out experiments involving human subjects was required to be obtained from Himmler—yet before such application could be examined, a critical opinion of the chief clinical officer of the SS, Dr. Gebhardt, concerning its technical aspects was required to accompany it. Complying with this order Gebhardt, in reference to sea-water experiments, wrote—

“I deem it absolutely right to support the Luftwaffe in every way and to place a general physician of the Waffen SS at disposal to supervise the experiments.”

This alone is deemed to be sufficient to show that Dr. Gebhardt knew about, and approved, the performance of the sea-water experiments as charged in the indictment.

STERILIZATION EXPERIMENTS

Details of the sterilization experiments will be dealt with elsewhere in this judgment; and it is unnecessary to repeat them here, except to the extent necessary to inquire the part, if any, taken by Gebhardt therein.

On 7 and 8 July 1942 a conference took place between Himmler, Gebhardt, SS Brigadefuehrer Gluecks, and SS Brigadefuehrer Clauberg, to discuss the sterilization of Jewesses. Dr. Clauberg was promised that the Auschwitz concentration camp would be placed at his disposal for experiments on human beings and animals, and he was requested to discover by means of fundamental experiments a method of sterilizing persons without their knowledge. During the course of the conference, Himmler called the special attention of all present “to the fact that the matter involved was most secret and should be discussed only with the officers in charge and that the persons present at the experiments or discussions had to pledge secrecy.”

From this evidence it is apparent that Gebhardt was present at the initial meeting which launched at least one phase of the sterilization program in the concentration camps, and thus had knowledge and gave at least passive approval to the program.

HIGH-ALTITUDE, FREEZING, MALARIA, LOST GAS, EPIDEMIC

JAUNDICE, TYPHUS, POISON, AND INCENDIARY BOMB EXPERIMENTS

Details as to the origin of and procedure followed in these experiments are discussed elsewhere in this judgment, and will not be repeated. Our only concern is to determine to what extent, if any, the defendant Gebhardt took part in the experiments.

In these enterprises the defendant seems not to have taken any active part, as he did in the sulfanilamide experiments and in other programs. It may be argued that his close connection with Heinrich Himmler creates a presumption that these experiments were conducted with Gebhardt’s knowledge and approval. Be that as it may, no sufficient evidence to that effect has been presented, and a mere presumption is not enough in this case to convict the defendant.

Attention has been given to the brief filed by counsel for the defendant Gebhardt. For the most part it is unnecessary to discuss the theories presented in this brief, for the reason that the main reliance of the defense seems to be that in his connection with the experiments charged in the indictment, Dr. Gebhardt acted as a soldier in the execution of orders from an authorized superior. We cannot see the applicability of the doctrine of superior orders as a defense to the charges contained in the indictment. Such doctrine has never been held applicable to a case where the one to whom the order is given has free latitude of decision whether to accept the order or reject it. Such was the situation with reference to Gebhardt. The record makes it manifestly plain that he was not ordered to perform the experiments, but that he sought the opportunity to do so. Particularly is this true with reference to the sulfanilamide experiments: Gebhardt, in effect, took them away from Grawitz to demonstrate that certain surgical procedures advocated by him at the bedside of the mortally wounded Heydrich at Prague in May of 1942 were scientifically and surgically superior to the methods of treatment proposed by Dr. Morell, Hitler’s personal physician. The doctrine, therefore, is not applicable. But even if it were, the fact of such orders could merely be considered, under Control Council Law No. 10, as palliating punishment.

Another argument presented in briefs of counsel attempts to ground itself upon the debatable proposition that in the broad interest of alleviating human suffering, a state may legally provide for medical experiments to be carried out on prisoners condemned to death without their consent, even though such experiments may involve great suffering or death for the experimental subject. Whatever may be the right of a state with reference to its own citizens, it is certain that such legislation may not be extended so as to permit the practice upon nationals of other countries who, held in the most abject servitude, are subjected to experiments without their consent and under the most brutal and senseless conditions.

We find that Gebhardt, in his official capacity, was responsible for, aided and abetted, and took a consenting part in medical experiments performed on non-German nationals against their consent; in the course of which deaths, maiming, and other inhuman treatment resulted to the experimental subjects. To the extent that these experiments did not constitute war crimes they constituted crimes against humanity.

MEMBERSHIP IN CRIMINAL ORGANIZATION

Under count four of the indictment Gebhardt is charged with being a member of an organization declared criminal by the judgment of the International Military Tribunal, namely the SS. The evidence shows that Gebhardt became a member of the SS at least as early as 1933 and voluntarily remained in that organization until the end of the war. As one of the most influential members of the Medical Service of the Waffen SS he was criminally implicated in the commission of war crimes and crimes against humanity as charged under counts two and three of the indictment.

CONCLUSION

Military Tribunal I finds and adjudges the defendant Karl Gebhardt guilty under counts two, three and four of the indictment.

BLOME

The defendant Blome is charged under counts two and three of the indictment with personal responsibility for, and participation in Malaria, Lost Gas, and Sulfanilamide Experiments, the extermination of tubercular Poles, and the execution of the Euthanasia Program. Proof has also been adduced for the purpose of showing that he participated in the freezing bacteriological warfare, and blood coagulation experiments.

The charge with reference to sulfanilamide experiments has been abandoned by the prosecution and hence will not be considered further.

The defendant Blome studied medicine at Goettingen and received his medical degree in 1920. From 1924 to 1934 he engaged in private practice. In the latter year he was summoned to Berlin where, in 1935, he reorganized the German medical educational system. He also acted as adjutant in the central office of the German Red Cross and as business manager of the German Physicians’ Association, which position he held until the end of World War II. In 1938 he became President of the Bureau of the Academy for International Medical Education. From 1939 on Blome acted as deputy for Dr. Leonardo Conti who was leader of the German Physicians’ Association, Head of the Main Office for Public Health of the Party, and Leader of the National Socialist Physicians’ Association. In 1941 he became a member of the Reich Research Council, and in 1943 was appointed Plenipotentiary for Cancer Research, connected with the research commission for protection against biological warfare.

Blome joined the SA in 1931 and became the chief medical officer of the SA in the province of Mecklenburg. In 1934 he was appointed a province office leader, and in the SA he attained a rank equivalent to that of major general. In 1943 he was awarded the highest decoration of the Nazi Party.

As Plenipotentiary for Cancer Research, it was his duty to determine which research problems should be studied and to assign such problems to scientists best fitted to investigate them.

FREEZING EXPERIMENTS

The prosecution argues that Blome is criminally responsible for participation in the freezing experiments as charged in the indictment. In the subparagraph which particularly refers to freezing, Blome is not named among the defendants charged with special responsibility for the experiments. Moreover, the record does not contain evidence which shows beyond a reasonable doubt that Blome bore any responsible part in the conduct of the freezing experiments.

MALARIA EXPERIMENTS

The evidence is insufficient to disclose any criminal responsibility of the defendant in connection with the malaria experiments.

LOST GAS EXPERIMENTS

The evidence is insufficient to disclose any criminal responsibility of the defendant in connection with these experiments.

EXTERMINATION OF TUBERCULAR POLES

The basis for the prosecution’s case against the defendant in this regard is to be found in a series of letters with reference to the tuberculosis menace in the Reichsgau Wartheland, which had been overrun by the German Reich and settled by its citizens.

During the year 1941 the German Government began a program of extermination of the Jewish population of the eastern occupied territories. On 1 May 1942 Greiser, the German Military Governor of Reichsgau Wartheland, wrote Himmler advising him that “as to the 100,000 Jews in the district, the ‘special treatment’ approved by Himmler was about completed.” The letter then continued:

“* * * I ask you for permission to rescue the district immediately, after the measures taken against the Jews, from a menace which is increasing week by week, and use the existing and efficient special commandos for that purpose.

“There are about 230,000 people of Polish nationality in my district who were diagnosed to suffer from tuberculosis. The number * * * infected with open tuberculosis is estimated at about 35,000. This fact has led in an increasingly frightening measure to the infection of Germans who came to the Warthegau perfectly healthy * * *. A considerable number of well known leading men, especially of the police, have been infected lately and are not available for the war effort * * *. The ever increasing risks were also recognized and appreciated by the deputy of the Reich Leader for Public Health, Comrade Professor Dr. Blome * * *.

“Though in Germany proper it is not possible to take appropriate draconic steps against this public plague, I think I could take responsibility * * * to have cases of open tuberculosis exterminated among the Polish race here in the Warthegau. Of course, only a Pole should be handed over for such an action who is not only suffering from open tuberculosis, but whose incurability is proved and certified by a public health officer.

“Considering the urgency of this project I ask for your approval in principle as soon as possible. This would enable us to make the preparations with all necessary precautions now to get the action against the Poles suffering from open tuberculosis under way, while the action against the Jews is in its closing stages.

“Heil Hitler!

Greiser

Two days later Koppe, the police leader on Greiser’s staff, wrote to Rudolf Brandt restating Greiser’s proposal and urging Brandt to call the matter to Himmler’s attention. Brandt promptly acknowledged the letter, advising Koppe that the proposal had been referred to the Chief of the Security Police for opinion, but that the final decision would rest with Hitler.

On 9 June 1942 the Chief of the Security Police rendered his opinion to Himmler: “I have no scruples against having the protectorate members and stateless persons of the Polish race * * * who are afflicted with open tuberculosis, submitted to the special treatment in the sense of the proposal of Gau Leader Greiser. * * * The individual measures, though, will first have to be discussed thoroughly with the Security Police, in order to carry out the execution with the least possible attraction of attention.” The opinions thus rendered undoubtedly received the full approval of Himmler, for on 27 June 1942 Rudolf Brandt passed on to Greiser a letter from Himmler containing the following decision:

“Dear Comrade Greiser:

“I have no objection to having protectorate people and stateless persons of Polish origin who live within the territory of the Warthegau and are infected with tuberculosis handed over for special treatment as you suggest; as long as their disease is incurable * * *. I would like to request, however, to discuss the individual measures in detail with the Security Police first, in order to assure inconspicuous accomplishment of the task * * *.

[Signed]  “H. Himmler

The Himmler letter was acknowledged by Greiser on 21 November 1942, Greiser advising Himmler that in pursuance of the permission given him to apply “special treatment” to tubercular Poles he had made arrangements for an X-ray examination of all people in the territory, but that now that “special treatment” had been approved, Blome, Deputy Chief of the Public Health Office of the NSDAP was raising objections to its execution. A copy of Blome’s letter to Greiser was enclosed for Himmler’s information.

Blome’s letter to Greiser is dated 18 November 1942. It opens by recalling various conversations between the writer and Greiser concerning the campaign against tuberculosis in the Warthegau, and then proceeds to consider the matter in detail; the letter proceeding:

“With the settlement of Germans in all parts of the Gau, an enormous danger has arisen for them * * *. What goes for the Warthegau [* * *] also holds true for the other annexed territories * * *.

“Therefore, something basic must be done soon. One must decide the most efficient way in which this can be done. There are three ways to be taken into consideration:

“1. Special treatment of the seriously ill persons,

“2. Most rigorous isolation of the seriously ill persons,

“3. Creation of a reservation for all TB patients.

“For the planning, attention must be paid to different points of view of a practical, political and psychological nature. Considering it most soberly, the simplest way would be the following: Aided by the X-ray battalion, we could reach the entire population, German and Polish, of the Gau during the first half of 1943. As to the Germans, the treatment and isolation is to be prepared and carried out according to the regulations of Tuberculosis Relief. The approximately 35,000 Poles who are incurable and infectious will be ‘specially treated’. All other Polish consumptives will be subjected to an appropriate cure in order to save them for work and to avoid their causing contagion.”

Blome then proceeds, stating that he has made arrangements for commencement of the “radical procedure”, but suggests that some assurance should be procured that Hitler would agree to the project. The letter then goes on to say—

“I could imagine that the Fuehrer, having some time ago stopped the program in the insane asylums, might at this moment consider a ‘special treatment’ of the incurably sick as unsuitable and irresponsible from a political point of view. As regards the Euthanasia Program it was a question of people of German nationality afflicted with hereditary diseases. Now it is a question of infected sick people of a subjugated nation.”

Blome then voices the opinion that if the program is put into execution, it cannot be kept secret and will be made the basis for much adverse and harmful propaganda both at home and abroad. He suggests accordingly that before the program is commenced all points of view should again be presented to Hitler.

Continuing, Blome writes that if Hitler should forbid the radical proposal suggested by Greiser, three other solutions were open (1) consumptives and incurables could be isolated with their relatives; (2) all infectious consumptives might be strictly isolated in nursing establishments; (3) the consumptives might be resettled in a particular area. If the latter plan were adopted, the sick could reach the assigned territory on foot, and thus save the costs of transportation.

Blome’s letter finally concludes—

“After a proper examination of all these considerations and circumstances, the creation of a reservation, such as the reservations for lepers, seems to be the most practicable solution. Such a reservation should be able to be created in the shortest time by means of the necessary settlement. Within the reservation one could easily set up conditions for the strict isolation of the strongly contagious.

“Even the case of the German consumptives represents an extremely difficult problem for the Gau. But this cannot be overcome, unless the problem of the Polish consumptives is solved at the same time.”

The evidence shows that the letter from Greiser to Himmler, with Blome’s suggestions enclosed, was acknowledged by Himmler on 3 December 1942 with the following final decision:

“Dear Party Comrade Greiser:

“I have received your letter of 21 November 1942. I, too, believe that it would be better to take into consideration the misgivings set forth by Party Member Dr. Blome. In my opinion it is impossible to proceed with the sick persons in the manner intended, especially since, as you have informed me, it will be possible to exploit the practical results of the tests only in six months.

“I suggest you look for a suitable area to which the incurable consumptives can be sent. Besides the incurables, other patients with less severe cases of tuberculosis could quite well be put into this territory, too. This action would also, of course, have to be exploited with the appropriate form of propaganda.

“Before writing you this letter I again thoroughly thought over whether the original idea could not in some way be carried out. However, I am convinced now that it is better to proceed the other way.”

The prosecution maintains that this series of letters which have been referred to establishes the criminal participation of the defendant Blome in the extermination of tubercular Poles. We cannot follow the argument. It is probable that the proposal to isolate tubercular Poles, as suggested by Blome and approved by Himmler, was at least partially carried out; although the record discloses but little with reference to what actually transpired. It may be that in the course of such a program Poles may have died as the result of being uprooted from their homes and sent to isolation stations; but the record contains no direct credible evidence upon the subject. Blome explained from the witness stand his letter to Greiser by saying that it was written in order to prevent the extermination program of tubercular Poles from being put into execution. Certainly, his letter indicates on its face that he opposed the “special treatment” suggested by Greiser.

We cannot say, therefore, that the explanation offered is wholly without substance. It at least raises a reasonable doubt in our minds concerning the matter. Blome knew Hitler and Himmler. He well knew that any objections to “special treatment” based on moral or humanitarian grounds would make but small impact upon the minds of men like these Nazi leaders. He knew, moreover, that before Greiser’s proposal for extermination would be abandoned a plan which appeared to be better must be suggested. If viewed from the standpoint of factual and psychological considerations, it cannot be held that the letter was not well-worded when considered as an attempt to put an end to the plan originally adopted, and to bring the substitution of another plan not so drastic. Whatever may have been its purpose, the record shows that, in this particular, the letter did in fact divert Himmler from his original program and that as a result thereof the extermination plan was abandoned.

EUTHANASIA PROGRAM

Blome is charged with criminal responsibility in connection with the Euthanasia Program, but we are of opinion that the evidence is insufficient to sustain the charge.

BACTERIOLOGICAL WARFARE

The prosecution contends that the evidence in the case established Blome’s guilt in connection with research concerning different forms of bacteriological warfare. Blome, who was plenipotentiary for cancer research in the Reich Research Council, admits that the problem of cancer research was allied with the research commission for protection against biological warfare. He admits further, that he was placed in charge of an institute near Poznan in which the problems of biological warfare were to be investigated, but states that the work being done at the Poznan institute was interrupted in March 1945 by the advance of the Russian army.

This latter fact seems to be confirmed by the evidence. In this connection Schreiber appeared as a witness before the International Military Tribunal. His testimony given there has been received in evidence before this Tribunal. From the testimony it appears that Blome visited Schreiber at the Military Medical Academy, Berlin, during March 1945 and stated to him that he, Blome, had abandoned his institute in Poznan due to the advance of the Russians, but before leaving had attempted to destroy his installations as he feared that the Russians might discover that preparations had been made in the institute for experiments on human beings.

Counsel for the prosecution has brought to our judicial notice a finding by the International Military Tribunal in its judgment wherein it is found that—

“In July 1943 experimental work was begun in preparation for a campaign of bacteriological warfare; Soviet prisoners of war were used in the medical experiments, which more often than not proved fatal.” (See “Trial of the Major War Criminals”, Vol. I, p. 231.)

It is submitted by the prosecution that this finding of the International Military Tribunal, when considered in connection with other evidence in the case, requires this Tribunal to find the defendant Blome guilty under the indictment.

The suggestion is not tenable. It may well be that defendant Blome was preparing to experiment upon human beings in connection with bacteriological warfare, but the record fails to disclose that fact, or that he ever actually conducted experiments. The charge of the prosecution on this item is not sustained.

POLYGAL EXPERIMENTS

The prosecution has introduced evidence which suggests that Blome may be criminally responsible for polygal experiments conducted by Rascher at Dachau, in which Russian prisoners of war were used as experimental subjects. In our view the evidence does no more than raise a strong suspicion; it does not sustain the charge beyond a reasonable doubt.

CONCLUSION

Military Tribunal I finds and adjudges the defendant Kurt Blome not guilty as charged under the indictment and directs that he be released from custody under the indictment when this Tribunal presently adjourns.

RUDOLF BRANDT

Under counts two and three of the indictment the defendant Rudolf Brandt is charged with special responsibility for, and participation in, High-Altitude, Freezing, Malaria, Lost Gas, Sulfanilamide, Bone, Muscle and Nerve Regeneration and Bone Transplantation, Sea-Water, Epidemic Jaundice, Sterilization, and Typhus Experiments. He is also charged under these counts with criminal responsibility for the murder of 112 Jews for the purpose of completing a Skeleton Collection for the Reich University of Strasbourg, for the murder and ill-treatment of tubercular Poles, and for the Euthanasia Program carried out by the German Reich.

Under count four of the indictment he is charged with membership in an organization declared criminal by the judgment of the International Military Tribunal.

The prosecution has abandoned the charge of participation in the bone, muscle and nerve regeneration and bone transplantation experiment; hence, it will not be considered further.

The defendant Rudolf Brandt joined the Nazi Party in 1932. He was commissioned a second lieutenant in the SS in 1935. In approximately ten years he rose to the rank of SS colonel. He is one of the three defendants in the case who is not a physician.

From the commencement of his career in the Nazi organization until his capture by the Allied Forces in 1945 he was directly subordinate to and closely associated with the leader of the SS, Heinrich Himmler, and he had full knowledge of his chief’s personal and official interests and activities.

To Himmler, Rudolf Brandt was first of all an important and trusted clerical assistant. The record shows him to have been an unusually proficient stenographer. That is the road by which he finally arrived at a position of considerable power and authority as personal Referent on Himmler’s Personal Staff, Ministerial Counsellor in the Ministry of the Interior, and a member of the Ahnenerbe. Acting for Himmler during his absences, Rudolf Brandt, in these positions, had a tremendous opportunity to and did exercise personal judgment and discretion in many serious and important matters.

HIGH-ALTITUDE EXPERIMENTS

These experiments extended from March to August 1942. Their details are dealt with elsewhere in this judgment. A portion of the evidence in this specification consists of correspondence between the defendant Rudolf Brandt and various others in the German military service who were personally engaged in, or were closely connected with, the physical details of the experiments performed. The correspondence just previously mentioned was admitted in evidence, is well authenticated, and even standing alone, without additional oral testimony—of which there was also plenty—is deemed amply sufficient to disclose beyond reasonable doubt that except for the sanction and diligent cooperation of the defendant Rudolf Brandt, or someone occupying his position, the high-altitude experiments mentioned in the indictment could not have been conducted.

Taken altogether, the evidence on this item discloses that during the period between March and August 1942, certain medical experiments were conducted at the Dachau concentration camp in Germany for the benefit of the German Air Force, to determine the limits of human endurance and existence at extremely high altitudes. Various human beings, unwillingly, and entirely without their consent, were required and compelled to, and did participate in the aforesaid experiments as subjects thereof. The said nonconsenting subjects were prisoners of war, German civilians and civilians from German occupied territory, whose exact citizenship, in many cases, could not be ascertained. Among the experimental subjects there were numerous deaths, estimated by witnesses at 70 or 80, resulting directly from compulsory participation in the experiments. Exact data on the total fatalities cannot be stated, but there is convincing evidence that during the last day’s operation of the high-altitude experiments, five participating and nonconsenting subjects died as the result thereof. The greater number of the experimental subjects suffered grave injury, torture and ill-treatment.

FREEZING EXPERIMENTS

In this experiment, or series of experiments, Rudolf Brandt is established as an intermediary and necessary aid between Heinrich Himmler, who authorized the work to be done, and those who were appointed by him actually to perform the ruthless task. Evidence is conclusive that Rudolf Brandt at all times knew exactly what experimental processes would be carried out. He knew that the procedure followed was to select from the inmates at Dachau such human subjects as were considered most suitable for experimental purposes. He knew that no consent was ever deemed necessary from the persons upon whom the experiments were to be performed. He knew that among the experimental subjects were non-German nationals, including civilians and prisoners of war.

The exact number of deaths cannot be ascertained from the evidence, but that fatalities occurred among the experimental subjects has been proved beyond a reasonable doubt.

LOST (MUSTARD) GAS EXPERIMENTS

On this specification, an affidavit of the defendant Rudolf Brandt which is confirmed by other evidence reads substantially as follows:

“Towards the end of the year 1939, experiments were conducted at the Sachsenhausen concentration camp on persons who were certainly not all volunteers, in order to ascertain the efficacy of the different treatment of wounds inflicted by Lost gas. Lost is a poisonous gas which produces injurious effects on the epidermis. I think it is generally known as mustard gas. * * * Therefore, experiments were conducted on inmates of concentration camps. As far as I understand, the experiments consisted of inflicting wounds upon various parts of the bodies of the experimental subjects and infecting them thereafter with Lost. Various methods of treatment were applied in order to determine the most effective one * * *.

“In the second half of 1942, Hirt (Dr. August Hirt) together with * * * who served in the Luftwaffe, initiated experiments on inmates of the Natzweiler concentration camp. The inmates for these as well as other experiments were simply chosen by Pohl’s office, the Economic and Administrative Main Office, WVHA. In order to be employed for such purposes, the experiments on human subjects with Lost gas had been carried on during the years 1943 and 1944 in the Sachsenhausen concentration camp as well as in the Natzweiler concentration camp. The result was that some of the inmates died.”

In the course of the gas experiments above referred to, testimony in the record discloses that a considerable amount of correspondence was carried on by persons concerned (except the experimental subjects themselves), and it appears that some, at least, of this was referred to Rudolf Brandt for action, upon which he personally intervened sufficiently to associate himself actively with the conduct of the work being done. And so he must be regarded as criminally responsible.

STERILIZATION EXPERIMENTS

Rudolf Brandt is charged, as in the indictment set forth, with special responsibility under the above heading. The means by which sterilization experiments or processes were to be made or utilized included X-ray treatment, surgery, and drugs.

No specific instances of any drug being actually used have been clearly shown by oral testimony, or exhibits herein submitted in evidence. In reference to the X-ray and surgery methods of sterilization, however, Rudolf Brandt is shown by the evidence to have taken a moving part in the preparation of plans, and in their execution, sufficient to justify the Tribunal in finding his criminal connection therewith. An affidavit executed by the defendant Rudolf Brandt reads as follows:

“Himmler was extremely interested in the development of a cheap, rapid sterilization method which could be used against enemies of Germany, such as the Russians, Poles, and Jews. One hoped thereby not only to defeat the enemy, but to exterminate him. The capacity for work of the sterilized persons could be exploited by Germany, while the danger of propagation would be eliminated. This mass sterilization was part of Himmler’s racial theory; particular time and care were devoted to these sterilization experiments.”

We learn from the record that persons subjected to treatment were “young, well-built inmates of concentration camps who were in the best of health, and these were Poles, Russians, French, and prisoners of war.”

It goes without saying that the work done in conformity with the plans of Himmler, substantially aided by the cooperation of Rudolf Brandt, brought maiming and suffering to great numbers of people.

TYPHUS EXPERIMENTS

Medical experiments ostensibly conducted to benefit Germany in the prevention of typhus fever were carried on in the Natzweiler concentration camp beginning with the year 1942. The details of these experiments have been dealt with elsewhere in this judgment.

In the evidence it is proved that not less than 50 experimental subjects died as a direct result of their participation in these typhus experiments. Persons of all nationalities were used as subjects. Regarding these enterprises, Rudolf Brandt, in his own affidavit, admits that these experimental subjects did not volunteer but were conscripted and compelled to serve without their consent being sought or given.

Inasmuch as information on the typhus experiments, both before and after their performance, was furnished, as a matter of course, to Himmler through Brandt, the defendant’s full knowledge of them is regarded as definitely proven.

Here, again, the managing hand of the defendant is shown. The smooth operation of these experiments is demonstrated to have been contingent upon the diligence with which Rudolf Brandt arranged for the supply of quotas of suitable human experimental material to the physicians at the scene of the experiment.

In view of these proven facts, the defendant Rudolf Brandt must be held and considered as one of the defendants responsible for performance of illegal medical experiments where deaths resulted to the nonconsenting human subjects.

SKELETON COLLECTION

In response to a request by Rudolf Brandt, on 9 February 1942 the defendant Sievers, business manager of the Ahnenerbe, submitted to him certain data on the alleged desirability of securing a Jewish skeleton collection for the Reich University of Strasbourg. The report furnished to the defendant Brandt contained among other things the following:

“By procuring the skulls of the Jewish Bolshevik Commissars, who personified a repulsive yet characteristic humanity, we have the opportunity of obtaining tangible scientific evidence. The actual obtaining and collecting of these skulls without difficulty could be best accomplished by a directive issued to the Wehrmacht in the future to immediately turn over alive all Jewish Bolshevik Commissars to the field police.”

On 27 February 1942, Rudolf Brandt informed defendant Sievers that Himmler would support the enterprise and would place everything necessary at his disposal; and that Sievers should report again in connection with the undertaking.

Testimony and exhibits placed before this Court are abundantly sufficient to show that the plan mentioned was actually put into operation; that not less than 86 people were murdered for the sole purpose of obtaining their skeletons. Much more could be said in reference to this revolting topic, but it would add nothing to the judgment. The fact that Rudolf Brandt showed an initial interest and collaborated in the undertaking is enough to require a finding that he is guilty of murder in connection with the program.

MALARIA, SEA-WATER, AND EPIDEMIC JAUNDICE EXPERIMENTS; AND THE CHARGE OF THE MURDER AND MISTREATMENT OF POLES

It appears to be well established that Himmler sponsored, supported, furthered or initiated each of these enterprises. Doubtless Brandt knew what was going on, and perhaps he helped in the program. The evidence is not sufficient, however, to justify such a finding.

The Tribunal finds that the defendant Rudolf Brandt was an accessory to, ordered, abetted, took a consenting part in, was knowingly connected with plans and enterprises involving, and was a member of an organization or group connected with, the commission of medical experiments on non-German nationals, without their consent, in the course of which experiments murders, brutalities, cruelties, tortures, atrocities, and other inhuman acts were committed; and the murder of no less than 86 non-German Jews for a skeleton collection. To the extent that these crimes were not war crimes they were crimes against humanity.

MEMBERSHIP IN CRIMINAL ORGANIZATION

Under count four of the indictment Rudolf Brandt is charged with being a member of an organization declared criminal by the judgment of the International Military Tribunal, namely, the SS. The evidence shows that Rudolf Brandt became a member of the SS in 1933, and remained in this organization until the end of the war. As a member of the SS he was criminally implicated in the commission of war crimes and crimes against humanity, as charged under counts two and three of the indictment.

An extremely persuasive and interesting brief on behalf of the defendant Rudolf Brandt, filed by his attorney, has received careful attention by this Tribunal. Therein it is urged that Rudolf Brandt’s position under Heinrich Himmler was one of such subordination, his personal character so essentially mild, and he was so dominated by his chief, that the full significance of the crimes in which he became engulfed came to him with a shock only when he went to trial. This plea is offered in mitigation of appalling offenses in which the defendant Brandt is said to have played only an unassuming role.

If it be thought for even a moment that the part played by Rudolf Brandt was relatively unimportant when compared with the enormity of the charges proved by the evidence, let it be said that every Himmler must have his Brandt else the plans of a master criminal would never be put into execution.

The Tribunal, therefore, cannot accept the thesis.

CONCLUSION

Military Tribunal I finds and adjudges that the defendant Rudolf Brandt is guilty under counts two, three and four of the indictment.

MRUGOWSKY

The defendant is charged under counts two and three of the indictment with special responsibility for, and participation in, Freezing, Malaria, Sulfanilamide, Typhus, Poison, Epidemic Jaundice, and Incendiary Bomb Experiments. Charges were made concerning certain other medical experiments, but they have been abandoned by the prosecution.

Mrugowsky joined the NSDAP in 1930 and the SS in 1931. He ultimately rose to the rank of senior colonel in the Waffen SS.

In 1938 Mrugowsky became a member of the staff of the SS medical office, as hygienist. At the beginning of 1939 he founded the Hygiene Bacteriological Testing Station of the SS in Berlin, whose purpose was to combat epidemics in the SS garrison troops of the Waffen SS. In 1940 the station was enlarged and renamed the “Hygiene Institute of the Waffen SS.” Mrugowsky became its chief and at the same time Chief of the Office for Hygiene in the Medical Service of the Waffen SS under Genzken.

In his dual capacity Mrugowsky was answerable to Genzken in all questions concerning epidemic control and hygiene in the Waffen SS, but as Chief of the Hygiene Institute, was military superior and commander of the Institute and its affiliated institutions with power to issue orders.

The Medical Service of the Waffen SS was reorganized on 1 September 1943. Mrugowsky and the Hygiene Institute were transferred from under Genzken and became directly subordinated to Grawitz as Reich Physician SS and Police. By this transfer Mrugowsky became chief hygienist under Grawitz, but remained Chief of the Hygiene Institute.

TYPHUS AND OTHER VACCINE EXPERIMENTS

The details concerning the vaccine experiments conducted at Buchenwald concentration camp have been related elsewhere in this judgment and hence the details need no further discussion.

As pointed out in the case against Handloser, there is evidence in the record that on 29 December 1941 a conference was held in Berlin attended by Mrugowsky at which the decision was reached to begin research tests at Buchenwald to determine the efficacy of egg yolk, and other vaccines as protection against typhus. As a result of the conference, such an experimental station was established at Buchenwald under the direction of Dr. Ding with the defendant Hoven acting as his deputy.

Except for a few tests conducted early in 1942, all experiments were carried out in Block 46—so-called clinical block of the station. In the autumn of 1943 a vaccine production department was established in Block 50 and this also came under the supervision of Dr. Ding-Schuler.

It would burden this judgment unnecessarily to narrate in detail the various tests and experiments carried out by Ding at Buchenwald as a result of the decisions reached at higher levels. All of them conformed to a more or less uniform pattern, with certain groups of inmates being inoculated with vaccines, other groups (known as control groups) being given no immunization, and finally both groups being artificially infected with a virulent virus, and the results noted upon the experimental subjects.

We learn from the Ding diary, the authenticity and reliability of which has been discussed at length in other portions of the judgment, the methods employed, and the results obtained in at least some of the experiments.

For example: In “Typhus vaccination material research series I”, which began on 6 January 1942, 135 inmates were vaccinated with Weigl, Cox-Haagen-Gildemeister, Behring-Normal, or Behring-Strong, vaccines; 10 persons were used for control. On 3 March 1942 all test subjects, including control persons, were artificially infected with virulent virus of Rickettsia-Prowazeki furnished by the Robert Koch Institute. Five deaths occurred; three in the control group and two among the vaccinated subjects.

In “Typhus vaccine, research series II”, from 19 August to 4 September 1942, 40 persons were vaccinated with two different vaccines; 19 persons were used for control. Subsequently all were artificially infected with virulent virus; four deaths among the control persons occurred.

The entries in the diary concerning “Typhus vaccine experimental series VII” read as follows:

“28 May 43-18 June 1943: Carrying out of typhus vaccination for immunization with the following vaccine (1) 20 persons with vaccine ‘Asid’, (2) 20 persons with vaccine ‘Asid Adsorbat’, (3) 20 persons with vaccine ‘Weigl’ of the Institute for Typhus and Virus Research of the High Command, Army (OKH) Krakow (Eyer) * * *. All experimental persons got very serious typhus. 7 Sept. 43: Chart and case history completed. The experimental series was concluded. 53 deaths (18 with ‘Asid’) (18 with ‘Asid Adsorbat’) (9 with ‘Weigl’) (8 control) 9 Sep. 43: Charts and case histories delivered to Berlin. Dr. Ding, SS Sturmbannfuehrer.”

Concerning “Typhus vaccine experimental series VIII” began on 8 March 1944 the following entry appears in the diary:

“Suggested by Colonel M.C. of the Air Corps, Professor Rose (Oberstarzt) the vaccine ‘Kopenhagen’ (Ipsen-Murine-vaccine), produced from mouse liver by the national serum institute in Copenhagen, was tested for its compatibility on humans. 20 persons were vaccinated for immunization by intramuscular injection * * *, 10 persons were contemplated for control and comparison. 4 of the 30 persons were eliminated before the start of the artificial injection because of intermittent sickness * * *. The remaining experimental persons were infected on 16 April 44 by subcutaneous injection of 1/20 cc. typhus sick fresh blood * * *. The following fell sick: 17 persons immunized: 9 medium, 8 seriously; 9 persons control, 2 medium, 7 seriously * * *. 2 June 44: The experimental series was concluded. 13 June 44: Chart and case history completed and sent to Berlin. 6 deaths (3 Kopenhagen) (3 control). Dr. Ding.”

“Typhus vaccine experimental series IX” began on 17 July 1944. Twenty persons were immunized with the vaccine “Weimar” produced by the department for Typhus and Virus Research of the Hygiene Institute of the Waffen SS; and for comparison, another group of 20 persons were immunized with vaccine “Weigl” produced from lice by the Army High Command (OKH) in Cracow [Krakow]. Still another group of 20 persons were used for the control group. On 6 September 1944 the 60 experimental persons were infected with fresh blood “sick with typhus” which was injected into the upper arm. As a result, all experimental persons became sick, some seriously. The narration of this experimental series closes with the cryptic report: “4 Nov 44: Chart and case history completed, 24 deaths (5 ‘Weigl’) (19 Control). Dr. Schuler.”

These entries are but few of the many which we have taken at random from the Ding diary, dealing with the sordid murders of defenseless victims in the name of Nazi medical science. Many more could be set forth if time and space permitted. An analysis of the Ding diary discloses that no less than 729 concentration camp inmates were experimented on with typhus, at least 154 of whom died. And this toll of death takes no account of the certain demise of scores of so-called “passage” persons who were artificially infected with typhus for the sole purpose of having at hand an ever-ready supply of fresh blood “sick with typhus” to be used to infect the experimental subjects.

There is some evidence to the effect that the camp inmates used as subjects in the first series submitted to being used as experimental subjects after being told that the experiments were harmless and that additional food would be given to volunteers. But these victims were not informed that they would be artificially infected with a highly virulent virus nor that they might die as a result. Certainly no one would seriously suggest that under the circumstances these men gave their legal consent to act as subjects. One does not ordinarily consent to be the special object of a murder, and if one did, such consent would not absolve his slayer.

Later, when news of what was happening in Block 46 became generally known in the camp, it was no longer possible to delude the inmates into offering themselves as victims. Thereupon, the shabby pretense of seeking volunteers was dropped and the experimental subjects were taken arbitrarily from a list of inmates prepared by the camp administration.

Other experiments were also carried out in Block 46 of Buchenwald to test typhoid, para-typhoid A and B, and yellow fever.

As in the typhus experiments, nonconsenting human subjects were used, including not only German criminal prisoners but also Poles, Russians, and Frenchmen, both civilians and prisoners of war.

In all the typhus experiments, death resulted to many experimental subjects. As to each of these experiments the evidence is overwhelming that they were carried out by Ding under the orders or authority of the defendant Mrugowsky.

POISON EXPERIMENTS

On 11 September 1944 Mrugowsky, Ding, and a certain Dr. Widmann carried out an experiment with aconitin nitrate projectiles in the Sachenshausen concentration camp. Details of the experiment are fully explained by a “Top Secret” report of the sordid affair in a letter written by the defendant Mrugowsky to the Criminological Institute, Berlin. The letter follows:

“Subject: Experiments with aconitin nitrate projectiles.

To the Criminological Institute

Attn: Dr. Widmann

Berlin

“In the presence of SS Strumbannfuehrer Dr. Ding, Dr. Widmann, and the undersigned, experiments with aconitin nitrate projectiles were conducted on 11 September 1944 on 5 persons who had been condemned to death. The projectiles in question were of a 7.65-mm caliber, filled with crystalized poison. The experimental subjects, in a lying position, were each shot in the upper part of the left thigh. The thighs of two of them were cleanly shot through. Even afterwards, no effect of the poison was to be observed. These two experimental subjects were therefore exempted.

“The entrance of the projectile did not show any peculiarities. Evidently, the arteria femolaries of one of the subjects was injured. A light stream of blood issued from the wound. But the bleeding stopped after a short time. The loss of blood was estimated as having been at the most ¾ of a liter, and consequently was on no account fatal.

“The symptoms of the condemned three showed a surprising similarity. At first no peculiarities appeared. After 20-25 minutes a motor agitation and a slight ptyalism set in but stopped again. After 40 to 45 minutes a stronger salivation set in. The poisoned persons swallowed repeatedly, but later the flow of saliva became so strong that it could not even be overcome by swallowing. Foamy saliva flowed from their mouths. Then choking and vomiting set in.

“After 58 minutes the pulse of two of them could no longer be felt. The third had a pulse rate of 76. After 65 minutes his blood pressure was 90/60. The sounds were extremely low. A reduction of blood pressure was evident.

“During the first hour of the experiment the pupils did not show any changes. After 78 minutes the pupils of all three showed a medium dilation together with a retarded light reaction. Simultaneously, maximum respiration with heavy breathing inhalations set in. This subsided after a few minutes. The pupils contracted again and their reaction improved. After 65 minutes the patellar and achilles tendon reflexes of the poisoned subjects were negative. The abdominal reflexes of two of them were also negative. The upper abdominal reflexes of the third were still positive, while the lower were negative. After approximately 90 minutes, one of the subjects again started breathing heavily, this was accompanied by an increasing motor unrest. Then the heavy breathing changed into a flat, accelerated respiration, accompanied by extreme nausea. One of the poisoned persons tried in vain to vomit. To do so he introduced four fingers of his hand up to the knuckles into his throat, but nevertheless could not vomit. His face was flushed.

“The other two experimental subjects had already early shown a pale face. The other symptoms were the same. The motor unrest increased so much that the persons flung themselves up, then down, rolled their eyes, and made meaningless motions with their hands and arms. Finally the agitation subsided, the pupils dilated to the maximum, and the condemned lay motionless. Masseter spasms and urination were observed in one case. Death occurred 121, 123 and 129 minutes after entry of the projectile.

Summary. The projectiles filled with approximately 38 mg. of aconitin nitrate in solid form had, in spite of only insignificant injuries, a deadly effect after two hours. Poisoning showed 20 to 25 minutes after injury. The main reactions were: salivation, alteration of the pupils, negative tendon reflexes, motor unrest, and extreme nausea.

Mrugowsky

“SS Lecturer Oberfuehrer and Office Chief.”

The defendant attempts to meet this charge with the defense that the subjects used in this experiment were persons who had been condemned to death and that he, Mrugowsky, had been appointed as their legal executioner.

One need but read the letter introduced in evidence to arrive at the conclusion that the defense has no validity. This was not a legal execution carried out in conformance with the laws and rules of war, but a criminal medical experiment wherein wounds were inflicted on prisoners with the sole end in view of determining the effectiveness of poisoned bullets as a means of taking life. The hapless victims of this dastardly torture were Russian prisoners of war, entitled to the protection afforded by the laws of civilized nations. As has been said, in substance, in this judgment: While under certain specific conditions the rules of land warfare may recognize the validity of an execution by shooting, it will not under any circumstances countenance the infliction of death by maiming or torture.

SULFANILAMIDE EXPERIMENTS

That Mrugowsky rendered assistance to Gebhardt in the sulfanilamide experiments at Ravensbrueck is plainly shown by the record. Mrugowsky put his laboratory and co-workers at Gebhardt’s disposal. He furnished the cultures for the infections. It was on the suggestion of Mrugowsky’s office that wood shavings and ground glass were placed in the wounds of the subjects so that battlefield wounds would be more closely simulated.

GAS OEDEMA EXPERIMENTS

Toward the end of 1942 a conference was held in the Military Medical Academy, Berlin, to discuss the effects of gas oedema serum on wounded persons. During the conference, several cases were reported in which wounded soldiers who had received gas oedema serum injections in large quantities suddenly died without apparent reason. Mrugowsky, who participated in the conference, expressed the possibility that perhaps the deaths had been due to the phenol content of the serum. As a step toward solving the problem Mrugowsky ordered Dr. Ding-Schuler, his subordinate, to take part in a euthanasia killing with phenol and to report on the results in detail.

In pursuance of the order given, Dr. Ding and the defendant Hoven killed some of the concentration camp inmates at Buchenwald with phenol injections and Ding reported his findings to his superior officer, Mrugowsky, as required by the order.

FREEZING, INCENDIARY BOMB, AND EPIDEMIC JAUNDICE

EXPERIMENTS

As to these items the Tribunal is of the view that the evidence is insufficient to sustain the charges.

It has been proved beyond a reasonable doubt that the defendant Mrugowsky was a principal in, accessory to, ordered, abetted, took a consenting part in, and was knowingly connected with plans and enterprises involving medical experiments on non-German nationals, without their consent, in the course of which experiments, murders, brutalities, cruelties, tortures, atrocities, and other inhuman acts were committed. To the extent that these crimes were not war crimes they were crimes against humanity.

COUNT FOUR

Under count four of the indictment, the defendant is charged with being a member of an organization declared criminal by the International Military Tribunal, namely, the SS.

The evidence proves that Mrugowsky joined the NSDAP in 1930 and voluntarily became a member of the Waffen SS in 1931. He remained in these organizations throughout the war. As a member of the Waffen SS, he was criminally implicated in the commission of war crimes and crimes against humanity as discussed in this judgment.

CONCLUSION

Military Tribunal I finds and adjudges that the defendant Joachim Mrugowsky is guilty under counts two, three, and four of the indictment.

POPPENDICK

The defendant Poppendick is charged under counts two and three of the indictment with personal responsibility for, and participation in, High-Altitude, Freezing, Malaria, Sulfanilamide, Sea-Water, Epidemic Jaundice, Sterilization, Typhus, and Poison experiments. He is charged under count four with being a member of an organization declared criminal by the judgment of the International Military Tribunal.

The charges with reference to high-altitude and poison experiments have been abandoned by the prosecution and hence will not be considered further.

Poppendick studied medicine at several German universities from 1921 to 1926 and passed his state examination in December of the latter year. He joined the NSDAP on 1 March 1932 and the SS on 1 July following. He rose to the rank of lieutenant colonel in the SS and to the rank of senior colonel in the Waffen SS. He was also a member of a Nazi Physicians’ Association. In August 1935 he was appointed as a physician in the Main Race and Settlement Office in Berlin and became chief physician of that office in 1941. He held the latter appointment until the fall of 1944.

From 1 September 1939 until sometime in 1941, Poppendick was on active duty in the army as a surgeon. During the latter year he resumed his duties with the Race and Settlement Office in Berlin. Between 1939 and 1943, he performed some duties as a member of the staff of the Reich Physician SS and Police, Dr. Grawitz, taking care of special assignments.

In the fall of 1943 Poppendick was made Chief of the Personal Office of Grawitz, which position he retained until the end of the war.

FREEZING EXPERIMENTS

The evidence is that Poppendick gained knowledge of the freezing experiments conducted by Rascher at Dachau, as the result of a conference held between Rascher, Grawitz, and Poppendick on 13 January 1943 for the purpose of discussing certain phases of the research. The evidence does not prove beyond a reasonable doubt that Poppendick was criminally connected with these experiments.

MALARIA EXPERIMENTS

The prosecution contends that Poppendick is criminally responsible for the malaria experiments conducted by Dr. Schilling at Dachau. Dr. Ploetner was engaged in the malaria experiments as a subordinate of Schilling. Sievers’ Diary, which is in evidence, contains a notation that on 23 May 1944 Grawitz, Poppendick, Ploetner, and Sievers held a conference, which had probably been arranged by Poppendick three days previously by telephone. The subject of the conference is not disclosed by the diary entry, but it appears elsewhere in the diary that on 31 May 1944 Grawitz sanctioned Ploetner’s collaboration with Schilling.

Poppendick testified as a witness on his own behalf that he had heard that Schilling was carrying on special investigations at Dachau concerning immunity from malaria. He stated further that his knowledge of the nature of the investigations went no further. The record does not contradict his testimony.

The Tribunal finds that the evidence does not disclose beyond a reasonable doubt that Poppendick was criminally connected with the malaria experiments.

SULFANILAMIDE EXPERIMENTS

Poppendick attended the Third Meeting of Consulting Surgeons at the Military Medical Academy, Berlin, and heard lectures by Gebhardt and Fischer concerning the sulfanilamide experiments, which have been discussed elsewhere in this judgment. Under date of 7 September 1942 he signed a certificate to a true copy of a report, concerning sulfanilamide experiments which had been conducted at Ravensbrueck, made by Gebhardt to Grawitz. Grawitz forwarded the report, or a certified copy thereof, to Himmler.

We are of the opinion that Poppendick had knowledge of the criminal nature of the experiments conducted by Gebhardt and Fischer at Ravensbrueck, but the defendant’s criminal connection with any such experiments has not been proved by the evidence.

SEA-WATER EXPERIMENTS

The evidence does not disclose beyond a reasonable doubt that Poppendick was criminally implicated in these experiments.

EPIDEMIC JAUNDICE EXPERIMENTS

The evidence does not disclose beyond a reasonable doubt that Poppendick was criminally implicated in these experiments.

STERILIZATION EXPERIMENTS

Poppendick was Chief Physician of the Main Race and Settlement Office. The judgment of the International Military Tribunal found that this office was “active in carrying out schemes for Germanization of occupied territories according to the racial principles of the Nazi Party and were involved in the deportation of Jews and other foreign nationals.” (See the “Trial of the Major War Criminals,” Vol. 1, p. 270.)

Testifying before this Tribunal, Poppendick stated that the Nazi racial policy was twofold in aspect; one policy being positive, the other, negative in character. The positive policy included many matters, one being the encouragement of German families to produce more children. The negative policy concerned the sterilization and extermination of non-Aryans as well as other measures to reduce the non-Aryan population. According to Poppendick’s testimony, he was not concerned with the execution of negative, but only with positive measures.

By letter dated 29 May 1941 Grawitz wrote to Himmler concerning a conference held on 27 May 1941 at which Dr. Clauberg was present, and discussed his “new method of sterilization of inferior women without an operation.”

Poppendick by letter dated 4 June 1941, which referred to a previous telephone conversation with Grawitz, wrote Rudolf Brandt stating that he was enclosing “the list of physicians who are prepared to perform the treatment of sterility” as requested by Himmler. The list referred to is evidently the same as was contained in a letter from Grawitz to Himmler, dated 30 May 1941, which stated: “In the following, I submit a list of specialists in charge of the treatment of sterility in women according to the method of Professor Clauberg.”

It is shown by the evidence that Clauberg later carried out sterilization experiments on Jewesses at Auschwitz. Similar experiments were carried out in other concentration camps by SS doctors who were subordinate to Grawitz. It is evident that Poppendick knew of these sterilization experiments, although it is not shown that he was criminally connected with them.

TYPHUS EXPERIMENTS

It is not clear from the evidence that Poppendick was criminally connected with, or had knowledge of, the nature of the typhus experiments at Buchenwald, or the type of subjects upon which they were conducted.

INCENDIARY BOMB EXPERIMENTS

There is some evidence in the record to the effect that after incendiary bomb experiments were completed at Buchenwald, reports of the experiments were forwarded to Poppendick and Mrugowsky. It is evident that through the reports Poppendick gained knowledge of the nature of the experiments, but the record fails to show criminal responsibility of the defendant in connection therewith.

PHLEGMON EXPERIMENTS

The evidence clearly proves Poppendick’s knowledge of these experiments, but it fails to show the defendant’s criminal connection therewith.

POLYGAL EXPERIMENTS

The record does not show Poppendick’s knowledge of or connection with these experiments.

HORMONE EXPERIMENTS

The prosecution contends that the evidence shows Poppendick’s criminal responsibility in connection with a series of experiments conducted at Buchenwald by Dr. Varnet, a Danish physician who claimed to have discovered a method of curing homosexuality by transplantation of an artificial gland.

Under date 15 July 1944, Poppendick wrote to Dr. Ding at the concentration camp Buchenwald as follows:

“By request of the Reichsfuehrer SS the Danish doctor SS Sturmbannfuehrer Dr. Varnet has been given opportunity to continue his hormone research with the SS, particularly the development of his artificial gland. The Reichsfuehrer SS anticipates certain results from the treatment of homosexuals with Vamet’s artificial gland. The technical preparations have come to such a point that experiments on human beings can be started within a reasonable space of time.

“As SS Standartenfuehrer Dr. Lolling informed me, the concentration camp Weimar-Buchenwald has been directed to make available 5 prisoners for SS Sturmbannfuehrer Varnet’s experiments. These prisoners will be made available to SS Sturmbannfuehrer Varnet by the camp physician at any time.

“SS Sturmbannfuehrer Varnet intends to go to Buchenwald shortly in order to make certain necessary preliminary tests on these prisoners. In case there will be special laboratory tests, you are requested to assist Varnet within the scope of your possibilities.

“Particulars on Varnet’s research were sent today to the camp physician of Weimar-Buchenwald for his information.”

There is evidence that during the summer of 1944 Dr. Varnet conducted the experiments referred to in Poppendick’s letter. However, the nationality of the prisoners used for the experiments is not shown, nor has it been proved beyond a reasonable doubt that the experiments were harmful or caused death, or injury to the experimental subjects.

We have given careful consideration to the evidence concerning the charges made by the prosecution against the defendant Poppendick. Certainly the evidence raises a strong suspicion that he was involved in the experiments. He at least had notice of them and of their consequences. He knew also that they were being carried on by the SS, of which he was and remained a member.

But this Tribunal, however, cannot convict upon mere suspicion; evidence beyond a reasonable doubt is necessary. The evidence is insufficient to sustain guilt under counts two and three of the indictment.

MEMBERSHIP IN A CRIMINAL ORGANIZATION

The defendant Poppendick is charged with membership in an organization declared criminal by the judgment of the International Military Tribunal, namely, the SS. Poppendick joined the SS in July 1932. He remained in the SS voluntarily throughout the war, with actual knowledge of the fact that that organization was being used for the commission of acts now declared criminal by Control Council Law No. 10. He must, therefore, be found guilty under count four of the indictment.

With reference to the nature of punishment which should be imposed under such circumstances, the International Military Tribunal has made the following recommendation:

“1. That so far as possible throughout the four zones of occupation in Germany the classifications, sanctions, and penalties be standardized. Uniformity of treatment so far as practical should be a basic principle. This does not, of course, mean that discretion in sentencing should not be vested in the Court; but the discretion should be within fixed limits appropriate to the nature of the crime.

“2. Law No. 10 * * * leaves punishment entirely to the discretion of the trial court even to the extent of inflicting the death penalty.

“The De-Nazification Law of 5 March 1946, however, passed for Bavaria, Greater Hesse, and Wuerttemberg-Baden, provides definite sentences for punishment in each type of offense. The Tribunal recommends that in no case should punishment imposed under Law No. 10 upon any members of an organization or group declared by the Tribunal to be criminal exceed the punishment fixed by the De-Nazification Law. No person should be punished under both laws.”

(See “Trial of the Major War Criminals,” Vol. 1, p. 257.)

In weighing the punishment, if any, which should be meted out to the defendant for his guilt by reason of the charge contained in count four of the indictment, this Tribunal will give such consideration to the recommendations of the International Military Tribunal as may under the premises seem meet and proper.

CONCLUSION

Military Tribunal I finds the defendant Helmut Poppendick not guilty under counts two and three of the indictment, and finds and adjudges the defendant Helmut Poppendick guilty as charged in the fourth count of the indictment.

SIEVERS

The defendant Sievers is charged under counts two and three of the indictment with special responsibility for, and participation in, High-Altitude, Freezing, Malaria, Lost Gas, Sea-Water, Epidemic Jaundice, and Typhus Experiments, and with extermination of Jews to complete a skeleton collection. Under count four of the indictment, he is charged with being a member of an organization declared criminal by the judgment of the International Military Tribunal, namely, the SS.

The prosecution has abandoned the charge of participation in the Epidemic Jaundice experiments, and hence, this charge will not be considered further.

Sievers is one of the three defendants who are not physicians. He joined the NSDAP in 1929 and renewed his membership in the Nazi Party in 1933. He joined the SS at the end of 1935 on the suggestion of Himmler. In this organization he attained the rank of a Standartenfuehrer (colonel).

From 1 July 1935 until the war ended, Sievers was a member of Himmler’s personal staff and Reich Business Manager of the Ahnenerbe Society. According to a statute of 1 January 1939, the purpose of the Ahnenerbe was to support scientific research concerning the culture and heritage of the Nordic race. The Board of Directors was composed of Himmler as president, Dr. Wuest as curator, and Sievers as the business manager. Sievers was responsible for the business organization administration and the budget of the Ahnenerbe. The place of business was Berlin. Sievers supported and participated in the medical experiments which are the subject of the indictment, primarily through the Institute of Military Scientific Research which was established by order of Himmler dated 7 July 1942 and was administratively attached to the Ahnenerbe.

On 1 January 1942 Himmler ordered the establishment of an entomological institute; in March 1942 the Institute Dr. Rascher in Dachau; and in the first month of the year 1942, the Institute Dr. Hirt, at Strasbourg. These subsequently became part of the Institute for Military Scientific Research.

Sievers was, for all practical purposes, the acting head of the Ahnenerbe. In this capacity he was subordinated to Himmler and regularly reported to him on the affairs of this Society. The top secret correspondence of Himmler concerning the Ahnenerbe was sent to Sievers. The charter of the Ahnenerbe defines Sievers’ duties as follows:

“The Reich Business Manager handles the business affairs of the community; he is in charge of the business organization and administration. He is responsible for the drawing up of the budget and for the administration of the treasury.”

Sievers was responsible for the entire administrative problems of the secretary’s office, bookkeeping and treasury. Besides that he also had to manage the Ahnenerbe publishing house. In June 1943 Professor Dr. Mentzel, who among other things was Chief of the Business Managing Advisory Council of the Reich Research Council, appointed Sievers as his deputy. By this act Sievers did not become a member of the Reich Research Council but held only an honorary position.

In a letter to the defendant Rudolf Brandt, dated 28 January 1943, Sievers defines his position as Reich Business Manager of the Ahnenerbe as follows:

“My duty merely consists in smoothing the way for the research men and seeing that the tasks ordered by the Reichsfuehrer SS are carried out in the quickest possible way. On one thing I certainly can form an opinion; that is, on who is doing the quickest job.”

Sievers received orders directly from Himmler on matters of research assignments for the Ahnenerbe and he reported directly to Himmler on such experiments. Sievers devoted his efforts to obtaining the funds, materials, and equipment needed by the research workers. The materials obtained by Sievers included concentration camp inmates to be used as experimental subjects. When the experiments were under way, Sievers made certain that they were being performed in a satisfactory manner. In this connection, Sievers necessarily exercised his own independent judgment and had to familiarize himself with the details of such assignments.

HIGH-ALTITUDE EXPERIMENTS

The details of these experiments are discussed in other portions of this judgment. Sievers’ activities in the high-altitude experiments are revealed clearly by the evidence. Rascher, in a letter to Himmler dated 5 April 1942, states as follows:

“SS Obersturmbannfuehrer Sievers took a whole day off to watch some of the interesting standard experiments and may have given you a brief report * * * I am very much indebted to Obersturmbannfuehrer Sievers as he has shown a very active interest in my work in every respect.”

Sievers admitted that he reported to Himmler about his visit to Dachau. On the basis of the reports of Sievers and Rascher, Himmler authorized Rascher to continue the high-altitude experiments in Dachau, in the course of which the evidence shows that 180 to 200 inmates were experimented upon; that 70 to 80 of them died. Rascher became associated with the Ahnenerbe in March 1942, and during the entire time covered by the period of the high-altitude experiments, Rascher was attached to the Ahnenerbe and performed the high-altitude experiments with its assistance. On 20 July 1942, when the final report on high-altitude experiments was submitted to Himmler, Rascher’s name appeared on the letterhead of the Ahnenerbe Institute for Military Scientific Research as shown by the cover letter, and the inclosed report bore the statement that the experiments had been carried out in conjunction with the research and instruction association “Das Ahnenerbe”. Sievers had actual knowledge of the criminal aspects of the Rascher experiments. He was notified that Dachau inmates were to be used. He himself inspected the experiments. Sievers admitted that Rascher told him that several died as a result of the high-altitude experiments.

Under these facts Sievers is specially chargeable with the criminal aspects of these experiments.

FREEZING EXPERIMENTS

Before the high-altitude experiments had actually been completed, freezing experiments were ordered to be performed at Dachau. They were conducted from August 1942 to the early part of 1943 by Holzloehner, Finke and Rascher, all of whom were officers in the Medical Services of the Luftwaffe. Details of the freezing experiments have been given elsewhere in this judgment.

In May 1943 Rascher was transferred to the Waffen SS and then proceeded alone to conduct freezing experiments in Dachau until May 1945. Rascher advised the defendant Rudolf Brandt that Poles and Russians had been used as subjects.

The witness Neff testified that the defendant Sievers visited the experimental station quite frequently during the freezing experiments. He testified further that in September 1942 he received orders to take the hearts and lungs of 5 experimental subjects killed in the experiments to Professor Hirt in Strasbourg for further scientific study; that the travel warrant for the trip was made out by Sievers; and that the Ahnenerbe Society paid the expenses for the transfer of the bodies. One of the 5 experimental subjects killed was a Dutch citizen.

Neff’s testimony is corroborated in large part by the affidavits of the defendants Rudolf Brandt and Becker-Freyseng, by the testimony of the witnesses Lutz, Michalowsky and Vieweg, and by the documentary evidence in the record. In the Sievers’ diary, there are numerous instances of Sievers’ activities in the aid of Rascher. On 1 February 1943 Sievers noted efforts in obtaining apparatus, implements and chemicals for Rascher’s experiments. On 6 and 21 January 1944 Sievers noted the problem of location. Rascher reported to Sievers periodically concerning the status and details of the freezing experiments.

It is plain from the record that the relationship of Sievers and Rascher in the performance of freezing experiments required Sievers to make the preliminary arrangements for the performance of the experiments to familiarize himself with the progress of the experiments by personal inspection, to furnish necessary equipment and material, including human beings used during the freezing experiments, to receive and make progress reports concerning Rascher, and to handle the matter of evaluation and publication of such reports. Basically, such activities constituted a performance of his duties as defined by Sievers in his letter of 28 January 1943 to Rudolf Brandt, in which he stated that he smoothed the way for research workers and saw to it that Himmler’s orders were carried out.

Under these facts Sievers is chargeable with the criminal activities in these experiments.

MALARIA EXPERIMENTS

Details of these experiments are given elsewhere in this judgment. These experiments were performed at Dachau by Schilling and Ploetner. The evidence shows that Sievers had knowledge of the nature and purpose of these criminal enterprises and supported them in his official position.

LOST GAS EXPERIMENTS

These experiments were conducted in the Natzweiler concentration camp under the supervision of Professor Hirt of the University of Strasbourg. The Ahnenerbe Society and the defendant Sievers supported this research on behalf of the SS. The arrangement for the payment of the research subsidies of the Ahnenerbe was made by Sievers. The defendant Sievers participated in these experiments by actively collaborating with the defendants Karl Brandt and Rudolf Brandt and with Hirt and his principal assistant, Dr. Wimmer. The record shows that Sievers was in correspondence with Hirt at least as early as January 1942, and that he established contact between Himmler and Hirt.

In a letter of 11 September 1942 to Gluecks, Sievers wrote that the necessary conditions existed in Natzweiler “for carrying out our military scientific research work”. He requested that Gluecks issue the necessary authorization for Hirt, Wimmer, and Kieselbach to enter Natzweiler, and that provision be made for their board and accommodations. The letter also stated:

“The experiments which are to be performed on prisoners are to be carried out in four rooms of an already existing medical barrack. Only slight changes in the construction of the building are required, in particular the installation of the hood which can be produced with very little material. In accordance with attached plan of the construction management at Natzweiler, I request that necessary orders be issued to same to carry out the reconstruction. All the expenses arising out of our activity at Natzweiler will be covered by this office.”

In a memorandum of 3 November 1942 to the defendant Rudolf Brandt, Sievers complained about certain difficulties which had arisen in Natzweiler because of the lack of cooperation from the camp officials. He seemed particularly outraged by the fact that the camp officials were asking that the experimental prisoners be paid for. A portion of the memorandum follows:

“When I think of our military research work conducted at the concentration camp Dachau, I must praise and call special attention to the generous and understanding way in which our work was furthered there and to the cooperation we were given. Payment of prisoners was never discussed. It seems as if at Natzweiler they are trying to make as much money as possible out of this matter. We are not conducting these experiments, as a matter of fact, for the sake of some fixed scientific idea, but to be of practical help to the armed forces and beyond that, to the German people in a possible emergency.”

Brandt was requested to give his help in a comradely fashion in setting up the necessary conditions at Natzweiler. The defendant Rudolf Brandt replied to this memorandum on 3 December 1942 and told Sievers that he had had occasion to speak to Pohl concerning these difficulties, and that they would be remedied.

The testimony of the witness Holl was that approximately 220 inmates of Russian, Polish, Czech, and German nationality were experimented upon by Hirt and his collaborators, and that approximately 50 died. None of the experimental subjects volunteered. During the entire period of these experiments, Hirt was associated with the Ahnenerbe Society.

In early 1944 Hirt and Wimmer summarized their findings from the Lost experiments in a report entitled “Proposed Treatment of Poisoning Caused by Lost.” The report was described as from the Institute for Military Scientific Research, Department H of the Ahnenerbe, located at the Strasbourg Anatomical Institute. Light, medium, and heavy injuries due to Lost gas are mentioned. Sievers received several copies of this report. On 31 March 1944, after Karl Brandt had received a Fuehrer Decree giving him broad powers in the field of chemical-warfare, Sievers informed Brandt about Hirt’s work and gave him a copy of the report. This is proved by Sievers’ letter to Rudolf Brandt on 11 April 1944. Karl Brandt admitted that the wording of the report made it clear that experiments had been conducted on human beings.

Sievers testified that on 25 January 1943, he went to Natzweiler concentration camp and consulted with the camp authorities concerning the arrangements to be made for Hirt’s Lost experiments. These arrangements included the obtaining of laboratories and experimental subjects. Sievers testified that the Lost experiments were harmful. On the visit of 25 January 1943, Sievers saw ten persons who had been subjected to Lost experiments and watched Hirt change the bandages on one of the persons. Sievers testified that in March 1943 he asked Hirt whether any of the experimental subjects had suffered harm from the experiments and was told by Hirt that two of the experimental subjects had died due to other causes.

It is evident that Sievers was criminally connected with these experiments.

SEA-WATER EXPERIMENTS

These experiments were conducted at Dachau from July through September 1944. Details of these experiments are explained elsewhere in the judgment.

The function of the Ahnenerbe in the performance of sea-water experiments conducted at Dachau from July through September 1944 was chiefly in connection with the furnishing of space and equipment for the experiments. Sievers made these necessary arrangements on behalf of the Ahnenerbe. As a result of Schroeder’s request to Himmler through Grawitz for permission to perform the sea-water experiments on inmates in Dachau, Himmler directed on 8 July 1944 that the experiments be made on gypsies and three other persons with other racial qualities as control subjects. Sievers was advised by Himmler’s office of the above authorization for experiments at the Rascher station at Dachau.

On 27 June 1944, Rascher was replaced by Ploetner as head of the Ahnenerbe Institute for Military Scientific Research at Dachau. Sievers, on 20 July, went to Dachau and conferred with Ploetner of the Ahnenerbe Institute and the defendant Beiglboeck, who was to perform the experiments, concerning the execution of the sea-water experiments and the availability of working space for them. Sievers agreed to supply working space in Ploetner’s department and at the Ahnenerbe Entomological Institute.

On 26 July 1944, Sievers made a written report to Grawitz concerning details of his conference at Dachau. Sievers wrote that 40 experimental persons could be accommodated at “our” research station, that the Ahnenerbe would supply a laboratory, and that Dr. Ploetner would give his assistance, help, and advice to the Luftwaffe physicians performing the experiments. Sievers also stated the number and assignment of the personnel to be employed, estimating that the work would cover a period of three weeks and designated 23 July 1944 as the date of commencement, provided that experimental persons were available and the camp commander had received the necessary order from Himmler. In conclusion, Sievers expressed his hope that the arrangements which he had made would permit a successful conduct of the experiments and requested that acknowledgment be made to Himmler as a participant in the experiments.

In his testimony Sievers admitted that he had written the above letter and had conferred with Beiglboeck at Dachau. As the letter indicates, Sievers knew that concentration camp inmates were to be used.

Sievers had knowledge of and criminally participated in sea-water experiments.

TYPHUS EXPERIMENTS

Detailed description of these experiments is contained elsewhere in this judgment. Sievers participated in the criminal typhus experiments conducted by Haagen on concentration camp inmates at Natzweiler by making the necessary arrangements in connection with securing experimental subjects, handling administrative problems incident to the experiments, and by furnishing the Ahnenerbe station with its equipment in Natzweiler for their performance.

On 16 August 1943, when Haagen was preparing to transfer his typhus experiments from Schirmeck to Natzweiler, he requested Sievers to make available a hundred concentration camp inmates for his research. This is seen from a letter of 30 September 1943 from Sievers to Haagen in which he states that he will be glad to assist, and that he is accordingly contacting the proper source to have the “desired personnel” placed at Haagen’s disposal. As a result of Sievers’ efforts, a hundred inmates were shipped from Auschwitz to Natzweiler for Haagen’s experiments. These were found to be unfit for experimentation because of their pitiful physical condition. A second group of one hundred was then made available. Some of these were used by Haagen as experimental subjects.

That the experiments were carried out in the Ahnenerbe experimental station in Natzweiler is proved by excerpts from monthly reports of the camp doctor in Natzweiler. A number of deaths occurred among non-German experimental subjects as a direct result of the treatment to which they were subjected.

POLYGAL EXPERIMENTS

Evidence has been introduced during the course of the trial to show that experiments to test the efficacy of a blood coagulant “polygal” were conducted on Dachau inmates by Rascher. The Sievers’ diary shows that the defendant had knowledge of activities concerning the production of polygal, and that he lent his support to the conduct of the experiments.

JEWISH SKELETON COLLECTION

Sievers is charged under the indictment with participation in the killing of 112 Jews who were selected to complete a skeleton collection for the Reich University of Strasbourg.

Responding to a request by the defendant Rudolf Brandt, Sievers submitted to him on 9 February 1942 a report by Dr. Hirt of the University of Strasbourg on the desirability of securing a Jewish skeleton collection. In this report, Hirt advocated outright murder of “Jewish Bolshevik Commissars” for the procurement of such a collection. On 27 February 1942, Rudolf Brandt informed Sievers that Himmler would support Hirt’s work and would place everything necessary at his disposal. Brandt asked Sievers to inform Hirt accordingly and to report again on the subject. On 2 November 1942 Sievers requested Brandt to make the necessary arrangements with the Reich Main Security Office for providing 150 Jewish inmates from Auschwitz to carry out this plan. On 6 November, Brandt informed Adolf Eichmann, the Chief of Office IV B/4 (Jewish Affairs) of the Reich Main Security Office to put everything at Hirt’s disposal which was necessary for the completion of the skeleton collection.

From Sievers’ letter to Eichmann of 21 June 1943, it is apparent that SS Hauptsturmfuehrer Beger, a collaborator of the Ahnenerbe Society, carried out the preliminary work for the assembling of the skeleton collection in the Auschwitz concentration camp on 79 Jews, 30 Jewesses, 2 Poles, and 4 Asiatics. The corpses of the victims were sent in three shipments to the Anatomical Institute of Hirt in the Strasbourg University.

When the Allied Armies were threatening to overrun Strasbourg early in September 1944, Sievers dispatched to Rudolf Brandt the following teletype message:

“Subject: Collection of Jewish Skeletons.

“In conformity with the proposal of 9 February 1942 and with the consent of 23 February 1942 * * * SS Sturmbannfuehrer Professor Hirt planned the hitherto missing collection of skeletons. Due to the extent of the scientific work connected herewith, the preparation of the skeletons is not yet concluded. Hirt asks with respect to the time needed for 80 specimens, and in case the endangering of Strasbourg has to be reckoned with, how to proceed with the collection situated in the dissecting room of the anatomical institute. He is able to carry out the maceration and thus render them irrecognizable. Then, however, part of the entire work would have been partly done in vain, and it would be a great scientific loss for this unique collection, because hominit casts could not be made afterwards. The skeleton collection as such is not conspicuous. Viscera could be declared as remnants of corpses, apparently left in the anatomical institute by the French and ordered to be cremated. Decision on the following proposals is requested:

“1. Collection can be preserved.

“2. Collection is to be partly dissolved.

“3. Entire collection is to be dissolved.

“Sievers”

The pictures of the corpses and the dissecting rooms of the Institute, taken by the French authorities after the liberation of Strasbourg, point up the grim story of these deliberate murders to which Sievers was a party.

Sievers knew from the first moment he received Hirt’s report of 9 February 1942 that mass murder was planned for the procurement of the skeleton collection. Nevertheless he actively collaborated in the project, sent an employee of the Ahnenerbe to make the preparatory selections in the concentration camp at Auschwitz, and provided for the transfer of the victims from Auschwitz to Natzweiler. He made arrangements that the collection be destroyed.

Sievers’ guilt under this specification is shown without question.

Sievers offers two purported defenses to the charges against him (1) that he acted pursuant to superior orders; (2) that he was a member of a resistance movement.

The first defense is wholly without merit. There is nothing to show that in the commission of these ghastly crimes, Sievers acted entirely pursuant to orders. True, the basic policies or projects which he carried through were decided upon by his superiors, but in the execution of the details Sievers had an unlimited power of discretion. The defendant says that in his position he could not have refused an assignment. The fact remains that the record shows the case of several men who did, and who have lived to tell about it.

Sievers’ second matter of defense is equally untenable. In support of the defense, Sievers offered evidence by which he hoped to prove that as early as 1933 he became a member of a secret resistance movement which plotted to overthrow the Nazi Government and to assassinate Hitler and Himmler; that as a leading member of the group, Sievers obtained the appointment as Reich Business Manager of the Ahnenerbe so that he could be close to Himmler and observe his movements; that in this position he became enmeshed in the revolting crimes, the subject matter of this indictment; that he remained as business manager upon advice of his resistance leader to gain vital information which would hasten the day of the overthrow of the Nazi Government and the liberation of the helpless peoples coming under its domination.

Assuming all these things to be true, we cannot see how they may be used as a defense for Sievers. The fact remains that murders were committed with cooperation of the Ahnenerbe upon countless thousands of wretched concentration camp inmates who had not the slightest means of resistance. Sievers directed the program by which these murders were committed.

It certainly is not the law that a resistance worker can commit no crime, and least of all, against the very people he is supposed to be protecting.

MEMBERSHIP IN A CRIMINAL ORGANIZATION

Under count four of the indictment, Wolfram Sievers is charged with being a member of an organization declared criminal by the judgment of the International Military Tribunal, namely, the SS. The evidence shows that Wolfram Sievers became a member of the SS in 1935 and remained a member of that organization to the end of the war. As a member of the SS he was criminally implicated in the commission of war crimes and crimes against humanity, as charged under counts two and three of the indictment.

CONCLUSION

Military Tribunal I finds and adjudges the defendant Wolfram Sievers guilty under counts two, three and four of the indictment.

ROSE

The defendant Rose is charged under counts two and three of the indictment with special responsibility for, and participation in Typhus and Epidemic Jaundice Experiments.

The latter charge has been abandoned by the prosecution.

Evidence was offered concerning Rose’s criminal participation in malaria experiments at Dachau, although he was not named in the indictment as one of the defendants particularly charged with criminal responsibility in connection with malaria experiments. Questions presented by this situation will be discussed later.

The defendant Rose is a physician of large experience, for many years recognized as an expert in tropical diseases. He studied medicine at the Universities of Berlin and Breslau and was admitted to practice in the fall of 1921. After serving as interne in several medical institutes, he received an appointment on the staff of the Robert Koch Institute in Berlin. Later he served on the staff of Heidelberg University and for three years engaged in the private practice of medicine in Heidelberg. In 1929 he went to China, where he remained until 1936, occupying important positions as medical adviser to the Chinese Government. In 1936 he returned to Germany and became head of the Department for Tropical Medicine at the Robert Koch Institute in Berlin. Late in August 1939 he joined the Luftwaffe with the rank of first lieutenant in the Medical Corps. In that service he was commissioned brigadier general in the reserve and continued on active duty until the end of the war. He was consultant on hygiene and tropical medicine to the Chief of the Medical Service of the Luftwaffe. From 1944 he was also consultant on the staff of defendant Handloser and was medical adviser to Dr. Conti in matters pertaining to tropical diseases. During the war Rose devoted practically all of his time to his duties as consultant to the Chief of the Medical Service of the Luftwaffe, Hippke, and after 1 January 1944, the defendant Schroeder.

MALARIA EXPERIMENTS

Medical experiments in connection with malaria were carried on at Dachau concentration camp from February 1942 until the end of the war. These experiments were conducted under Dr. Klaus Schilling for the purpose of discovering a method of establishing immunity against malaria. During the course of the experiments probably as many as 1,000 inmates of the concentration camp were used as subjects of the experiments. Very many of these persons were nationals of countries other than Germany who did not volunteer for the experiments. By credible evidence it is established that approximately 30 of the experimental subjects died as a direct result of the experiments and that many more succumbed from causes directly following the experiments, including non-German nationals.

With reference to Rose’s participation in these experiments, the record shows the following: The defendant Rose had been acquainted with Schilling for a number of years, having been his successor in a position once held by Schilling in the Robert Koch Institute. Under date 3 February 1941, Rose, writing to Schilling, then in Italy, referred to a letter received from Schilling, in which the latter requested “malaria spleens” (spleens taken from the bodies of persons who had died from malaria). Rose in reply asked for information concerning the exact nature of the material desired. Schilling wrote 4 April 1942 from Dachau to Rose at Berlin, stating that he had inoculated a person intracutaneously with sporocoides from the salivary glands of a female anopheles which Rose had sent him. The letter continues:

“For the second inoculation I miss the sporocoides material because I do not possess the ‘Strain Rose’ in the anopheles yet. If you could find it possible to send me in the next days a few anopheles infected with ‘Strain Rose’ (with the last consignment two out of ten mosquitoes were infected) I would have the possibility to continue this experiment and I would naturally be very thankful to you for this new support of my work.

“The mosquito breeding and the experiments proceed satisfactorily and I am working now on six tertiary strains.”

The letter bears the handwritten endorsement “finished 17 April 1942. L. g. RO 17/4,” which evidence clearly reveals that Rose had complied with Schilling’s request for material.

Schilling again wrote Rose from Dachau malaria station 5 July 1943, thanking Rose for his letter and “the consignment of atroparvus eggs.” The letter continues:

“Five percent of them brought on water went down and were therefore unfit for development; the rest of them hatched almost 100 percent.

“Thanks to your solicitude, achieved again the completion of my breed.

“Despite this fact I accept with great pleasure your offer to send me your excess of eggs. How did you dispatch this consignment? The result could not have been any better!

“Please tell Fraeulein Lange, who apparently takes care of her breed with greater skill and better success than the prisoner August, my best thanks for her trouble.

“Again my sincere thanks to you!”

The “prisoner August” mentioned in the letter was doubtless the witness August Vieweg, who testified before this Tribunal concerning the malaria experiments.

Rose wrote Schilling 27 July 1943 in answer to the latter’s letter of 5 July 1943, stating he was glad the shipment of eggs had arrived in good order and had proved useful. He also gave the information that another shipment of anopheles eggs would follow.

In the fall of 1942 Rose was present at the “Cold Conference” held at Nuernberg and heard Holzloehner deliver his lecture on the freezing experiments which had taken place at Dachau. Rose testified that after the conference he talked with Holzloehner, who told him that the carrying out of physiological experiments on human beings imposed upon him a tremendous mental burden, adding that he hoped he never would receive another order to conduct such experiments.

It is impossible to believe that during the years 1942 and 1943 Rose was unaware of malaria experiments on human beings which were progressing at Dachau under Schilling, or to credit Rose with innocence of knowledge that the malaria research was not confined solely to vaccinations designed for the purpose of immunizing the persons vaccinated. On the contrary, it is clear that Rose well knew that human beings were being used in the concentration camp as subjects for medical experimentation.

However, no adjudication either of guilt or innocence will be entered against Rose for criminal participation in these experiments for the following reason: In preparing counts two and three of its indictment the prosecution elected to frame its pleading in such a manner as to charge all defendants with the commission of war crimes and crimes against humanity, generally, and at the same time to name in each sub-paragraph dealing with medical experiments only those defendants particularly charged with responsibility for each particular item.

In our view this constituted, in effect, a bill of particulars and was, in essence, a declaration to the defendants upon which they were entitled to rely in preparing their defenses, that only such persons as were actually named in the designated experiments would be called upon to defend against the specific items. Included in the list of names of those defendants specifically charged with responsibility for the malaria experiments the name of Rose does not appear. We think it would be manifestly unfair to the defendant to find him guilty of an offense with which the indictment affirmatively indicated he was not charged.

This does not mean that the evidence adduced by the prosecution was inadmissible against the charges actually preferred against Rose. We think it had probative value as proof of the fact of Rose’s knowledge of human experimentation upon concentration camp inmates.

TYPHUS EXPERIMENTS

These experiments were carried out at Buchenwald and Natzweiler concentration camps, over a period extending from 1942 to 1945, in an attempt to procure a protective typhus vaccine.

In the experimental block at Buchenwald, with Dr. Ding in charge, inmates of the camp were infected with typhus for the purpose of procuring a continuing supply of fresh blood taken from persons suffering from typhus. Other inmates, some previously immunized and some not, were infected with typhus to demonstrate the efficacy of the vaccines. Full particulars of these experiments have been given elsewhere in the judgment.

Rose visited Buchenwald in company with Gildemeister of the Robert Koch Institute in the spring of 1942. At this time Dr. Ding was absent, suffering from typhus as the result of an accidental infection received while infecting his experimental subjects. Rose inspected the experimental block where he saw many persons suffering from typhus. He passed through the wards and looked at the clinical records “of * * * persons with severe cases in the control cases and * * * lighter cases among those vaccinated.”

The Ding diary, under dates 19 August-4 September 1942, referring to use of vaccines for immunization, states that 20 persons were inoculated with vaccine from Bucharest, with a note “this vaccine was made available by Professor Rose, who received it from Navy Doctor Professor Ruegge from Bucharest.” Rose denied that he had ever sent vaccine to Mrugowsky or Ding for use at Buchenwald. Mrugowsky, from Berlin, under date 16 May 1942, wrote Rose as follows:

“Dear Professor:

“The Reich Physician SS and Police has consented to the execution of experiments to test typhus vaccines. May I therefore ask you to let me have the vaccines.

“The other question which you raised, as to whether the louse can be infected by a vaccinated typhus patient, will also be dealt with. In principle, this also has been approved. There are, however, still some difficulties at the moment about the practical execution, since we have at present no facilities for breeding lice.

“Your suggestion to use Olzscha has been passed on to the personnel department of the SS medical office. It will be given consideration in due course.”

From a note on the letter, it appears that Rose was absent from Berlin and was not expected to return until June. The letter, however, refers to previous contact with Rose and to some suggestions made by him which evidently concern medical experiments on human beings. Rose in effect admitted that he had forwarded the Bucharest vaccine to be tested at Buchenwald.

At a meeting of consulting physicians of the Wehrmacht held in May 1943, Ding made a report in which he described the typhus experiments he had been performing at Buchenwald. Rose heard the report at the meeting and then and there objected strongly to the methods used by Ding in conducting the experiments. As may well be imagined, this protest created considerable discussion among those present.

The Ding diary shows that, subsequent to this meeting, experiments were conducted at Buchenwald at the instigation of the defendant Rose. The entry under date of 8 March 1944, which refers to “typhus vaccine experimental series VIII”, appears as follows:

“Suggested by Colonel M. C. of the Air Corps, Professor Rose (Oberstarzt), the vaccine ‘Kopenhagen’ (Ipsen-Murine-vaccine) produced from mouse liver by the National Serum Institute in Copenhagen was tested for its compatibility on humans. 20 persons were vaccinated for immunization by intramuscular injection * * *. 10 persons were contemplated for control and comparison. 4 of the 30 persons were eliminated before the start of the artificial injection because of intermittent sickness * * *. The remaining experimental persons were infected on 16 April 44 by subcutaneous injection of 1/20 cc. typhus sick fresh blood * * *. The following fell sick: 17 persons immunized: 9 medium, 8 seriously; 9 persons control: 2 medium, 7 seriously * * *. 2 June 44: The experimental series was concluded 13 June 44: Chart and case history completed and sent to Berlin. 6 deaths (3 Copenhagen) (3 control). Dr. Ding.”

When on the witness stand Rose vigorously challenged the correctness of this entry in the Ding diary and flatly denied that he had sent a Copenhagen vaccine to Mrugowsky or Ding for use at Buchenwald. The prosecution met this challenge by offering in evidence a letter from Rose to Mrugowsky dated 2 December 1943, in which Rose stated that he had at his disposal a number of samples of a new murine virus typhus vaccine prepared from mice livers, which in animal experiments had been much more effective than the vaccine prepared from the lungs of mice. The letter continued:

“To decide whether this first-rate murine vaccine should be used for protective vaccination of human beings against lice typhus, it would be desirable to know if this vaccine showed in your and Ding’s experimental arrangement at Buchenwald an effect similar to that of the classic virus vaccines.

“Would you be able to have such an experimental series carried out? Unfortunately I could not reach you over the phone. Considering the slowness of postal communications I would be grateful for an answer by telephone * * *.”

The letter shows on its face that it was forwarded by Mrugowsky to Ding, who noted its receipt by him 21 February 1944.

On cross-examination, when Rose was confronted with the letter he admitted its authorship, and that he had asked that experiments be carried out by Mrugowsky and Ding at Buchenwald.

The fact that Rose contributed actively and materially to the Mrugowsky-Ding experiments at Buchenwald clearly appears from the evidence.

The evidence also shows that Rose actively collaborated in the typhus experiments carried out by Haagen at the Natzweiler concentration camp for the benefit of the Luftwaffe.

From the exhibits in the record, it appears that Rose and Haagen corresponded during the month of June 1943 concerning the production of a vaccine for typhus. Under date 5 June 1943 Haagen wrote to Rose amplifying a telephone conversation between the two and referring to a letter from a certain Giroud with reference to a vaccine which had been used on rabbits. A few days later Rose replied, thanking him for his letters of 4 and 5 June and for “the prompt execution of my request.” The record makes it plain that by use of the phrase “the prompt execution of my request” was meant a request made by Rose to the Chief of the Medical Service of the Wehrmacht for an order to produce typhus vaccine to be used by the armed forces in the eastern area.

Under date 4 October 1943 Haagen again wrote Rose concerning his plans for vaccine production, making reference in the letter to a report made by Rose on the Ipsen vaccine. Haagen stated that he had already reported to Rose on the results of experiments with human beings and expressed his regret that, up to the date of the letter, he had been unable to “perform infection experiments on the vaccinated persons.” He also stated that he had requested the Ahnenerbe to provide suitable persons for vaccination but had received no answer; that he was then vaccinating other human beings and would report results later. He concluded by expressing the wish and need for experimental subjects upon whom to test vaccinations, and suggested that when subjects were procured, parallel tests should be made between the vaccine referred to in the letter and the Ipsen tests.

We think the only reasonable inference which can be drawn from this letter is that Haagen was proposing to test the efficacy of the vaccinations which he had completed, which could only be accomplished by infecting the vaccinated subjects with a virulent pathogenic virus.

In a letter written by Rose and dated “in the field, 29 September 1943”, directed to the Behring Works at Marburg/Lahn, Rose states that he is enclosing a memorandum regarding reports by Dr. Ipsen on his experience in the production of typhus vaccine. Copy of the report which Rose enclosed is in evidence, Rose stating therein that he had proposed, and Ipsen had promised, that a number of Ipsen’s liver vaccine samples should be sent to Rose with the object of testing its protective efficacy on human beings whose lives were in special danger. Copies of this report were forwarded by Rose to several institutions, including that presided over by Haagen.

In November 1943, 100 prisoners were transported to Natzweiler, of whom 18 had died during the journey. The remainder were in such poor health that Haagen found them worthless for his experiments and requested additional healthy prisoners through Dr. Hirt, who was a member of the Ahnenerbe.

Rose wrote to Haagen 13 December 1943, saying among other things “I request that in procuring persons for vaccination in your experiment, you request a corresponding number of persons for vaccination with Copenhagen vaccine. This has the advantage, as also appeared in the Buchenwald experiments, that the test of various vaccines simultaneously gives a clearer idea of their value than the test of one vaccine alone.”

There is much other evidence connecting Rose with the series of experiments conducted by Haagen but we shall not burden the judgment further. It will be sufficient to say that the evidence proves conclusively that Rose was directly connected with the criminal experiments conducted by Haagen.

Doubtless at the outset of the experimental program launched in the concentration camps, Rose may have voiced some vigorous opposition. In the end, however, he overcame what scruples he had and knowingly took an active and consenting part in the program. He attempts to justify his actions on the ground that a state may validly order experiments to be carried out on persons condemned to death without regard to the fact that such persons may refuse to consent to submit themselves as experimental subjects. This defense entirely misses the point of the dominant issue. As we have pointed out in the case of Gebhardt, whatever may be the condition of the law with reference to medical experiments conducted by or through a state upon its own citizens, such a thing will not be sanctioned in international law when practiced upon citizens or subjects of an occupied territory.

We have indulged every presumption in favor of the defendant, but his position lacks substance in the face of the overwhelming evidence against him. His own consciousness of turpitude is clearly disclosed by the statement made by him at the close of a vigorous cross-examination in the following language:

“It was known to me that such experiments had earlier been carried out, 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 perhaps corresponds to a lawyer who is, perhaps, a basic opponent of execution or death sentence. On occasion 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 circumstances he may perhaps even be forced to pronounce such a death sentence himself, although he is basically an opponent of that set-up.”

The Tribunal finds that the defendant Rose was a principal in, accessory to, ordered, abetted, took a consenting part in, and was connected with plans and enterprises involving medical experiments on non-German nationals without their consent, in the course of which murders, brutalities, cruelties, tortures, atrocities, and other inhuman acts were committed. To the extent that these crimes were not war crimes they were crimes against humanity.

CONCLUSION

Military Tribunal I finds and adjudges the defendant Gerhard Rose guilty under counts two and three of the indictment.

RUFF, ROMBERG, AND WELTZ

The defendants Ruff, Romberg, and Weltz are charged under counts two and three of the indictment with special responsibility for, and participation in, High-Altitude Experiments.

The defendant Weltz is also charged under counts two and three with special responsibility for, and participation in, Freezing Experiments.

To the extent that the evidence in the record relates to the high-altitude experiments, the cases of the three defendants will be considered together.

Defendant Ruff specialized in the field of aviation medicine from the completion of his medical education at Berlin and Bonn in 1932. In January 1934 he was assigned to the German Experimental Institute for Aviation, a civilian agency, in order to establish a department for aviation medicine. Later he became chief of the department.

Defendant Romberg joined the NSDAP in May 1933. From April 1936 until 1938 he interned as an assistant physician at a Berlin hospital. On 1 January 1938 he joined the staff of the German Experimental Institution for Aviation as an associate assistant to the defendant Ruff. He remained as a subordinate to Ruff until the end of the war.

Defendant Weltz for many years was a specialist in X-ray work. In the year 1935 he received an assignment as lecturer in the field of aviation medicine at the University of Munich. At the same time he instituted a small experimental department at the Physiological Institute of the University of Munich. Weltz lectured at the University until 1945; at the same time he did research work at the Institute.

In the summer of 1941 the experimental department at the Physiological Institute, University of Munich, was taken over by the Luftwaffe and renamed the “Institute for Aviation Medicine in Munich.” Weltz was commissioned director of this Institute by Hippke, then Chief of the Medical Inspectorate of the Luftwaffe. In his capacity as director of this Institute, Weltz was subordinated to Luftgau No. VII in Munich for disciplinary purposes. In scientific matters he was subordinated directly to Anthony, Chief of the Department for Aviation Medicine in the Office of the Medical Inspectorate of the Luftwaffe.

HIGH-ALTITUDE EXPERIMENTS

The evidence is overwhelming and not contradicted that experiments involving the effect of low air pressure on living human beings were conducted at Dachau from the latter part of February through May 1942. In some of these experiments great numbers of human subjects were killed under the most brutal and senseless conditions. A certain Dr. Sigmund Rascher, Luftwaffe officer, was the prime mover in the experiments which resulted in the deaths of the subjects. The prosecution maintains that Ruff, Romberg, and Weltz were criminally implicated in these experiments.

The guilt of the defendant Weltz is said to arise by reason of the fact that, according to the prosecution’s theory, Weltz, as the dominant figure proposed the experiments, arranged for their conduct at Dachau, and brought the parties Ruff, Romberg, and Rascher together. The guilt of Ruff and Romberg is charged by reason of the fact that they are said to have collaborated with Rascher in the conduct of the experiments. The evidence on the details of the matter appears to be as follows:

In the late summer of 1941 soon after the Institute Weltz at Munich was taken over by the Luftwaffe, Hippke, Chief of the Medical Service of the Luftwaffe, approved, in principle, a research assignment for Weltz in connection with the problem of rescue of aviators at high altitudes. This required the use of human experimental subjects. Weltz endeavored to secure volunteer subjects for the research from various sources; however, he was unsuccessful in his efforts.

Rascher, one of Himmler’s minor satellites, was at the time an assistant at the Institute. He, Rascher, suggested the possibility of securing Himmler’s consent to conducting the experiments at Dachau. Weltz seized upon the suggestion, and thereafter arrangements to that end were completed, Himmler giving his consent for experiments to be conducted on concentration camp inmates condemned to death, but only upon express condition that Rascher be included as one of the collaborators in the research.

Rascher was not an expert in aviation medicine. Ruff was the leading German scientist in this field, and Romberg was his principal assistant. Weltz felt that before he could proceed with his research these men should be persuaded to come into the undertaking. He visited Ruff in Berlin and explained the proposition. Thereafter Ruff and Romberg came to Munich, where a conference was held with Weltz and Rascher to discuss the technical nature of the proposed experiments.

According to the testimony of Weltz, Ruff, and Romberg, the basic consideration which impelled them to agree to the use of concentration camp inmates as subjects was the fact that the inmates were to be criminals condemned to death who were to receive some form of clemency in the event they survived the experiments. Rascher, who was active in the conference, assured the defendants that this also was one of the conditions under which Himmler had authorized the use of camp inmates as experimental subjects.

The decisions reached at the conference were then made known to Hippke, who gave his approval to the institution of experiments at Dachau and issued an order that a mobile low-pressure chamber which was then in the possession of Ruff at the Department for Aviation Medicine, Berlin, should be transferred to Dachau for use in the project.

A second meeting was held at Dachau, attended by Ruff, Romberg, Weltz, Rascher, and the camp commander, to make the necessary arrangements for the conduct of the experiments. The mobile low-pressure chamber was then brought to Dachau, and on 22 February 1942 the first series of experiments was instituted.

Weltz was Rascher’s superior; Romberg was subordinate to Ruff. Rascher and Romberg were in personal charge of the conduct of the experiments. There is no evidence to show that Weltz was ever present at any of these experiments. Ruff visited Dachau one day during the early part of the experiments, but thereafter remained in Berlin and received information concerning the progress of the experiments only through his subordinate, Romberg.

There is evidence from which it may reasonably be found that at the outset of the program personal friction developed between Weltz and his subordinate Rascher. The testimony of Weltz is that on several occasions he asked Rascher for reports on the progress of the experiments and each time Rascher told Weltz that nothing had been started with reference to the research. Finally Weltz ordered Rascher to make a report; whereupon Rascher showed his superior a telegram from Himmler which stated, in substance, that the experiments to be conducted by Rascher were to be treated as top secret matter and that reports were to be given to none other than Himmler. Because of this situation Weltz had Rascher transferred out of his command to the DVL branch at Dachau. Defendant Romberg stated that these experiments had been stopped soon after their inception by the adjutant of the Reich War Ministry, because of friction between Weltz and Rascher, and that the experiments were resumed only after Rascher had been transferred out of Weltz Institute.

While the evidence is convincingly plain that Weltz participated in the initial arrangements for the experiments and brought all parties together, it is not so clear that illegal experiments were planned or carried out while Rascher was under Weltz command, or that he knew that experiments which Rascher might conduct in the future would be illegal and criminal.

There appear to have been two distinct groups of prisoners used in the experimental series. One was a group of 10 to 15 inmates known in the camp as “exhibition patients” or “permanent experimental subjects”. Most, if not all, of these were German nationals who were confined in the camp as criminal prisoners. These men were housed together and were well-fed and reasonably contented. None of them suffered death or injury as a result of the experiments. The other group consisted of 150 to 200 subjects picked at random from the camp and used in the experiments without their permission. Some 70 or 80 of these were killed during the course of the experiments.

The defendants Ruff and Romberg maintain that two separate and distinct experimental series were carried on at Dachau; one conducted by them with the use of the “exhibition subjects”, relating to the problems of rescue at high altitudes, in which no injuries occurred; the other conducted by Rascher on the large group of nonvolunteers picked from the camp at random, to test the limits of human endurance at extremely high altitudes, in which experimental subjects in large numbers were killed.

The prosecution submits that no such fine distinction may be drawn between the experiments said to have been conducted by Ruff and Romberg, on the one hand, and Rascher on the other, or in the prisoners who were used as the subjects of these experiments; that Romberg—and Ruff as his superior—share equal guilt with Rascher for all experiments in which deaths to the human subjects resulted.

In support of this submission the members of the prosecution cite the fact that Rascher was always present when Romberg was engaged in work at the altitude chamber; that on at least three occasions Romberg was at the chamber when deaths occurred to the so-called Rascher subjects, yet elected to continue the experiments. They point likewise to the fact that, in a secret preliminary report made by Rascher to Himmler which tells of deaths, Rascher mentions the name of Romberg as being a collaborator in the research. Finally they point to the fact that, after the experiments were concluded, Romberg was recommended by Rascher and Sievers for the War Merit Cross, because of the work done by him at Dachau.

The issue on the question of the guilt or innocence of these defendants is close; we would be less than fair were we not to concede this fact. It cannot be denied that there is much in the record to create at least a grave suspicion that the defendants Ruff and Romberg were implicated in criminal experiments at Dachau. However, virtually all of the evidence which points in this direction is circumstantial in its nature. On the other hand, it cannot be gainsaid that there is a certain consistency, a certain logic, in the story told by the defendants. And some of the story is corroborated in significant particulars by evidence offered by the prosecution.

The value of circumstantial evidence depends upon the conclusive nature and tendency of the circumstances relied on to establish any controverted fact. The circumstances must not only be consistent with guilt, but they must be inconsistent with innocence. Such evidence is insufficient when, assuming all to be true which the evidence tends to prove, some other reasonable hypothesis of innocence may still be true; for it is the actual exclusion of every other reasonable hypothesis but that of guilt which invests mere circumstances with the force of proof. Therefore, before a court will be warranted in finding a defendant guilty on circumstantial evidence alone, the evidence must show such a well-connected and unbroken chain of circumstances as to exclude all other reasonable hypotheses but that of the guilt of the defendant. What circumstances can amount to proof can never be a matter of general definition. In the final analysis the legal test is whether the evidence is sufficient to satisfy beyond a reasonable doubt the understanding and conscience of those who, under their solemn oaths as officers, must assume the responsibility for finding the facts.

On this particular specification, it is the conviction of the Tribunal that the defendants Ruff, Romberg, and Weltz must be found not guilty.

FREEZING EXPERIMENTS

In addition to the high-altitude experiments, the defendant Weltz is charged with freezing experiments, likewise conducted at Dachau for the benefit of the German Luftwaffe. These began at the camp at the conclusion of the high-altitude experiments and were performed by Holzloehner, Finke, and Rascher, all of whom were officers in the medical services of the Luftwaffe. Non-German nationals were killed in these experiments.

We think it quite probable that Weltz had knowledge of these experiments, but the evidence is not sufficient to prove that he participated in them.

CONCLUSION

Military Tribunal I finds and adjudges that the defendant Siegfried Ruff is not guilty under either counts two or three of the indictment, and directs that he be released from custody under the indictment when this Tribunal presently adjourns; and

Military Tribunal I finds and adjudges that the defendant Hans Wolfgang Romberg is not guilty under either counts two or three of the indictment, and directs that he be released from custody under the indictment when this Tribunal presently adjourns; and

Military Tribunal I finds and adjudges that the defendant Georg August Weltz is not guilty under either counts two or three of the indictment; and directs that he be released from custody under the indictment when this Tribunal presently adjourns.

BRACK

The defendant Brack is charged under counts two and three of the indictment with personal responsibility for, and participation in, Sterilization Experiments and the Euthanasia Program of the German Reich. Under count four the defendant is charged with membership in an organization declared criminal by the judgment of the International Military Tribunal, namely, the SS.

The defendant Brack enlisted in an artillery unit of an SA regiment in 1923, and became a member of the NSDAP and the SS in 1929. Throughout his career in the Party he was quite active in high official circles. He entered upon full-time service in the Braune Haus, the Nazi headquarters at Munich, in the summer of 1932. The following year he was appointed to the Staff of Bouhler, business manager of the NSDAP in Munich. When in 1934 Bouhler became Chief of the Chancellery of the Fuehrer of the NSDAP, Brack was transferred from the Braune Haus to Bouhler’s Berlin office. In 1936 Brack was placed in charge of office 2 (Amt 2) in the Chancellery of the Fuehrer in Berlin, that office being charged with the examinations of complaints received by the Fuehrer from all parts of Germany. Later, he became Bouhler’s deputy in office 2. As such he frequently journeyed to the different Gaue for the purpose of gaining first-hand information concerning matters in which Bouhler was interested.

Brack was promoted to the rank of Sturmbannfuehrer in the SS in 1935, and in April 1936 to the rank of Obersturmbannfuehrer. The following September he became a Standartenfuehrer in the SS, and was transferred to the staff of the Main Office of the SS in November. In November 1940 he was promoted to the grade of Oberfuehrer.

In 1942 Brack joined the Waffen SS, and during the late summer of that year was ordered to active duty with a Waffen SS division. He apparently remained on active duty until the close of the war.

STERILIZATION EXPERIMENTS

The persecution of the Jews had become a fixed Nazi policy very soon after the outbreak of World War II. By 1941 that persecution had reached the stage of the extermination of Jews, both in Germany and in the occupied territories. This fact is confirmed by Brack himself, who testified that he had been told by Himmler that he, Himmler, had received a personal order to that effect from Hitler.

The record shows that the agencies organized for the so-called euthanasia of incurables were used for this bloody pogrom. Later, because of the urgent need for laborers in Germany, it was decided not to kill Jews who were able to work but, as an alternative, to sterilize them.

With this end in view Himmler instructed Brack to inquire of physicians who were engaged in the Euthanasia Program about the possibility of a method of sterilizing persons without the victim’s knowledge. Brack worked on the assignment, with the result that in March 1941 he forwarded to Himmler his signed report on the results of experiments concerning the sterilization of human beings by means of X-rays. In the report a method was suggested by which sterilization with X-ray could be effected on groups of persons without their being aware of the operation.

On 23 June 1942 Brack wrote the following letter to Himmler:

“Dear Reichsfuehrer:

“* * * Among 10 millions of Jews in Europe, there are, I figure, at least 2-3 millions of men and women who are fit enough to work. Considering the extraordinary difficulties the labor problem presents us with I hold the view that those 2-3 millions should be specially selected and preserved. This can however only be done if at the same time they are rendered incapable to propagate. About a year ago I reported to you that agents of mine have completed the experiments necessary for this purpose. I would like to recall these facts once more. Sterilization, as normally performed on persons with hereditary diseases is here out of the question, because it takes too long and is too expensive. Castration by X-ray however is not only relatively cheap, but can also be performed on many thousands in the shortest time. I think, that at this time it is already irrelevant whether the people in question become aware of having been castrated after some weeks or months, once they feel the effects.

“Should you, Reichsfuehrer, decide to choose this way in the interest of the preservation of labor, then Reichsleiter Bouhler would be prepared to place all physicians and other personnel needed for this work at your disposal. Likewise he requested me to inform you that then I would have to order the apparatus so urgently needed with the greatest speed.

“Heil Hitler!

“Yours

Viktor Brack.”

Brack testified from the witness stand that at the time he wrote this letter he had every confidence that Germany would win the war.

Brack’s letter was answered by Himmler on 11 August 1942. In the reply Himmler directed that sterilization by means of X-rays be tried in at least one concentration camp in a series of experiments, and that Brack place at his disposal expert physicians to conduct the operation.

Blankenburg, Brack’s deputy, replied to Himmler’s letter and stated that Brack had been transferred to an SS division, but that he, Blankenburg, as Brack’s permanent deputy would “immediately take the necessary measures and get in touch with the chiefs of the main offices of the concentration camps.”

A Polish Jew testified before the Tribunal that while confined in Auschwitz concentration camp he was marched to Birkenau and forcibly subjected to severe X-ray exposure and was castrated later in order that the effects of the X-ray could be studied.

A French physician of Jewish descent who was confined at Auschwitz from September 1943 to January 1945, testified that near Auschwitz was Birkenau camp where people were sterilized by SS doctors. About 100 male Poles who had been sterilized at Birkenau were attended by the witness after the operation. Later this group was castrated by the camp physicians.

The record contains other evidence from which it is manifestly plain that sterilization by means of X-rays was attempted on groups of persons who were painfully injured thereby; and that castration followed the X-ray procedures.

Brack’s part in the organization of the sterilization program with full knowledge that it would be put into execution, is conclusively shown by the record.

EUTHANASIA PROGRAM

The Euthanasia Program, which was put into effect by a secret decree of Hitler on the day that Germany invaded Poland, has been discussed at length in the judgment in the case against Karl Brandt.

Brack contends that he was basically opposed to this program and that, on occasion, he assisted certain of his Jewish friends to escape from its consequences. But be that as it may, the evidence is that whatever sentiments Brack may have entertained toward individual members of the race, he was perfectly willing to and did act as an important administrator in furthering the Euthanasia Program. After it had gotten under way, he wrote letters to various public officials, explaining to them how to keep the matter secret and to allay the public sentiment against the program.

This much is shown by Brack’s own statements. As a witness on the stand he testified that while at first he did not understand the full import of the program, he decided, after a talk with Bouhler, to collaborate in carrying out the assignment and to execute Bouhler’s orders.

He participated in the initial meetings called for the purpose of placing the project in operation. He was present at meetings of the experts, as well as the administrative discussions. He often acted as Bouhler’s representative, frequently making decisions which called for the exercise of personal judgment and a wide latitude of discretion.

Brack admitted that such were his activities in the program, that one might well have come to the conclusion that he was the influential man in euthanasia.

As Bouhler’s deputy he addressed a meeting at Munich, where he explained the purpose of Hitler’s decree and mentioned the draft of a law which was being prepared to give complete legislative sanctify to euthanasia—a law, incidentally, which was never in fact enacted. He represented Bouhler in April of 1941 at a meeting attended by Nazi judges and prosecutors. He testified that the Ministry of Justice had become considerably embarrassed because of the Euthanasia Program, and that he was present at the meeting for the purpose of imparting information concerning the salutary features of euthanasia to those who were present.

Brack gave the Tribunal considerable information concerning the method of extermination by euthanasia, stating that the program was so designed as to render the process inconspicuous and painless. In December 1939, or January 1940, Brack, Bouhler, Conti, and some other doctors were present at the administration of euthanasia to four experimental subjects. The victims were led into a gas chamber which had been built to resemble a shower room. The patients were seated on benches and poisonous gas was let into the chamber. A few moments later the patients became drowsy and finally lapsed into a death sleep without even knowing they were being executed. On the basis of this execution “Hitler decided that only carbon monoxide was to be used for killing the patients.” According to Brack these persons were not Jews, because, as Bouhler had explained to him, “the philanthropic action of euthanasia should be extended only to Germans.”

The evidence is plain that the euthanasia program explained by the defendant, gradually merged into the “Action 14 f 13,” which, briefly stated, amounted to an extermination of concentration camp inmates by methods and agencies used in euthanasia. One of the prime motives behind the program was to eliminate “useless eaters” from the scene, in order to conserve food, hospital facilities, doctors and nurses for the more important use of the German Armed Forces. Many nationals of countries other than Germany were killed.

Brack’s direct connection with and participation in the execution of euthanasia is conclusively proved by the evidence in the record.

MEMBERSHIP IN A CRIMINAL ORGANIZATION

Under count four of the indictment the defendant Brack is charged with being a member of the organization declared criminal by the judgment of the International Military Tribunal, namely, the SS. The evidence shows that Brack became a member of the SS in 1929, and voluntarily remained in that organization until the end of the war. As a member of the SS he was criminally implicated in the commission of war crimes and crimes against humanity, as charged under counts two and three of the indictment.

CONCLUSION

Military Tribunal I finds and adjudges the defendant Viktor Brack guilty under counts two, three and four of the indictment.

BECKER-FREYSENG

The defendant Becker-Freyseng is charged under counts two and three of the indictment with personal responsibility for, and participation in, High-Altitude, Freezing, Sulfanilamide, Sea-Water, Epidemic Jaundice, and Typhus Experiments.

The prosecution has abandoned all charges except as to high-altitude, freezing, sea-water and typhus experiments, and hence only these will be considered.

The defendant Becker-Freyseng joined the Nazi Party in 1933. In 1940 he was drafted into the Luftwaffe. In 1943 he was promoted to the rank of Stabsarzt in the Luftwaffe.

From August 1941 until May 1944 the defendant was an assistant consultant to Anthony, Chief of the Referat for Aviation Medicine, Berlin. This department dealt with all questions concerning aviation medicine and reported to the Chief of the Medical Service of the Luftwaffe. When Schroeder became Chief of the Medical Service of the Luftwaffe on 1 January 1944, the defendant became the consultant for aviation medicine in Schroeder’s office.

HIGH-ALTITUDE EXPERIMENTS

As shown elsewhere in the judgment, high-altitude experiments for the benefit of the Luftwaffe were conducted at Dachau concentration camp on non-German nationals, beginning in February or March 1942. These experiments had been approved, in principle at least, by Hippke, Chief of the Medical Service of the Luftwaffe. A mobile low-pressure chamber which had been in the possession of the department of aviation medicine, Berlin, was transferred to Dachau for use in the experiments. Concentration camp inmates were killed while being subjected to experiments conducted in the chamber.

During the time the experiments were conducted, defendant Becker-Freyseng was an assistant consultant to Anthony, Chief of the Referat for Aviation Medicine, Berlin. All low-pressure chambers owned by the Luftwaffe were under the general control of that office.

It is submitted by the prosecution that the record shows that Becker-Freyseng was a principal in, accessory to, aided, abetted, took a consenting part in, and was connected with plans and enterprises involving the commission of these experiments.

The evidence upon this charge is not deemed sufficient to preponderate against a reasonable doubt as to the defendant’s guilty participation in the experiments here involved.

FREEZING EXPERIMENTS

It is claimed that in June 1942 Becker-Freyseng was informed from certain of his official files that a meeting to consider experiments to investigate the treatment of persons who had been severely chilled or frozen would be held in Nuernberg the following October (referred to as the “Cold Congress”). It is contended that the directive which set the experiment into motion was issued from the office of the department for aviation medicine, that the funds and equipment were supplied by that office, and that Becker-Freyseng had knowledge of the experiments, and that he admitted such knowledge.

As to all this, the proof is clear that Becker-Freyseng was actively employed in organizing and was present at the so-called “Cold Congress.” But more than the evidence discloses is needed to establish that he had any later part in or connection with the experiments themselves, or that he had any controlling relationship to their initial establishment.

TYPHUS EXPERIMENTS

The evidence is insufficient to disclose any criminal responsibility of the defendant Becker-Freyseng in connection with the typhus experiments.

SEA-WATER EXPERIMENTS

We have discussed the sea-water experiments in that portion of our judgment which deals with the case of the defendant Schroeder. As was pointed out there, two methods of making sea water drinkable were available to the Luftwaffe. One, the so-called Schaefer method, had been chemically tested and apparently produced potable sea water; the other, the so-called Berka process, which changed the taste of the sea water but did not reduce the salt content.

Becker-Freyseng, as chief consultant for aviation medicine in the office of Schroeder, arranged for a conference to be held in May 1944 to discuss the testing of these two methods. At the conference the defendant reported on various clinical experiments which had been conducted by a certain von Sirany to test the Berka process. He came to the conclusion that the experiments had not been conducted under sufficiently realistic conditions of sea distress to make the findings conclusive.

As a result of the conference it was decided that new experiments should be conducted.

We learn from the report of the meeting, which is in evidence, that two series of experiments were to be conducted. The first, a maximum period of six days, during which one group of subjects would receive sea water processed with the Berka method; a second group, ordinary drinking water; a third group no water at all; and the fourth group, such water as would be available in the emergency sea distress kits then used. During the duration of the experiment all persons were to receive only an emergency sea diet, such as provided for persons in distress at sea.

In addition to the 6-day experiment it was determined that a 12-day experiment should be run. The plan for this series reads as follows:

“Persons nourished with sea water and Berkatit, and as diet also the emergency sea rations.

“Duration of experiments: 12 days.

“Since in the opinion of the Chief of the Medical Service permanent injuries to health, that is the death of the experimental subjects, has to be expected, as experimental subjects such persons should be used as will be put at the disposal by [the] Reichsfuehrer SS.”

By letter dated 7 June 1944 Schroeder requested the Reichsfuehrer SS to allow him to use concentration camp inmates for the sea-water experiments. The letter stated among other things the following:

“As the experiments on human beings could thus far only be carried out for a period of four days, and as practical demands require a remedy for those who are in distress at sea up to 12 days, appropriate experiments are necessary.

“Required are 40 healthy test subjects, who must be available for 4 whole weeks. As it is known from previous experiments that necessary laboratories exist in the concentration camp Dachau, this camp would be very suitable * * *.”

When on the stand as a witness, the defendant Becker-Freyseng admitted that he prepared the substance of the letter for Schroeder’s dictation and signature.

Thus with actual knowledge of the nature of the Berka process, and the fact that if used over prolonged periods it would cause suffering and death, Becker-Freyseng counselled and conferred with his chief concerning the necessity for experiments wherein the process would be used. He gave advice upon the exact procedure to be used in the 6-day and 12-day experimental series. He framed the letter to Himmler requesting the use of concentration camp inmates at Dachau for experimental subjects. He called the defendant Beiglboeck to Berlin to explain to him the details and purpose of the experiments. He issued the order under which Beiglboeck went to Dachau to begin the experiments. He received Beiglboeck’s report after the experimental series had been concluded.

Throughout all stages of the affair, from its inception to its conclusion, the defendant knew of the dangerous nature of the experiments. He knew that deaths were reasonably to be expected. He knew that concentration camp inmates were to be used as experimental subjects. It is impossible to believe that he supposed that the inmates of the camps, who were to be furnished by Himmler, were to be volunteers. The entire language of the letter, which was written to Himmler asking for experimental subjects, entirely refutes such implication.

The evidence shows conclusively that gypsies of various nationalities were used as experimental subjects. They were former inmates of Auschwitz who had been tricked into coming to Dachau under the promise that they were to be used in a special labor battalion. When they arrived at Dachau they were detailed to the sea-water experiments without their voluntary consent being asked or given.

During the course of the experiment many of the experimental subjects were treated brutally and endured much pain and suffering.

It is apparent from the evidence that Becker-Freyseng was criminally connected with the experiments, and that the experiments were essentially criminal in their nature. To the extent that the crimes committed by him or under his authority were not war crimes, they were crimes against humanity.

CONCLUSION

Military Tribunal I finds and adjudges the defendant Hermann Becker-Freyseng guilty under counts two and three of the indictment.

SCHAEFER

The defendant Schaefer is charged under counts two and three of the indictment with personal responsibility for and participation in Sea-Water Experiments.

Konrad Schaefer was a scientist whose special field of research was chemical therapy. In November 1941 he was drafted into the Luftwaffe. In spring of the following year he was transferred to the Luftwaffe Replacement Depot in Salow, and from there to the Luftwaffe base at Frankfurt on the Oder. In summer of 1942 he was transferred to Berlin and assigned to the staff of the Research Institute for Aviation Medicine. His chief assignment at the Institute was to do research on the problem of sea emergency for the Luftwaffe. This included research work on various methods to render sea water potable. Schaefer remained in his position at the Institute without ever having attained officer rank.

In May of 1944 the defendant was ordered to be present at a meeting to be held at the German Air Ministry in Berlin, called to consider further research on making sea water potable. Some months previous to the meeting Schaefer had developed a process which actually precipitated the salts from sea water, but it was thought by the Chief of the Luftwaffe Medical Service to be too bulky and expensive for military use by the Luftwaffe.

Present at the meeting were Schaefer; Becker-Freyseng, research advisor to Schroeder; Christensen, of the Technical Bureau of the Reich Ministry of Aviation; and others. The subject of discussion was the feasibility of using the Schaefer process, or of turning to another process known as the Berka Method. The latter method, while cheap, did not precipitate salts from sea water and was dangerous to health when used for a period of time—as Schaefer, previous to the meeting, had already reported to Schroeder. Nevertheless, those in command of the meeting agreed that experiments should be conducted on concentration camp inmates to determine the extent to which the Berka method might be usable.

The experiments later conducted have been described at length in dealing with the case of Schroeder. Due to his attendance at this meeting, Schaefer is sought to be held criminally responsible in connection with the sea-water experiments.

The record has received careful attention from the Tribunal.

Nowhere have we been able to find that Schaefer was a principal in, or accessory to, or was otherwise criminally involved in or connected with the experiments mentioned. In fact, the record fails to show that the defendant had anything to do with these experiments, except such as might be implied from his attendance at several meetings of the parties who were actively interested therein. Nowhere in the testimony or elsewhere is it revealed that Schaefer voted for commencement or prosecution of the experiments or in any other manner aided in their execution.

CONCLUSION

Military Tribunal I finds and adjudges the defendant Konrad Schaefer not guilty of the charges contained in the indictment, and directs that he be released from custody under the indictment when the Tribunal presently adjourns.

HOVEN

The defendant Hoven is charged under counts two and three of the indictment with special responsibility for and participation in Typhus and other Vaccine Experiments, Gas Oedema Experiments, and the Euthanasia Program. In count four he is charged with being a member, after 1 September 1939, of an organization declared criminal by the International Military Tribunal.

Hoven joined the SS in 1934 and the Nazi Party in 1937. Soon after the outbreak of the war he joined the Waffen SS. In October 1939 he became assistant medical officer in the SS hospital at Buchenwald concentration camp. In 1941 he was appointed medical officer in charge of the SS troops stationed in the camp. He became assistant medical officer at the camp inmate hospital, and in July 1942 he became chief camp physician. He remained in the latter position until September 1943. At that time he was arrested on the order of the SS police court in Kassel for having allegedly murdered an SS noncommissioned officer who was a dangerous witness against Koch, the camp commander.

TYPHUS AND OTHER VACCINE EXPERIMENTS

The vaccine experiments with which Hoven is charged were conducted at Buchenwald under the supervision of SS Sturmbannfuehrer Dr. Ding, alias Ding-Schuler. They have already been described at length in other portions of this judgment.

The prosecution has shown beyond a reasonable doubt that Hoven was a criminal participant in these experiments. In collaboration with the SS camp administration he helped select the concentration camp inmates who became the experimental subjects. During the course of selection he exercised the right to include some prisoners and to reject others. While perhaps not empowered to initiate new series of experiments on his own responsibility—that apparently being a power which only Ding could exercise—the defendant worked with Ding on experiments then in progress. He supervised the preparation of diary notes, fever charts, and report sheets of the experiments. Occasionally he injected some of the subjects with the vaccines. He acted as Ding’s deputy in the conduct of the experiments. He was in command of experimental Block 46 in Ding’s absence. During the period of Hoven’s activity in the experimental station no less than 100 inmates were killed as a result of the typhus experiments. Many of these victims were non-German nationals who had not given their consent to be used as experimental subjects.

GAS OEDEMA EXPERIMENTS

It is asserted in an affidavit made by Dr. Ding-Schuler, who was in charge of Blocks 46 and 50, Buchenwald, that toward the end of 1942 a conference was held in the Military Medical Academy, Berlin, for the purpose of discussing the fatal effects of gas oedema serum on wounded persons. During the conference, Killian, of the Army Medical Inspectorate, and the defendant Mrugowsky reported several cases in which wounded soldiers who had received gas oedema serum injections in high quantities died suddenly without apparent reason. Mrugowsky suspected that the fatalities were due to the phenol content of the serum. To help solve the problem Mrugowsky ordered Ding to take part in a euthanasia killing with phenol and to report on the results in detail. A few days later Hoven, in the presence of Ding, gave phenol injections to several of the concentration camp inmates with the result that they died instantly. In accordance with instructions, Ding made a report of the killings to his superior officer.

The fact that Hoven engaged in phenol killings is substantiated by an affidavit voluntarily made by Hoven himself prior to the trial, which was received in evidence as a part of the case of the prosecution. In the affidavit Hoven makes the following statement:

“There were many prisoners who were jealous of the positions held by a few political prisoners and tried to discredit them. These traitors were immediately killed, and I was later notified in order to make out statements that they had died of natural causes.

“In some instances I supervised the killings of these unworthy inmates by injections of phenol, at the request of the inmates, in the hospital assisted by several inmates. Dr. Ding came once and said I was not doing it correctly, and performed some of the injections himself, killing three inmates who died within a minute.

“The total number of traitors killed was about 150, of whom 60 were killed by phenol injections, either by myself or under my supervision, and the rest were killed by beatings, etc., by the inmates.”

EUTHANASIA PROGRAM

The details of the Euthanasia Program have been discussed by us at length in dealing with the charges against certain other defendants; consequently they will not be repeated here.

In the Hoven pre-trial affidavit, portions of which were quoted while discussing gas oedema serum experimentation, the defendant gives us a partial picture of the Euthanasia Program, in the following statement:

“In 1941 Koch, the camp commander, called all the important SS officials of the camp together and informed them that he had received a secret order from Himmler that all mentally and physically deficient inmates should be killed, including Jews. 300 to 400 Jewish prisoners of different nationalities were sent to the ‘euthanasia station’ at Bernburg for extermination. I was ordered to issue falsified statements of the death of these Jews, and obeyed the order. This action was known as ‘14 f 13’.”

When the defendant Hoven took the stand in his own defense, he attempted to discredit the effects of the statements contained in his affidavit by testifying that the affidavit was taken as a result of interrogations propounded to him by the prosecution in English, and that he was not sufficiently familiar with the language to be fully aware of the inculpatory nature of the statements he was making.

The Tribunal is not impressed with these assertions. The evidence shows that prior to the war the defendant had lived for several years in the United States, where he had acquired at least an average understanding and comprehension of the English language. When he was on the witness stand, the Tribunal questioned him at length in order to ascertain the extent of his knowledge of English, and in particular, of his understanding of the meaning of the words used by him in his affidavit. As a result of this questioning the Tribunal is convinced that no undue or improper advantage was taken of the defendant in procuring the affidavit, and that at the time of his interrogation by the prosecution, Hoven knew and understood perfectly well the nature of the statements he was making.

The facts contained in the Hoven affidavit were convincingly substantiated by other evidence in the record, the only real difference being that the evidence shows the defendant to have been guilty of even many hundreds more murders than are admitted by him in his affidavit. As stated, in essence, by one of the prosecution witnesses in connection with the subject, Hoven personally killed inmates in the hospital barracks by injection. These people were mostly suffering from malnutrition and exhaustion. Hoven must have killed 1,000 of every nationality. These inmates were killed on the initiative of Hoven with no requests from the illegal camp administration or the political prisoners.

It is obvious from the evidence that throughout his entire service at Buchenwald, Hoven attempted to serve three masters: the SS camp administration, the criminal prisoners, and the political prisoners of the camp. As a result he became criminally implicated in murders committed by all three groups involving the deaths of non-German nationals, some of whom were prisoners of war and others of whom were civilians. In addition to these, he committed murders on his own individual responsibility. There can be nothing said in mitigation of such conduct. To the extent that the crimes committed by Hoven were not war crimes, they were crimes against humanity.

MEMBERSHIP IN CRIMINAL ORGANIZATION

Under count four of the indictment the defendant is charged with being a member of an organization declared criminal by the judgment of the International Military Tribunal, namely, the SS. The evidence shows that Hoven became a member of the SS in 1934, and remained in this organization throughout the war. As a member of the SS he was criminally implicated in the commission of war crimes and crimes against humanity, as charged under counts two and three of the indictment.

CONCLUSION

Military Tribunal I finds and adjudges the defendant Waldemar Hoven guilty, under counts two, three and four of the indictment.

BEIGLBOECK

The defendant Beiglboeck is charged under counts two and three of the indictment with personal responsibility for, and participation in Sea-Water Experiments.

The defendant Beiglboeck, an Austrian citizen, was a captain in the medical department of the German Air Force from May 1941 until the end of the war. In June 1944, while stationed at the hospital for paratroopers at Tarvis [Tarvisio], Italy, he received orders from his military and medical superior, defendant Becker-Freyseng, to carry out sea-water experiments at Dachau.

The sea-water experiments have been described in detail in those portions of the judgment dealing with defendants Schroeder and Becker-Freyseng.

The defendant Beiglboeck testified that he reported to Berlin at the end of June 1944, where Becker-Freyseng told him the nature and purpose of the experiments. Upon that trip he also reported to and talked with the defendant Schroeder. From these conversations he learned that the prime purpose of the experiments was to test the process developed by Berka for making sea water potable and also to ascertain whether it would be better for a shipwrecked person in distress at sea to go completely without sea water or to drink small quantities thereof.

It appears from the record that the persons used in the experiments were 40 gypsies of various nationalities who had been formerly at Auschwitz but who had been brought to Dachau under the pretext that they were to be assigned to various work details. These persons had been imprisoned in the concentration camps on the basis that they were “asocial persons.” Nothing was said to them about being used as human subjects in medical experiments. When they reached Dachau some of them were told that they were being assigned to the sea-water experiment detail.

Beiglboeck testified that before beginning the experiments he called the subjects together and told them the purpose of the experiments and asked them if they wanted to participate. He did not tell them the duration of the experiments, or that they could withdraw if ever they reached the physical or mental state that continuation of the experiment should seem to them to be impossible. The evidence is that none of the experimental subjects felt that they dared refuse becoming experimental subjects for fear of unpleasant consequences if they voiced any objections.

The defendant testified that pursuant to the order that had been given him, it was necessary that the subjects thirst for a continuous period; and that the question of when, if ever, they should be relieved during the course of the experiment was a matter which he reserved for his own decision.

During the course of the experiments the subjects were locked in a room. As to this phase of the program the defendant testified that “They should have been locked in a lot better than they were, because then they would have had no opportunity at all to get fresh water on the side.”

At the trial the defendant produced clinical charts which he said were made during the course of the experiments and which, according to the defendant, showed that the subjects did not suffer injury. On cross-examination the defendant admitted that some of the charts had been altered by him since he reached Nuernberg in order to present a more favorable picture of the experiments.

We do not think it necessary to discuss in detail what is shown by the charts either before or after the fraudulent alterations. We think it only necessary to say that a man who intends to rely on written evidence at a trial does not fraudulently alter such evidence from any honest or worthy motive.

The defendant claims that he was at all times extremely reluctant to perform the experiments with which he is charged, and did so only out of his sense of obedience as a soldier to superior authority. Under Control Council Law No. 10 such fact does not constitute a defense, but will be considered, if at all, only in mitigation of sentence.

In our view the experimental subjects were treated brutally. Many of them endured much pain and suffering, although from the evidence we cannot find that any deaths occurred among the experimental subjects.

It is apparent from the evidence that the experiments were essentially criminal in their nature, and that non-German nationals were used without their consent as experimental subjects. To the extent that the crimes committed by defendant Beiglboeck were not war crimes they were crimes against humanity.

CONCLUSION

Military Tribunal I finds and adjudges the defendant Wilhelm Beiglboeck guilty under counts two and three of the indictment.

POKORNY

The defendant Pokorny is charged with special responsibility for, and participation in, criminal Sterilization Experiments, as set forth in counts two and three of the indictment.

It is conceded by the prosecution that, in contradistinction to all other defendants, the defendant Pokorny never held any position of responsibility in the Party or State Hierarchy of Nazi Germany. Neither was he a member of the Nazi Party or of the SS. Formerly a Czechoslovakian citizen, he became a citizen of the Greater German Reich under the Munich Agreement of October 1938. During the war he served as a medical officer in the German Army and attained the rank of captain.

The only direct evidence bearing on the guilt of the defendant is a letter written by Pokorny to Himmler in October 1941, suggesting the use of a drug, caladium seguinum, as a possible means of medical sterilization of peoples of the occupied territories. The letter follows:

“To the Reich Commissioner for the Consolidation of German Folkdom,

SS Himmler, Chief of Police,

Berlin.

“I beg you to turn your attention to the following arguments. I have requested Professor Hoehn to forward this letter to you. I have chosen this direct way to you in order to avoid the slower process through channels and the possibility of an indiscretion in regard to the eventually enormous importance of the ideas presented.

“Led by the idea that the enemy must not only be conquered but destroyed, I feel obliged to present to you, as the Reich Commissioner for the Consolidation of German Folkdom the following:

 

“Dr. Madaus published the result of his research on a medicinal sterilization (both articles are enclosed). Reading these articles, the immense importance of this drug in the present fight of our people occurred to me. If, on the basis of this research, it were possible to produce a drug which, after a relatively short time, effects an imperceptible sterilization on human beings, then we would have a new powerful weapon at our disposal. The thought alone that the 3 million Bolsheviks, at present German prisoners, could be sterilized so that they could be used as laborers but be prevented from reproduction, opens the most far-reaching perspectives.

“Madaus found that the sap of the Schweigrohr (caladium seguinum) when taken by mouth or given as injection to male but also to female animals, after a certain time produces permanent sterility. The illustrations accompanying the scientific article are convincing.

 

If my ideas meet your approval the following course should be taken:

1. Dr. Madaus must not publish any more such articles. (The enemy listens!)

2. Multiplying the plant (easily cultivated in greenhouses!)

3. Immediate research on human beings (criminals!) in order to determine the dose and length of the treatment.

4. Quick research of the constitutional formula of the effective chemical substance in order to

5. Produce it synthetically if possible.

“As German physician and Chief Physician of the Reserves of the German Wehrmacht, retired (d.R.a.D.), I undertake to keep secret the purpose as suggested by me in this letter.

“Heil Hitler!

[Signed]  “Dr. Pokorny

“Specialist for skin and venereal diseases.

“Komotau, October 1941.”

The defendant has attempted to explain his motives for sending the letter by asserting that for some time prior to its transmittal he had known of Himmler’s intentions to sterilize all Jews and inhabitants of the eastern territories, and had hoped to find some means of preventing the execution of this dreadful program. He knew, because of his special experience as a specialist in skin and venereal diseases, that sterilization of human beings could not be effected by the administration of caladium seguinum. He thought, however, that if the articles written by Madaus could be brought to the attention of Himmler, the latter might turn his attentions to the unobtrusive method for sterilization which had been suggested by the articles and thus be diverted, at least temporarily, from continuing his program of castration and sterilization by well-known, tried and tested methods. Therefore the letter was written—so explained the defendant—not for the purpose of furthering, but of sabotaging the program.

We are not impressed with the defense which has been tendered by the defendant and have great difficulty in believing that he was motivated by the high purposes which he asserted impelled him to write the letter. Rather are we inclined to the view that the letter was written by Pokorny for very different and more personal reasons.

Be that however as it may, every defendant is presumed to be innocent until he has been proved guilty. In the case of Pokorny the prosecution has failed to sustain the burden. As monstrous and base as the suggestions in the letter are, there is not the slightest evidence that any steps were ever taken to put them into execution by human experimentation. We find, therefore, that the defendant must be acquitted—not because of the defense tendered, but in spite of it.

CONCLUSION

Military Tribunal I finds and adjudges that the defendant Adolf Pokorny is not guilty of the charge contained in the indictment, and directs that he be discharged from custody under the indictment when the Tribunal presently adjourns.

OBERHEUSER

The defendant Oberheuser is charged under counts two and three of the indictment with Sulfanilamide, Bone, Muscle and Nerve Regeneration and Bone Transplantation, and Sterilization Experiments.

The charge of participation in the sterilization experiments has been abandoned by the prosecution and will not be considered further.

The defendant Oberheuser joined the league of German Girls (BDM) in 1935 and held the rank of “block leader.” In August 1937 she became a member of the Nazi Party. She was also a member of the Association of National Socialist Physicians. She volunteered for the position of a camp doctor in the women’s department of the Ravensbrueck concentration camp in 1940 and remained there until June 1943. She was then given a position as assistant physician in the Hohenlychen Hospital under the defendant Gebhardt.

Regarding her connection with both the sulfanilamide and the bone, muscle, and nerve regeneration and bone transplantation experiments, the same facts are applicable as were presented in the cases of the defendants Fischer and Gebhardt. Fischer and Oberheuser were Gebhardt’s active agents in carrying out these experiments. They did a great deal of the actual work. They personally committed atrocities involved in the experiments.

A few facts produced in evidence regarding the special work of defendant Oberheuser in these experiments are entitled to comment.

Oberheuser was thoroughly aware of the nature and purpose of the experiments. She aided in the selection of the subjects, gave them physical examinations, and otherwise prepared them for the operation table. She was present in the operating room at the time of the operations and assisted in the operational procedures. She faithfully cooperated with Gebhardt and Fischer at the conclusion of each operation by deliberately neglecting the patients so that the wounds which had been given the subjects would reach the maximum degree of infection.

Testimony of the witness Sofia Maczka, an X-ray technician in the camp at Ravensbrueck, is that deaths occurred among the experimental subjects. Most of these deaths could have been averted by proper post-operative care, proper treatment, or by the amputation of badly infected members.

In one instance—the case of a Krystina Dabska—small pieces of bone were cut from both legs of the subject. Witness Maczka testified that she read on the cast of the patient that on one leg periosteum had been left and on the other leg periosteum had been removed together with bone. Because she was of the opinion that the purpose of the experiment had been to check regeneration, the witness asked the defendant Oberheuser, “How do you expect to get regeneration of bone if the bones are removed with periosteum?” To this the defendant replied, “That is just what we want to check.”

Nonconsenting non-German nationals were used in at least some of the experiments. Many of them died as a result of the experiments. To the extent that the crimes committed were not war crimes, they were crimes against humanity.

CONCLUSION

Military Tribunal I finds and adjudges that the defendant Herta Oberheuser is guilty under counts two and three of the indictment.

FISCHER

The defendant Fischer is charged under counts two and three with Sulfanilamide and Bone, Muscle and Nerve Regeneration and Bone Transplantation Experiments.

Fritz Fischer joined the Allgemeine SS in February 1934 and the NSDAP in 1939. In the latter year he joined the Waffen SS and was assigned to the SS unit in the Hohenlychen Hospital as a physician subordinated to the defendant Gebhardt. In June 1940 he was transferred to the SS regiment Leibstandarte “Adolf Hitler”, and returned the same year to Hohenlychen as assistant physician to Gebhardt, where he remained until May 1943. He then served as a surgeon on both the eastern and western fronts and, after having been wounded in August 1944, came back to Hohenlychen as a patient. In December 1944 he was assigned to the Charity Hospital in Berlin, but returned again to Hohenlychen as Gebhardt’s assistant in April 1945. In the Waffen SS he attained the rank of Sturmbannfuehrer (major).

SULFANILAMIDE EXPERIMENTS

Gebhardt, as shown elsewhere in this judgment, was in personal charge of the work being done in this field by his assistant Fritz Fischer. That the latter performed most of the sulfanilamide experimental work is not denied by him; on the contrary, he freely admits it. The defense offered in his behalf is twofold; that the experimental subjects were to have alleged death sentences, then impending, commuted to something less severe in the event they survived the experiments; and that defendant Fischer was acting under military orders from his superior officer, Gebhardt. These defenses have been considered and separately rejected in other parts of this judgment.

It is true, however, that paragraph 4 (b) of Article II of Control Council Law No. 10 reads:

“The fact that any person acted pursuant to the order of his government, or of a superior, does not free him from responsibility for crime, but may be considered in mitigation.”

It is unnecessary to take up and answer all the arguments that might be presented upon whether or not Fischer is entitled to a mitigation of sentence due to the circumstances claimed as the basis of such mitigation. He acted with most complete knowledge that what he was doing was fundamentally criminal, even though directed by a superior. Under the circumstances his defense must be rejected, and he must be held to be guilty as charged.

BONE, MUSCLE AND NERVE REGENERATION AND BONE

TRANSPLANTATION

These experiments have been discussed in connection with the case of the defendant Gebhardt, who was assisted therein by the defendant Fischer. Testimony and exhibits now constituting parts of the record in this case reveal that Fischer has offered no substantial defense to the charge. Indeed, criminal connection with these experiments is admitted, and the admission includes the defendant’s own testimony that he personally performed at least some of the operations. It only remains for the Tribunal to hold that on the specification above-mentioned the defendant Fischer is guilty.

To the extent that the crimes committed by defendant Fischer were not war crimes they were crimes against humanity.

MEMBERSHIP IN CRIMINAL ORGANIZATION

Under count four of the indictment Fritz Fischer is charged with being a member of an organization declared criminal by the judgment of the International Military Tribunal, namely, the SS. The evidence shows that Fritz Fischer became a member of the SS in 1934 and remained in this organization until the end of the war. As a member of the SS he was criminally implicated in the commission of war crimes and crimes against humanity, as charged under counts two and three of the indictment.

CONCLUSION

Military Tribunal I finds and adjudges that the defendant Fritz Fischer is guilty under counts two, three, and four of the indictment.

 

[signed]Walter B. Beals
Presiding Judge.
Harold L. Sebring
Judge.
Johnson T. Crawford
Judge.

SENTENCES

Presiding Judge Beals: Military Tribunal I has convened this morning for the purpose of imposing sentences upon the defendants who have been on trial before this Tribunal and who have been adjudged guilty by the Tribunal.

Karl Brandt, Military Tribunal I has found and adjudged you guilty of war crimes, crimes against humanity, and membership in an organization declared criminal by the judgment of the International Military Tribunal, as charged under the indictment heretofore filed against you. For your said crimes on which you have been and now stand convicted Military Tribunal I sentences you, Karl Brandt, to death by hanging.

Siegfried Handloser, Military Tribunal I has found and adjudged you guilty of war crimes and crimes against humanity, as charged under the indictment heretofore filed against you. For your said crimes on which you have been and now stand convicted, Military Tribunal I sentences you, Siegfried Handloser, to imprisonment for the full term and period of your natural life, to be served at such prison or prisons, or other appropriate place of confinement, as shall be determined by competent authority.

Oskar Schroeder, Military Tribunal I has found and adjudged you guilty of war crimes and crimes against humanity, as charged under the indictment heretofore filed against you. For your said crimes on which you have been and now stand convicted Military Tribunal I sentences you, Oskar Schroeder, to imprisonment for the full term and period of your natural life, to be served at such prison or prisons, or other appropriate place of confinement, as shall be determined by competent authority.

Karl Genzken, Military Tribunal I has found and adjudged you guilty of war crimes, crimes against humanity, and membership in an organization declared criminal by the judgment of the International Military Tribunal, as charged under the indictment heretofore filed against you. For your said crimes on which you have been and now stand convicted, Military Tribunal I sentences you, Karl Genzken, to imprisonment for the full term and period of your natural life, to be served at such prison or prisons, or other appropriate place of confinement, as shall be determined by competent authority.

Karl Gebhardt, Military Tribunal I has found and adjudged you guilty of war crimes, crimes against humanity, and membership in an organization declared criminal by the judgment of the International Military Tribunal, as charged under the indictment heretofore filed against you. For your said crimes on which you have been and now stand convicted, Military Tribunal I sentences you, Karl Gebhardt, to death by hanging.

Rudolf Brandt, Military Tribunal I has found and adjudged you guilty of war crimes, crimes against humanity, and membership in an organization declared criminal by the judgment of the International Military Tribunal, as charged under the indictment heretofore filed against you. For your said crimes on which you have been and now stand convicted, Military Tribunal I sentences you, Rudolf Brandt, to death by hanging.

Joachim Mrugowsky, Military Tribunal I has found and adjudged you guilty of war crimes, crimes against humanity, and membership in an organization declared criminal by the judgment of the International Military Tribunal, as charged under the indictment heretofore filed against you. For your said crimes on which you have been and now stand convicted Military Tribunal I sentences you, Joachim Mrugowsky, to death by hanging.

Helmut Poppendick, Military Tribunal I has found and adjudged you guilty of membership in an organization declared criminal by the judgment of the International Military Tribunal, as charged under the indictment heretofore filed against you. For your said crimes on which you have been and now stand convicted, Military Tribunal I sentences you, Helmut Poppendick, to imprisonment for a term of ten years, to be served at such prison or prisons, or other appropriate place of confinement, as shall be determined by competent authority.

Wolfram Sievers, Military Tribunal I has found and adjudged you guilty of war crimes, crimes against humanity, and membership in an organization declared criminal by the judgment of the International Military Tribunal, as charged under the indictment heretofore filed against you. For your said crimes on which you have been and now stand convicted, Military Tribunal I sentences you, Wolfram Sievers, to death by hanging.

Gerhard Rose, Military Tribunal I has found and adjudged you guilty of war crimes and crimes against humanity, as charged under the indictment heretofore filed against you. For your said crimes on which you have been and now stand convicted Military Tribunal I sentences you, Gerhard Rose, to imprisonment for the full term and period of your natural life, to be served at such prison or prisons, or other appropriate place of confinement, as shall be determined by competent authority.

Viktor Brack, Military Tribunal I has found and adjudged you guilty of war crimes, crimes against humanity, and membership in an organization declared criminal by the judgment of the International Military Tribunal, as charged under the indictment heretofore filed against you. For your said crimes on which you have been and now stand convicted, Military Tribunal I sentences you, Viktor Brack, to death by hanging.

Hermann Becker-Freyseng, Military Tribunal I has found and adjudged you guilty of war crimes and crimes against humanity, as charged under the indictment heretofore filed against you. For your said crimes on which you have been and now stand convicted, Military Tribunal I sentences you, Hermann Becker-Freyseng, to imprisonment for a term of twenty years, to be served at such prison or prisons, or other appropriate place of confinement, as shall be determined by competent authority.

Waldemar Hoven, Military Tribunal I has found and adjudged you guilty of war crimes, crimes against humanity, and membership in an organization declared criminal by the judgment of the International Military Tribunal, as charged under the indictment heretofore filed against you. For your said crimes on which you have been and now stand convicted, Military Tribunal I sentences you, Waldemar Hoven, to death by hanging.

Wilhelm Beiglboeck, Military Tribunal I has found and adjudged you guilty of war crimes and crimes against humanity, as charged under the indictment heretofore filed against you. For your said crimes on which you have been and now stand convicted Military Tribunal I sentences you, Wilhelm Beiglboeck, to imprisonment for a term of fifteen years, to be served at such prison or prisons, or other appropriate place of confinement, as shall be determined by competent authority.

Herta Oberheuser, Military Tribunal I has found and adjudged you guilty of war crimes and crimes against humanity, as charged under the indictment heretofore filed against you. For your said crimes on which you have been and now stand convicted Military Tribunal I sentences you, Herta Oberheuser, to imprisonment for a term of twenty years, to be served at such prison or prisons, or other appropriate place of confinement, as shall be determined by competent authority.

Fritz Fischer, Military Tribunal I has found and adjudged you guilty of war crimes, crimes against humanity, and membership in an organization declared criminal by the judgment of the International Military Tribunal, as charged under the indictment heretofore filed against you. For your said crimes on which you have been and now stand convicted Military Tribunal I sentences you, Fritz Fischer, to imprisonment for the full term and period of your natural life, to be served at such prison or prisons, or other appropriate place of confinement, as shall be determined by competent authority.”


[56] A more correct translation is typhus, see vol. I, p. 13.

[57] Indictment originally read “January 1943” but was amended by a motion filed with the Secretary General. See Arraignment, vol. I, p. 22.

[58] Trial of the Major War Criminals, vol. I, p. 269, Nuernberg, 1947.


XIII. PETITIONS

a. Introduction

Article XV of Ordinance No. 7 of Military Government for Germany (US) provides that the judgment of the Tribunal as to the guilt or innocence of any defendant shall be final and not subject to review. However, Article XVII provides that the Military Governor has the power to mitigate, reduce, or otherwise alter the sentence imposed by the Tribunal, but may not increase the severity thereof. The petitions on behalf of defendants seeking a revision of the sentences have ordinarily been called clemency pleas.

All 16 defendants found guilty by the Tribunal in case No. I petitioned for clemency to the Military Governor of the United States Zone of Occupation in accordance with Article XVII of Ordinance No. 7. Each of the condemned defendants, with the exception of the defendant Poppendick, also petitioned to the Supreme Court of the United States for a writ of habeas corpus and for a writ of prohibition against the proceeding or an order nullifying the trial and setting the defendants at liberty. Moreover, all defendants, with the exception of the defendant Becker-Freyseng, filed appeals of some kind with the Secretary of War. From these various types of petitions, six are set forth below in whole or in part as follows: petition of appeal to the Secretary of War for the defendant Karl Brandt, page 302; petition for a writ of habeas corpus and a writ of prohibition to the Supreme Court of the United States by the defendant Rose, pp. 303 to 306; extracts from the petition for a writ of habeas corpus and a writ of prohibition to the Supreme Court of the United States by the defendant Schroeder, pp. 307 to 308; petition for review to the Military Governor of the United States Zone of Occupation for the defendant Genzken, pp. 309 to 318; clemency plea to the Military Governor of the United States Zone of Occupation for the defendant Rudolf Brandt, pp. 319 to 321; and clemency plea to the Military Governor of the United States Zone of Occupation for the defendant Poppendick, pp. 322 to 326.


b. Selections from the Petitions to the Military Governor, the
Supreme Court of the United States, and to the
Judge Advocate General

FOR THE DEFENDANT KARL BRANDT

Nuernberg, 4 September 1947.

The

Secretary of War,

Judge Advocate General,

War Department,

Washington, D.C.,

United States of America.

Professor Dr. Karl BRANDT, Petitioner,

  Defense Counsel Dr. R. Servatius, attorney-at-law, Cologne

      vs.

  United States of America

Petition of Appeal

No.——

As defense counsel of the defendant Professor Dr. med. Karl Brandt, I herewith lodge an appeal against the verdict of the Military Tribunal No. I at Nuernberg in Case I, of 19 and 20 August 1947, by which the defendant was sentenced to death. For justification of my appeal against the indictment on which the verdict is based, as well as the verdict itself, I refer to the following documents, copies of which are attached:

(a) Application for review, dated 28 August 1947, addressed to the Chief of Military Government for the American Zone of Occupation in Germany.

(b) Application for writ of habeas corpus, dated 28 August 1947, addressed to the Supreme Court of the United States of America.

It follows from these attached documents that the defendant Karl Brandt was unlawfully deprived of the possibility to lodge an appeal before a Military Tribunal consisting of medical experts.

A re-trial before a court of higher order is necessary in order to re-examine the errors committed by the Tribunal in ascertaining the facts of the case and applying the law.

I request:

(a) that the verdict of the Military Tribunal, dated 20 August 1947, be annulled.

(b) that a court of appeal be formed for a new trial of the case.

[Signature]  Dr. R. Servatius

Attorney-at-law.


FOR THE DEFENDANT ROSE

Prof. Dr. med. Gerhard Rose Nuernberg, 4 September 1947

POW A/938984

Palace of Justice,

Nuernberg, Germany

Defense Counsel:Dr. Heinz [Hans] Fritz
Attorney-at-law,
Bavariaring 14,
Munich, Germany
 
To the
Supreme Court of the United States of America
Washington, D.C.
 
Prof. Dr. med. Gerhard Rose, Petitioner
vs.
United States of America
 
Petition for     Writ of Habeas Corpus
    and
Petition for     Writ of Prohibition

No.——

I, the undersigned Prof. Dr. Gerhard Rose, was sentenced, in the verdict of the American Military Tribunal I in Nuernberg, Germany, that was announced on 19 and 20 August 1947, of Case I, United States of America vs. Karl Brandt and others, for war crimes and crimes against humanity, as defined in Control Council Law No. 10 of 20 Dec 1945, to life imprisonment.

I pray:

(1) that a writ of habeas corpus be issued by this Court, directed to Lieutenant General Lucius D. Clay, Commanding General, United States Army Forces, Germany, commanding him to produce the body of the petitioner before your Court or some member thereof at a time and place therein to be specified, then and there to receive and to do what your honorable Court shall order concerning his confinement and trial as an accused war criminal and that he be ordered returned to the status of, and internment as a prisoner of war in conformity with the provisions of Article 9 of the Geneva Convention of July 27, 1929, relative to the treatment of prisoners of war and of paragraph 82 of the Rules of Land Warfare [U. S. Field Manual 27-10], and

(2) that a writ of prohibition be issued by this Court prohibiting the respondent from proceeding with the trial and that the petitioner be discharged from the offenses and confinement aforesaid,

(3) that the costs of the court shall not be levied, because I am a prisoner of war and my property has been confiscated by the Control Council for Germany.

As reasons for the above requests I offer the following:

The sentence imposed on me not only violates valid international law, but also legal principles whose observance by all the courts of the United States is guaranteed by the Constitution of the United States of America.

The basic principle that has been violated is that no one may be deprived of the judge [justice] provided for by law and that each defendant must be granted a regular trial.

The following violations are charged in particular:

The sentence was passed in violation of Article 63 of the Geneva Convention of 1929. I am a medical officer and was Generalarzt in the Reserve, which is equivalent to a brigadier general in the Medical Corps in the American Army. In May 1941 I was in the Luftwaffe hospital at Kitzbuehl in Austria and became a prisoner of war. Shortly afterwards I was flown to England and taken to Camp Latimer (Bucks), known as POW Camp 7. There I was registered as a prisoner of war in the middle of June 1945 and received the POW number A 938984. I was informed that I was a British prisoner of war. I am still a prisoner of war today, because I was neither discharged de facto nor was I ever given discharge papers or shown discharge papers that had been filled out. As a prisoner of war I have a right to have my case tried by a court martial, as would be correct in case an Allied medical officer of equal rank were to be indicted on the same charges. This Court must not only be an officers’ court composed of judges holding corresponding rank, but it must also be a professional court, because it must be composed of medical officers. Since the American Military Tribunal I is not such a court, it was, for example, not in a position to correctly judge my activity as scientific consultant medical officer in relationship to that of a commanding officer.

Article 63 of the Geneva Convention of 1929 purposely makes no differentiation between crimes that a prisoner of war commits during his prisoner of war captivity and those which he committed before he became a prisoner of war. In accordance with the purpose and spirit of the Geneva Convention of 1929, the prisoners of war are to be protected by this provision from being brought up before a special court or from any limitation of their legal rights.

 

(2) There is a violation of Article 64 of the Geneva Convention because the legal remedies that would be available to an Allied medical officer in a corresponding case cannot be used in the case of the sentence that has been imposed upon me, because Article 15 of Ordinance No. 7 of the American Military Government in Germany provides that the verdicts of the Military Tribunals are final and incontestable.

 

(3) There is a violation of Article 60 of the Geneva Convention, because Switzerland was not informed, as the protecting power for prisoners of war, of the criminal proceedings pending against me.

 

(4) The sentence imposed on me violates generally recognized legal principles. It is based on the Control Council Law No. 10, dated 20 December 1945, and the ex post facto definitions contained therein. The sentence has inflicted punishment on me for crimes against humanity, that is, on the basis of an act which was for the first time declared punishable by Control Council Law No. 10.

The suspension of this universally recognized legal principle by a new law cannot change justice itself. The validity of this special law must be tested by the court.

 

(5) The sentence violates the basic principle nulla poena sine culpa, because it punished me according to Article II, 2c and d of the Control Council Law. These parts of the Control Council Laws allow punishment for mere consent to an act and for a merely objective “connection” with the planning or execution of such act. These provisions represent new substantive law that has been created ex post facto.

 

(6) During the trial I was limited in my defense in an inadmissible way. My defense counsel, Attorney Dr. Fritz, twice requested, in the prescribed manner, that Prof. Dr. Blanc, a French citizen and director of the Pasteur Institute in Casablanca, Morocco, be summoned as an expert witness in the examination of the research work of Prof. Haagen. The medical research work of Prof. Haagen concerns such difficult medical problems that it cannot, in my opinion, be judged by judges who lack medical training, without the expert testimony of a capable specialist. However, the Court did not approve the requests. This is in my opinion the only reason that I was found guilty in connection with the research work of Haagen.

 

(7) It is further asserted that the principle of oral proceedings was violated. In the final stages of the trial the Court ordered a partly written procedure. Although the main trial had lasted many months and there was an extremely abundant amount of material to discuss, from a factual as well as a legal standpoint, my defense counsel was only allowed one hour for his closing speech. As for the remaining arguments he was advised to present a closing brief. In this way the protection of publicity was denied and the guarantee removed that the Court would really take cognizance of these written statements.

It was not possible for me to receive information concerning these written statements of my co-defendants in time to take action thereon.

The contents of the closing brief which my defense counsel submitted, and the contents of his rebuttal to the closing brief submitted by the prosecutor against me have obviously not been considered in the findings of the Court, although the Court described the closing brief which it demanded as the most important part of the defense. The English translations of the closing brief and rebuttal to the closing brief of the prosecution arrived so late that it seems impossible that the Court could have taken note of the contents before writing the verdict.

Several closing briefs which had been submitted by the defense counsels of my co-defendants were not even available at the time when the verdict was read.

I assume that the Court could not peruse the rebuttal of my defense counsels to the closing brief of the prosecution before writing the verdict, because the verdict, insofar as it pertains to my case, contains several obviously false statements of facts and furthermore does not even analyze these statements.

 

(8) The verdict does not have, according to the provisions of Military Government Ordinance No. 7, sufficient reasons to back it up. For instance, it is impossible to determine whether the Court investigated the possibility of duress that would preclude punishment.

Insofar as incompetency of the American Military Tribunal No. I is asserted in my case, I point to the fact that it was not possible for me to object earlier on account of Article II e of Ordinance No. 7.

I reserve the right to submit further statements and evidence later.

[Signature]  Dr. Gerhard Rose.


FOR THE DEFENDANT SCHROEDER

To the

Supreme Court

of the United States of America

Washington

through the office of the General Secretary of the

U. S. Military Tribunal I

Nuernberg.

 

Oskar Schroeder, Petitioner

vs.

The United States of America

Oskar Schroeder, former Generaloberstabsarzt (Lieutenant General) of the Luftwaffe (German Air Force) at present in the prison of the Court in Nuernberg, Germany.

Counsel for the defendant: Dr. Hanns Marx at present at the Military Tribunal I Nuernberg, Roonstrasse 15.

Writ of Habeas Corpus and

Writ of Prohibition


Here too, the Court found that I am guilty merely because of the fact that contrary to duty I did not supervise my subordinates.

Finally the judgment found me guilty with regard to the responsibility for gas experiments. Here the judgment states:

“A certain Oberarzt Wimmer, a staff physician of the Luftwaffe worked with Hirt on the gas experiments throughout the period.

“We discussed the duty which rests upon a commanding officer to take appropriate measures to control his subordinates, in dealing with the case of Handloser. We shall not repeat what we said there. Had Schroeder adopted the measures which the law of war imposes upon one in position of command to prevent the actions of his subordinates amounting to violations of the law of war, the deaths of the non-German nationals involved in the gas experiments might well have been prevented.”


III

A further infringement against the habeas corpus is the fact that while I have been found guilty as being responsible for the Lost experiments, although I have never been indicted on this count.

The verdict of the Military Tribunal I states on page 11 the names of those defendants who have been accused of having borne special responsibility for the Lost (mustard) gas experiments. My name does not appear on that list.

On page 187 of the verdict, the Court describes the importance that this enumeration of defendants has in relation to the various individual counts of the indictment. It says:

“In preparing counts II and III of the indictment, the prosecution elected to frame its pleadings in such a manner [page 7 of the original] as to charge all defendants with the commission of war crimes and crimes against humanity, generally, and at the same time to name in each subparagraph dealing with medical experiments only those defendants particularly charged with responsibility for each particular item.”

The Court goes on to say:

“In our view this constituted in effect, a bill of particulars and was, in essence, a declaration to the defendants upon which they were entitled to rely in preparing their defenses, that only such persons as were actually named in the designated experiments would be called upon to defend against the specific items.”

As the Court repeatedly gave evidence during the course of the proceedings that it adhered to this view I did not defend myself, did not need to defend myself and could not defend myself against the accusation that I had participated in the Lost experiments.

Although the Court finds on page 187 of the verdict:

“We think it would be manifestly unfair to the defendant to find him guilty of an offense with which the indictment affirmatively indicated he was not charged,”

it has still found me guilty because of responsibility for the Lost experiment, so that in view of the Court’s own statements as contained in the verdict, my sentence constitutes, insofar as it concerns this matter, a gross injustice.

I believe that the sentence of the Military Tribunal I violates a principle insofar as each defendant must be told clearly what crime he has been charged with, and that he must have opportunity to defend himself against these accusations.

It is this principle that is being violated in the findings of the Court against me. In my opinion, it infringes thus the principle of legal heading laid down in the habeas corpus. It is therefore obviously unjust, according to the wording of the verdict itself.



FOR THE DEFENDANT GENZKEN

Dr. R. Merkel

Defense Counsel of Defendant Dr. Karl Genzken

Nuernberg, 2 September 1947.

To the

American Military Governor for Germany

General Lucius D. Clay

via

the Secretary General of the

Military Tribunal I

Nuernberg.

Concerning:Confirmation of the sentence of Military Tribunal I, Nuernberg, of 19 August 1947.

Karl Genzken, defendant in Case I, defended by Attorney-at-Law Dr. R. Merkel, Nuernberg, by verdict of Military Tribunal I of 19 August 1947 was found guilty of war crimes, crimes against humanity, and membership in the SS—counts two, three, and four of the indictment—and was sentenced to life imprisonment.

I request that the sentence may not be confirmed, since the defendant is innocent of the punishable participation in the typhus experiments in Buchenwald with which he is charged.

The verdict of Military Tribunal I, Nuernberg of 19-20 August 1947 decided that Genzken in his official position was responsible for, cooperated in, and promoted the typhus experiments which were carried out on non-Germans against their will, and in the course of which, and as a result of which, cases of death occurred.

On the basis of the verdict it is certain that the defendant himself did not actively participate in the typhus experiments; he never entered the Buchenwald concentration camp during the war and never saw the typhus experimental station in Block 46.

The verdict is based on the presupposition—

(1) that Genzken before 1 September 1943—as superior of Mrugowsky, the Chief of the Hygiene Institute, and of Ding in his capacity as an assistant in this Institute—has had the command and thus the official supervision over the experiments in the typhus experimental station in Block 46 of the Buchenwald concentration camp,

(2) that Genzken before 1 September 1943 was acquainted with the kind and scope of the activity of Mrugowsky and Ding, who were supposedly subordinated to him in the field of typhus research, and

(3) that he nevertheless failed to make sure that this research work was carried out within legally permissible limits.

These statements of the verdict are not correct, since they do not take into account in any way the actual facts which emerged on the basis of the extensive evidence submitted by the prosecution and defense.

I
Genzken had no command and no official supervision over the
typhus experiments in Block 46

The research for a new typhus vaccine for the Waffen SS was purely scientific research in the medical field. In contrast to the Chiefs of the Medical Services of the three Wehrmacht branches (Army, Air Corps, Navy) scientific research and planning did not belong to the tasks delegated to the Chief of the Medical Service of the Waffen SS. The official agency in charge of scientific research and planning for all the organizations of the SS and the police was rather exclusively Reich Physician SS and Police Professor Dr. Grawitz (pages 4-6 of closing brief of the defense).

Exhibit No. 39 of the prosecution proves that Grawitz in 1942 without success requested funds for the intended establishment of several research institutes. However, in view of the imminent pressing danger of typhus, Grawitz, at the order of Himmler, gave the command to establish a typhus experimental station in connection with and sharing the funds appropriated for Block 46 of the Buchenwald concentration camp and in December 1941 he appointed Dr. Ding of the Hygiene Institute of the Waffen SS head of Block 46. In reference to this Mrugowsky states: “Himmler did not order me to take charge of these experiments, but at the suggestion of Grawitz assigned these duties to Dr. Ding.” (p. 5067 of the English transcript.) In the affidavit of S. Dumont, we read: “Mrugowsky told me that Grawitz will transmit Himmler’s order direct to Ding” (Document Mrugowsky 38, Exhibit 13, p. 50 Document book Mrugowsky I). Finally Blumenreuther declares in his affidavit of 3 February 1947 (Document Mrugowsky No. 26, Exhibit 6, p. 170 Document Book Mrugowsky I) as follows: “In 1942 Grawitz brought about Himmler’s order to establish in the Buchenwald concentration camp an experimental station for typhus research and appointed Dr. Ding to take charge of this experimental station.” Thus Ding left the Hygiene Institute, when his research work began, and from this time on he was no longer a subordinate of Genzken, but as chief of the research department in Block 46 was directly, immediately, and exclusively subordinate to Grawitz. As oldest hygienic expert, Grawitz consulted his consulting hygienist Mrugowsky in the course of his researches concerned with typhus. This latter called himself “Reich Physician SS and Leading Police Hygienist” in his report of 5 May 1942 which was mentioned in the verdict (Mrugowsky, Exhibit 20, p. 86, Doc. Book Mrug. I). As a result of the shortage of hygienists, Mrugowsky, in his capacity as head of the only Hygiene Institute on the home front, was available also to the Reich Physician for his medical duties concerned with all the branches of the SS and for his scientific research tasks. As head of the Hygiene Institute and as head of Office XVI concerned with questions of group hygiene of the Waffen SS, Mrugowsky was subordinate to Genzken, not however in his capacity as hygienic consultant to the Reich Physician. In connection with these problems, to which belonged also the typhus vaccine research, Mrugowsky was subordinate only to Reich Physician SS Grawitz and not to Genzken. If, as the verdict presupposes, the relationship of giving orders had really been the following: Himmler-Grawitz-Genzken-Mrugowsky-Ding, then Genzken would have had to take orders from Grawitz and would have been called for conferences with Grawitz. This has not been established by the prosecution.

Through the examination of witnesses by prosecution and defense, it was established that there were two separate institutions in Buchenwald: the typhus research institute from December 1941 in Block 46 and the typhus vaccine manufacturing station from the fall of 1943 in Block 50 (see page 35, Closing Brief of the Defense and Exhibit Genzken Exh. No. 5). The manufacturing station in Block 50, and Ding as its head, would have been subordinate to Dr. Genzken as such if the manufacture of the new SS typhus vaccine had been started before 1 September 1943. However, this was definitely not the case; it was still in a preparatory state (see page 46, closing brief of the defense). If on page 96 (German text) of the verdict it is furthermore stated that the official channels were arranged in this manner: Himmler-Grawitz-Genzken-Mrugowsky-Ding, then this statement also is in obvious contradiction to the facts established in a clear and conclusive manner by the examination of witnesses.

Because, as far as the channels of command for the typhus experimental station are concerned, the following points prove that these channels of command ran Himmler-Grawitz-Ding for Block 46:

(1) Dr. Morgen states in his affidavit Mrugowsky Exh. 107 (Doc. Mrug. 114, Doc. Book Mrug. Supplement II, p. 54), that Grawitz gave written and direct order to Ding to carry out the typhus research without Genzken’s participation. Ding showed Morgen the written order from Grawitz.

(2) The letterhead which Ding used before spring 1943, as head of the experimental station for typhus and virus research, read as follows: “Reich Fuehrer SS—Typhus-Experimental Station, Buchenwald” (see Doc. Genzken No. 2, Genzken Exh. 8).

(3) The prosecution witness Kogon confirms the fact that all reports went through Mrugowsky directly to Grawitz and not by way of Genzken.

(4) Genzken and Mrugowsky both testify under oath that Himmler and Grawitz gave the order for the establishment of the experimental station to Ding directly.

(5) In Exhibit 283 of the prosecution, Ding states “that Grawitz, in agreement with the leading physician of the concentration camp Dr. Lolling appointed Dr. Hoven as Ding’s deputy in Buchenwald”. The appointment, therefore, did not take place by way of Genzken.

 

The order channel, Himmler-Grawitz-Genzken-Mrugowsky-Ding, as stated in the verdict, is based exclusively on the affidavit of Dr. Hoven dated 24 October 1946, Prosecution Exh. No. 281. When he was interrogated, Hoven stated under oath that this channel of command was correct only for the manufacturing station in Block 50 and not for the research institute in Block 46 (see p. 9913 of the English record). When Mrugowsky was interrogated, he also stated under oath “that this command relationship referred solely to the vaccine manufacture in Block 50. This chain of command did not refer to Block 46, and insofar as it is touched by it, this channel of giving orders is not correct” (see p. 46 closing brief of the defense).

From all this evidence it follows conclusively that Hoven’s statement cannot be used as supporting evidence for a conviction against Genzken. For he was not a station on this channel of giving orders and had never had anything to do about giving orders concerning the carrying out of the typhus experiments in Block 46 until 1 September 1943.

If, therefore, the verdict states that Genzken was responsible for the carrying out of the typhus experiments, then the verdict does not take into consideration the proven fact that not Genzken, but Grawitz was the one who gave the order to carry out research experiments in the concentration camp Buchenwald on concentration camp inmates. Only he who gives the order to carry out an action and who was a party to it in some other ways can be responsible for the act. Nothing of the sort has been proved against Genzken. If, as established by Document Mrug. Exh. No. 107, Grawitz gave the order to carry out typhus experiments to Ding, then it is impossible that Genzken too could have given such an order, if for no other reason, because he was never the competent authority for scientific research and projects. Furthermore on the basis of his testimony as a witness, it has been established that he never received an order to this effect by Grawitz, and that Grawitz purposely excluded him from exerting any influence on the research projects in Block 46.

In Genzken Exhibit No. 3, Mrugowsky confirms “that Grawitz, in conversations with him, frequently emphasized that he—Grawitz—was the only one responsible for research and planning assignments within the SS, and that Genzken had nothing to do with them.”

The assumption in the verdict is, therefore, not correct that Ding undertook typhus research “for” the Hygiene Institute (page 97, German text of the verdict). As already mentioned above and as proved beyond doubt during the trial, Ding did not undertake these typhus experiments for the Hygiene Institute of the Waffen SS, but exclusively for his employer and commander, Grawitz.

Genzken, therefore, was not responsible for the carrying out of the typhus experiments, since he neither commanded nor ordered those experiments.

If furthermore the Tribunal is trying to construe incriminating evidence against Genzken by claiming that Genzken provided the funds for Ding’s expenses (see page 97 and 99 of the German text), this too is a mistake. Genzken expressly said under oath that he never provided any money for Ding’s experiments, but that only for Ding’s personal needs had funds been transferred to the Waffen SS through the medical office. In the Genzken Document No. 17, Genzken Exhibit No. 15, Rudolf Tonndorf says “that he never paid or ordered payment for the upkeep or provided other funds for scientific experiments or for institutions which served such purposes, because such scientific research work was not the concern of the medical office of the Waffen SS, but exclusively that of the office of the Reich Physician of the SS and Police, Dr. Grawitz.”

In Genzken Exhibit No. 8, Barnewald states under oath “that the entire administrative care for Block 46 was the concern of the Buchenwald camp administration through the official channels via the patients’ building of the concentration camp. The administration of the medical office of the Waffen SS had officially nothing to do with administrative matters concerning Block 46.”

On page 6 of the Ding diary—Prosecution Exhibit No. 287—it says that Pohl, the Chief of the Main Administrative and Economic Office, gave the order for the enlargement of a block of stone buildings. On page 9 of that same document a conference between Ding and two representatives of the Main Administrative and Economic Office is mentioned (Barnewald and Schlesinger), who occupied themselves with the breeding of experimental animals for the experimental department.

Not Genzken, but the authorities competent for the economic supply of the concentration camps, namely, the Main Administrative and Economic Office therefore carried through the financing of the typhus experiments via the camp administration of the concentration camp Buchenwald.

II
Genzken had no knowledge of the character and of the extent of
the experiments carried out in the field of typhus research
in Block 46

The statement in the verdict (page 105) “that Genzken knew that the prisoners were subjected to cruel medical experiments, in the course of which deaths were occurring,” is not proved in any way.

The verdict itself (page 98) states that Genzken said “that he was aware of the fact that concentration camp inmates were subjected to experiments, and that he stated that he was not advised as to the methods of experimentation.” In the cross-examination, Genzken emphasized that the number of the experimental persons, of the series of experiments, the number of dead, the cultures for infections, and the passages had only become clear to him through the trial, and that the names “Block 46” and “Block 50” had been entirely unknown to him up to the trial. As proved by the evidence it is clear, beyond doubt, that Genzken was not informed either by Grawitz, nor by Ding, nor by Mrugowsky about the details of the experiments. Grawitz who distrusted Genzken, consciously never informed Genzken about a single case of his many secret experiments upon human beings in which, according to the documentary evidence he participated. The defense has given sufficient evidence for this fact. Grawitz even prevented Mrugowsky from informing Genzken (Document Genzken, Exhibit No. 3): “This is none of Genzken’s business.”

It has also been made very clear by the defense that Ding had never given any oral or written information about the details of the experiments. The prosecution could not produce any evidence for such information.

The verdict speaks about a “warm personal friendship between Genzken and Ding” (page 97). Their relationship never was more than one of official comradeship. They did not use the intimate “Du” in addressing each other. Ding was never a guest at Genzken’s house. Once Ding was presented to Frau Genzken. The two women did not know each other at all.

Ding’s scientific reports concerning his research went directly to Grawitz via Mrugowsky. To the question whether it was not true that reports concerning the typhus experiments in Block 46 went to the office of the Reich Physician of the SS and of the Police Grawitz, the prosecution witness Kogon answered by saying: “This is correct” (see p. 1290 of the English Transcript). Mrugowsky said in this connection:

“The reports were never presented to Genzken through me but in a new envelope went directly to Grawitz” (see p. 5366 of the English Transcript). Finally the witness Dumont in figure 7 of her affidavit (Document Mrugowsky, Exhibit 13, page 51, Document Book Mrug. I) declared: “The reports which Ding made concerning his experiments with prisoners were directed to Grawitz via the Hygiene Institute.”

The verdict tries furthermore to base the fact that Genzken knew about the typhus experiments via stating that once a report by Mrugowsky of 5 May 1942 went to him and that besides this, he had been personally informed about everything by Mrugowsky. Both conclusions are also wrong and are in direct contradiction to the evidence.

The only document of the prosecution which, according to the distributor mentions the name of Genzken at all, is the report by Mrugowsky of 5 May 1942, mentioned in the verdict (page 99 and following). The conclusions which the Tribunal feels compelled to have to draw from this report to the prejudice of Genzken do not apply if only for the reason that this report was never made available to Dr. Genzken. Mrugowsky said in this respect: “This report was not presented to Genzken himself but was even later on, until the end, in the files of Amt XVI.” (See reply of the defense to the closing brief of the prosecution, p. 5). Genzken cannot be made responsible for something he, as has been proved, never knew. If he never saw that report of Mrugowsky and if he never knew of its existence, it cannot serve as an incriminating evidence against him.

It is not correct, that before 1 September 1943 Mrugowsky gave regularly, on the average once a week, oral or written reports concerning the typhus experiments to Genzken. Mrugowsky only said that about once a week he reported to Genzken on the hygiene of the troops at the meeting of the Referenten[59] of the medical office. Mrugowsky did this in his capacity as leading hygienist of the medical office (Sanitaets-Amt). Mrugowsky never reported to Genzken about the typhus experiments, on the occasion of these weekly reports and meetings of Referenten (Heads of Referate, Departments in a Ministry), if only because of the fact that these experiments did not fall within the scope of the work of the medical office of the Waffen SS, and because, upon Grawitz order, they were to be kept strictly secret. Written reports were never made at all. The established fact that in the medical office there was not the slightest information about, nor was there ever any discussion of, typhus experiments or any other experiments upon human beings in concentration camps, in itself shows that on Mrugowsky’s part, no oral or written reports were submitted to the medical office of the Waffen SS. Four participants in such meetings of the Referenten of the medical office have borne witness to this fact (see p. 52 of the closing brief for the defense).

The sole report of the spring of 1943 has been described in detail by Mrugowsky. His explanations were incorporated into the verdict word for word. The Tribunal thus considers them to be true and accurate. Mrugowsky and Genzken both stated under oath that Genzken had not seen that infection dates and incidents of death had been marked in the charts which were submitted to him. Mrugowsky stated literally as follows: “I had no cause to call his attention to these things expressly because actually I made no report to him concerning Ding’s experimental series, but merely wanted to give him factual information concerning the protective effect of certain vaccines, which he as head of the medical office had to know.”

On pages 25-26, the verdict states: “In Anglo-Saxon law, every defendant in a criminal proceedings for a crime of which he is accused is considered innocent until the prosecution has brought sound credible proof of his guilt, excluding all reasonable doubt. This assumption applies to the defendant throughout all the stages of the trial, until such proof has been brought. ‘Reasonable doubt’ is, as the name implies, doubt that is in keeping with reason, a doubt that a reasonable person would entertain.”

These statements must be completely and entirely agreed to. But, when applied to this very case of defendant Genzken and especially to his alleged knowledge of the experiments, it can under no circumstances be said that the evidence brought by the prosecution is sufficient to provide the judge with a lasting conviction giving him the moral certainty the accusation is true. For Genzken did not see Mrugowsky’s report, and the single report made by Mrugowsky presents, according to the latter’s statement, no sound and conclusive proof of Genzken’s knowledge.

The verdict holds Genzken responsible (p. 103) “for having nevertheless neglected to reassure himself that his experimental work was being carried out within permissible legitimate limits.”

III
Genzken had no official supervisory power and no chance
to intervene by giving orders and also no reason
at all to reassure himself

As witness, Genzken himself stated that he had merely known that a new typhus vaccine was to be produced in an institute at Buchenwald. Genzken had no knowledge whatsoever in this specialized field of hygiene, as well as no bacteriological training at all, and had never conducted scientific research work. He had no reason at all to assume that, in connection with this research, prisoners would be used in a criminal manner. He was merely of the opinion that the prisoners were brought in for purposes of checking the efficacy of the vaccine, in the form of experimental series which were generally customary in medical research. It was only during the course of the trial that he for the first time learned of deliberate infections and that there had been many deaths during the experimental series. He could not know anything about these facts, especially because the assignment of the prisoners was, as a concentration camp matter, completely outside of his sphere of duties. When, on page 103 (German text), the verdict implies that Genzken had undertaken no steps to reassure himself about the condition of the experimental subjects or of the circumstances under which they had been taken to the experimental block, this implication of the verdict is also incorrect, because the prisoners were not assigned by the medical office of the Waffen SS, but by the office in charge of the administration of the concentration camp in collaboration with the Reich Criminal Police Office. Until the trial, he had not even known that non-Germans were called in as experimental subjects. This and the fact that all experiments were kept strictly secret made it impossible for Genzken to institute investigations or to undertake steps to reassure himself about the condition of the experimental subjects. If, finally, on page 98 of the verdict, reference is made to Ding’s diary in order to support the judgment, it must above all be stated that there are grave doubts as to the probative value of this document (see p. 27 and the following of the closing brief for the defense). The verdict asserts that Kogon kept the original diary. That is not in keeping with the facts; in any case it would have been impossible for the period from December 1941 to June 1943, because Kogon only became Ding’s secretary on the latter date (see p. 1259 of the English Transcript). On page 99 of the verdict, the Tribunal itself makes the following statement in connection with the entry for 9 January 1943 referred to in order to incriminate Genzken: “if Ding’s proven attempts at self-glorification are taken into account, one should not credulously accept this entry in its existing form.” Thus in this connection the statements on page 25 and 26 of the verdict regarding the Tribunal’s conviction apply in particular. If even the Tribunal, and quite rightly so, feels considerable doubts as to the correctness and significance of this entry, it is not permissible to use it in order to the prejudice of the defendant. Besides, Genzken expressly declared as also confirmed by Kogon (see p. 1228 of English Tr.) that he never expressed his approval with regard to the department for typhus research, but that this entry would have to be interpreted as his consent to the change of name of the vaccine production laboratory. This intended change of name was not effected until after 1 September 1943, thus at a time when Genzken was no longer responsible. (See p. 32 and following of the closing brief for the defense.)

The verdict states at the end of the opinion for Genzken’s sentence that he was responsible for the typhus experiments and that he assisted in them and furthered them.

In the face of all this, the result of the case in chief is once again to be summarized as follows:

Genzken had no responsibility, no authority to give orders, and no official supervisory power regarding the Typhus Experimental Station in Block 46 of the Buchenwald concentration camp. All these were in the hands of Grawitz. The latter gave direct orders for the experiments to be carried out to Ding who was his immediate subordinate. Ding’s reports went directly through Mrugowsky to Grawitz and never to Genzken. The latter had no knowledge whatsoever of the criminal methods of the experiments. Genzken had no responsibility, no official supervisory power, and no possibility to interfere by an order; owing to his ignorance of the facts, he had no cause to reassure himself of the conditions under which the experiments took place. Therefore a sentence in connection with counts two and three of the indictment ought not to follow. I, therefore, ask that the verdict should not be confirmed on these points, as Genzken is not guilty of a war crime or of a crime against humanity as is clearly proved by the evidence.

With regard to his membership in the SS, this fact alone is not sufficient to bring about his conviction before the American Military Tribunal. In addition, it would be necessary that his knowledge of criminal experiments should have been proved as in the Poppendick case. However, in accordance with the above statements this is not the case.

Only the competent German Denazification Board could convict the defendant for his SS membership. I therefore propose that the case be referred to the Denazification Board competent for his home town Preetz/Holstein.

[Signature]  Dr. R. Merkel,

Attorney-at-Law.


FOR THE DEFENDANT RUDOLF BRANDT

Dr. Kurt Kauffmann

Counsel for the Defense of the Defendant Rudolf Brandt

Nuernberg, 2 September 1947

To the Military Governor of the American Zone of Occupation in Germany.

 

Through the Secretary General at Military Tribunal No. I, Nuernberg.

 

As counsel for the defense of Rudolf Brandt, who has been sentenced to death, I herewith petition that the judgment of the American Military Tribunal No. I, dated 19-20 August 1947, not be confirmed.

It is perhaps the grandest task of a human being and counsel for the defense to intercede on behalf of another person and to commend him to the clemency of the mighty.

Clemency appeals to the understanding of the great for human weakness. Clemency is the opposite of pure criticism and spiteful anger.

For this reason I remain quiet in the face of the sentence pronounced; I do not raise any complaint because, in one point or another, the decision of the Tribunal does not perhaps entirely agree with my opinion of the course of events, of the position of the defendant at that time, and of his character.

This petition for clemency wants once more to go into the depths of the thoughts which basically were already the subject of my final plea.

One may well believe that at the beginning of the trial, after I had studied the case of Rudolf Brandt, I recognized that this task was hardly to be rewarded with success; nevertheless it seemed to me that it was worth my efforts to take over the defense, since I believed—then as well as now—that Rudolf Brandt is guilty to receive any kind of punishment but not the death sentence.

Not a few of the statements made in my final plea serve this idea. I must admit, however, that even I, as the counsel for his defense, arrived at this conviction only on the strength of the characterization of the personality of the defendant contained in my document book, as well as on the strength of my own judgment of him, which sees in Brandt a beast of burden which dragged on day and night without really recognizing the contents of its burden; for the burden which it carried, together with the weights, which make this trial such a terrible one, were only a small fraction of the gigantic burden under which the bearer himself was not visible any more.

This comparison can be drawn without difficulty from the evidence presented by the defense.

I take the liberty—because it seems characteristic in this respect—to refer to some pieces of evidence which have already been submitted to the Tribunal, namely:

(1) the affidavit of Medizinalrat Felix Kersten of Stockholm (Document Book Rudolf Brandt, page 8).

(2) two affidavits from Schellenberg and Dr. Stuckart (Document Book Rudolf Brandt, pp. 16-17 and pp. 23-24).

(3) I once more refer to the final plea of Rudolf Brandt (English transcript, pages 11330-35).

(4) I attached two letters of the World Jewish Congress in Paris and Stockholm, addressed to the above-mentioned Felix Kersten, which had been rejected by the Tribunal as unessential pieces of evidence, which, however, throw a distinct light on the personality of Felix Kersten, who, on his part, defends so warmly Rudolf Brandt.

The fact that Rudolf Brandt did not make his own decisions but was under the command of Himmler can be found a mitigating consideration according to Law No. 10 of the Control Council, Article II 4 b.

I appeal to the generosity of the great to make use of this possibility to mitigate the sentence.

A sentence of imprisonment is also a heavy expiation.

The counsel for the defense again and again feels tempted to regret that these trials are too drawn out and through their long duration have a negative effect on the broad masses of the German people. If it is to be the goal of these trials to punish the main war criminals, these procedures should be shortened. The people are not interested any more in the course of these trials, apart from the trial against Goering and others during its first stages; one reason for this is, of course, the general plight; because the hunger of the people, the great mortality, the problem of the prisoners of war who are not returned to their families, the conditions in the East push everything else aside. Furthermore, the long duration of the trials causes even the most lively interest to slacken. But it also seems wrong to pronounce death sentences after such a long duration of proceedings. In the case of the trial of the International Military Tribunal, the people were still able to connect the long duration of the proceedings with the sentences pronounced, because each proceeding was an individual event. The following trials, however, among them, therefore, the doctors’ trial, are much too much drawn out with regard to German legal opinion. If such a drawn-out procedure closes with a death sentence, that death punishment seems hardly justified anymore. German trial procedure does not know such long drawn-out proceedings, the final result of which is a death sentence. The special peculiarities of the Anglo-American trial procedures are the cause for such trials that last for months and months. It has also to be remembered that the defendants in each case have been in custody for almost or more than two years when the trial finally began. Procedures ending with death sentences will have to be carried through much faster. It is in contradiction to one’s reactions that death sentences are pronounced against defendants with whom not only counsel for the defense has worked together for many months, but who also for many months appeared daily in court and were respected by the court, since they are rightly considered innocent until their guilt is finally established.

Neither should one forget that the defendants themselves, after having been held in custody for inquiry for such a long time and having gone through such long drawn-out procedures, have already atoned more for their crimes than if there had been a quick procedure started immediately after the collapse of Germany.

If I may impose on the instance for clemency I beg to read some parts of my final plea; then, I don’t have to repeat myself here. (Cf. statements on page 14 V, 1; furthermore pages 18-20, 27, 43 C).

[Signature]  Dr. Kauffmann.


FOR THE DEFENDANT POPPENDICK

Nuernberg, 1 September 1947

Georg Boehm, Attorney

Defense Counsel

Military Tribunal I

Nuernberg, 115 Zerzabelshofstrasse

 

The

Military Commander

of the U.S. Occupation Zone

Germany

Petition

of Attorney Georg Boehm, Defense Counsel at

Military Tribunal I, Nuernberg

 

for the defendant

Helmut Poppendick, at present in the courthouse prison at

Nuernberg, concerning alteration of the sentence passed

by Military Tribunal I, Nuernberg

The defendant Helmut Poppendick was acquitted of the charges of having committed war crimes and crimes against humanity (counts two and three) in the sentence of the Military Tribunal I at Nuernberg in Case I, United States of America against Karl Brandt et al., on 19 August 1947, and found guilty only, as an SS member, of membership in an organization declared criminal by the International Military Tribunal (count four). On 20 August 1947, the defendant Helmut Poppendick was sentenced to 10 years’ imprisonment merely on account of membership in the SS.

I. The sentence exceeds the maximum penalty

According to the recommendations of the International Military Tribunal (The Trial of the Major War Criminals before the International Military Tribunal, Vol. I, p. 288), inserted into the sentence of the Medical Case, a maximum penalty is provided for the punishment of members of organizations declared criminal. The IMT recommendation provides in detail that “in no case is the penalty, imposed on the basis of Law No. 10 upon a member of an organization or group declared criminal by the Tribunal, to be more severe than the one provided in the Denazification Law”. The Denazification Law, dated 5 March 1946, valid for the U.S. Occupation Zone of Germany, referred to as a standard for comparison, provides the maximum penalty of 10 years in a labor camp. According to present penal regulations, 10 years’ imprisonment is, however, a more severe penalty than being sent to a labor camp for the same period. 10 years’ imprisonment exceeds, therefore, the penalty provided in the recommendation of the IMT. The sentence against Poppendick does not give any special reason for exceeding the maximum penalty.

II. More lenient evaluation of the group of persons within the
SS who only knew about crimes without, however,
being involved in them

The sentence of the International Military Tribunal declares punishable in the sense of the statute “the group composed of those persons who were officially admitted as members * * * in the SS, became or remained members of the organization knowing that use was made of them for committing acts declared punishable by Article 6 of the Statute, or who were involved in committing such crimes as members of the organization.” According to a reasonable interpretation of this provision, if mere membership is punished, one has to differentiate between those persons involved in committing such crimes and those persons only knowing about the commission of such crimes within the SS. According to a sound sense of justice, the provided maximum penalty for membership in the SS cannot possibly be valid for both groups of persons. On the contrary, the group having only knowledge has to be punished more lightly than the group involved in crimes. A penalty inferior to the provided maximum penalty has, therefore, to be imposed on the first mentioned persons among the SS members called to account. The Tribunal clearly stated that the defendant Helmut Poppendick was not involved in the crimes of the SS and, in this way, made it clear that not even on account of his rank or official position was he able to prevent crimes. The Tribunal only tried to impute knowledge on the part of the defendant Poppendick of definite experiments specified in the indictment. For this reason the maximum penalty should not be imposed in the case of the defendant Poppendick.

III. Knowledge of the defendant Poppendick

The Tribunal imputed to the defendant Poppendick, who was Oberfuehrer of the Waffen SS and Obersturmbannfuehrer of the General SS: (1) knowledge of freezing experiments; (2) sulfanilamide experiments; (3) sterilization experiments; (4) incendiary bomb experiments; (5) phlegmon experiments, without, however, being criminally involved in them.

(1) Knowledge of freezing experiments is imputed to the defendant Poppendick because he was subsequently invited to participate in a conference between Grawitz and Dr. Rascher in January 1943. As Rascher was at that time an officer in the Luftwaffe and all his collaborators were not members of the SS, this series of experiments (at least in January 1943) cannot be interpreted as a series of experiments within the SS and consequently as crimes of the SS. There is no proof of knowledge of such experiments after January 1943.

(2) The defendant Poppendick knew as much about Professor Gebhardt’s sulfanilamide experiments as Professor Rostock who was acquitted by the same Tribunal, i.e., that prisoners sentenced to death were used for these experiments.

(3) Knowledge of sterilization experiments is imputed to the defendant Poppendick by means of a simple assumption, although the Tribunal pointed out in several passages of the judgment that a mere assumption of guilt, in our case of knowledge, is insufficient. Poppendick only worked in the Race and Settlement Office as a doctor dealing with hereditary questions for members of the SS and their families; as medical superintendent he had to supervise this activity and the social welfare doctors. These matters were purely internal SS affairs. If the Race and Settlement Office occasionally dealt, amongst other measures, with one of racial policy through its field offices, the doctors were not involved in any case, and there is not the least indication that Poppendick knew or ought to have known about such measures. Even the judgment itself reveals to what extent the real sterilization experiments were kept secret.

(4) On page 112 (German), the Tribunal points out, that in conferences concerning sterilization experiments (Poppendick never took part in such conferences) each participant had to undertake to maintain absolute secrecy. Neither the defendant Poppendick’s statement nor the evidence submitted reveal that Poppendick had any knowledge of sterilization experiments, let alone of extermination measures.

(5) In the case of the phlegmon experiments it has not been proved that Poppendick had any knowledge of them. Here, too, the assertion that he had such knowledge is based on a mere assumption.

It has, however, nowhere been proved that defendant Helmut Poppendick knew about the experiments in such a way as to necessitate his realizing that non-Germans were being used for such experiments. In its verdict the Tribunal has consistently followed the principle that it must be proved that crimes were committed on non-German nationals (see pp. 50, 51, 70, 91, 103, 131, 160, German text). In contrast to this the Tribunal left open the question as to how far the state is entitled to carry out experiments on its own citizens; it stated when dealing with the question of guilt: “* * * whatever right a state may have concerning its own citizens” (see pp. 114, 195, German). The Tribunal, therefore, in all essentials confined itself to the question of to what extent crimes were committed on non-Germans. No conclusive evidence has been brought against defendant Helmut Poppendick in each single case to prove his knowledge of experiments carried out on non-Germans. In reality, nothing is more suitable to explain under whatever point of view we have to look at defendant Poppendick’s knowledge of experiments, than his words at the end of the trial: “As to medical experiments on prisoners, human experiments were nothing striking and nothing new to me. I knew that experiments were being conducted in hospitals. I knew that the triumphs of modern medicine had not been achieved without sacrifices. I admit I cannot re