a. Introduction
The defendants Karl Brandt, Handloser, Rostock, Gebhardt, Blome, Rudolf
Brandt, Mrugowsky, Poppendick, and Sievers were charged with special
responsibility for and participation in criminal conduct involving
malaria experiments (par. 6 (C) of the indictment). Only the defendant
Sievers was convicted on this charge. In the case of the defendant
Mrugowsky the judgment of the Tribunal makes no special reference to
this charge.
Although the defendant Rose was not charged with _special_
responsibility for participation in malaria experiments, the prosecution
offered proof to show some participation by Rose in these experiments.
However, the Tribunal in its judgment refrained from making a finding of
guilt or innocence as to Rose, since malaria experiments were
particularized in paragraph 6 (C) of the indictment and since Rose was
not among those defendants who were charged with special responsibility
by name (judgment, vol. II). The Tribunal said that the manner of the
prosecution’s pleading “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, [and] 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.”
The Tribunal did make findings of guilt or innocence with regard to
several experiments which were not particularized in detail in the
indictment and concerning which the indictment did not name any
particular defendants as having special responsibility. For example, the
prosecution introduced evidence concerning phlegmon, polygal and gas
oedema experiments (_subsections 12-14, see pp. 653 to 694_) under the
general charge of paragraph 6 of the indictment, which alleges that the
criminal experiments “included, but were not limited to” the
particularized experiments. (_See also introductions to sub-section
12-14, see pp. 653-4, 669-70 and 684._)
The prosecution’s summation of the evidence on the malaria experiments
is contained in its final briefs against the defendants Rose and
Sievers. Extracts from these briefs are set forth below on pages 280 to
283. A corresponding summation of the evidence by the defense on these
experiments has been selected from the closing briefs for the defendants
Sievers and Rose. It appears below on pages 283 to 288. This
argumentation is followed by selections from the evidence on pages 289
to 314.
b. Selections from the Argumentation of the Prosecution
_EXTRACT FROM THE CLOSING BRIEF AGAINST
DEFENDANT ROSE_
* * * * *
With respect to the malaria experiments, two questions are presented for
consideration: first, whether the malaria experiments were performed in
a criminal manner, and second, whether the defendant Rose was connected
with such experiments.
That the performance of the malaria experiments in the Dachau
concentration camp from February 1942 until the end of the war was
criminal has not been seriously disputed by any of the defendants. In
December 1941, while working in Italy, Dr. Claus Schilling met Conti who
became interested in supporting further work by Schilling on malaria
problems. A meeting was arranged with Himmler who gave his permission
for experiments to be carried out in the Dachau concentration camp.
Schilling began his work in Dachau in February 1942 and continued his
experiments until the end of the war. He was primarily concerned with
discovering a way of immunizing persons against malaria. During the
course of the experiments, approximately 1,200 concentration camp
inmates were infected with malaria either by being bitten by infected
mosquitoes or by injections of malaria-infected blood. After having been
infected, the prisoners were treated with various drugs, including
quinine, neosalvarsan, and pyramidon. Most of the experimental subjects
were non-German nationals. Of the experimental subjects infected,
approximately 30 died as a direct result of the experiments and an
additional 300 to 400 died as a result of complications.
The above facts are established by the Review of the General Military
Commission in the case of the U. S. against Weiss and others, held at
Dachau, Germany. (_NO-856, Pros. Ex. 125._) Claus Schilling was a
defendant in that case and was convicted and sentenced to death. In an
affidavit submitted in evidence before that Tribunal, dated 30 October
1945, Schilling admitted that the experimental subjects were not
volunteers.
One of the assistants to Schilling in his experiments at Dachau was Dr.
Ploetner, who was a member of the Institute for Military Scientific
Research of the Ahnenerbe under the defendant Sievers. Sievers conferred
with Ploetner regarding the malaria experiments and received reports
from him. (_3546-PS, Pros. Ex. 123; entries for 30 January, 22 February,
23 May, 31 May, 1 June, 24 August._) Rose stated that he learned that
Ploetner was a collaborator of Schilling through an inquiry to the
Journal of Tropical Medicine in the year 1944. Ploetner had published an
article in that magazine and it had come to Rose’s attention. (_Tr.
6339._)
The witness August Vieweg testified for the prosecution and
substantiated the findings of the Military Commission at Dachau. Vieweg
was first subjected to the malaria experiments himself and thereafter
served as an inmate-assistant in the malaria ward. Vieweg testified that
Schilling experimented on approximately 1,100 inmates, including
Germans, Poles, Russians, and Jugoslavs. Among the Russian inmates used
were prisoners of war. Seven or eight of the subjects died in the
malaria station, primarily as a result of pyramidon poisoning. (_Tr. p.
428._) He also testified that to his knowledge, an additional 60 inmates
died after having been transferred from the experimental station. He
further stated that none of the inmates volunteered, that he personally
did not, and that the experimental subjects were not freed as a result
of undergoing the experiment. The original infection card from the files
of Schilling in Dachau, showing the date of infection of the witness
Vieweg with “Culture Rose,” was introduced. (_NO-983, Pros. Ex. 128_;
_see also Tr. pp. 584-5_.)
The defendant Rose participated in the criminal experiments of Schilling
by furnishing him material with which to carry out the experiments. This
material was furnished by Rose with knowledge of facts which would have
led any reasonable man to the conclusion that Schilling was carrying out
criminal experiments. Rose had known Schilling for many years and
succeeded him as Chief of the Department for Tropical Medicine in the
Robert Koch Institute. Moreover, Rose, by his own admission, was an
adviser to Dr. Conti, who arranged for Schilling to carry out his
experiments in Dachau. It is highly unlikely that such an arrangement
would have been made without consulting Rose.
Rose furnished Schilling with malaria spleens for his experiments in
Italy during the year 1941, a fact which Rose denied on the stand until
contradicted by his letter to Schilling, dated 3 February 1941.
(_NO-1756, Prog. Ex. 486._) Rose continued to furnish infection material
to Schilling after he set up his experimental station in Dachau. Rose
and his witnesses admitted that anopheles eggs were sent to Schilling in
1942, but Rose, after that occasion, issued instructions that no more
material was to be sent to Schilling because he did not agree with his
research aims. (_Tr. p. 6415._) On 4 April 1942, Schilling wrote to Rose
asking for “Culture Rose” to continue his experiments. This letter bears
the dateline “Dachau, 3K, Hospital for Inmates,” and it was initialed by
Rose on 17 April 1942. Schilling stated that he would be “very thankful
* * * for this _new_ support of my work.” [Emphasis supplied.] That Rose
complied with this request of Schilling’s is established because the
witness Vieweg was himself infected with “Culture Rose.”
On 5 July 1943, in a letter, also with the notation “Dachau, K3, Malaria
Station,” Schilling thanked Rose for a consignment of atroparvus eggs
and accepted Rose’s offer to send him his excess eggs. This letter
mentions the “Prisoner August,” who obviously was the witness, August
Vieweg. This letter was initialed by Rose on 27 July. (_NO-1753, Pros.
Ex. 488._) On the same date Rose replied to Schilling’s letter, advising
him that at the next favorable opportunity, a shipment of anopheles eggs
would be made to him.
* * * * *
_EXTRACT FROM THE CLOSING BRIEF AGAINST
DEFENDANT SIEVERS_
* * * * *
Sievers had knowledge of and supported the criminal malaria experiments
in Dachau. He testified that early in 1942 he learned from Himmler that
Schilling was conducting malaria experiments in Dachau. (_Tr. p. 5692._)
In a memorandum dated 3 April 1942 concerning a consultation between
Sievers and Dr. May on the location of an experimental station for the
Ahnenerbe, Sievers mentioned as a persuasive reason for locating in
Dachau the fact that Schilling was carrying out his malaria experiments
there. (_NO-721, Pros. Ex. 126._) Although this memorandum gives the
name as “Schling”, Sievers testified that the name Schilling was
intended. (_Tr. p. 5693._)
The witness Vieweg testified that in late 1943 or early 1944 Sievers
made several visits to Schilling’s malaria station where he consulted
with Ploetner, who was a collaborator of Schilling’s. (_Tr. pp. 445-7,
464._) He stated that Sievers consulted with Schilling and also
inspected the laboratory. (_Tr. p. 423._) Sievers testified that the
purpose of these visits and consultations was to arrange for the
transfer of Ploetner to the Institute for Military Scientific Research
of the Ahnenerbe.
A number of entries in the Sievers diary for 1944 prove that Sievers was
connected with and supported the malaria experiments. On 30 January he
received a memorandum by Ploetner on malaria. A notation of 22 February
states that “further work in the matter of SS Hauptsturmfuehrer Dr.
Ploetner to be done through RGF [Reichsgesundheitsfuehrer Conti].”
Ploetner, in addition to his work with Schilling, was also collaborating
with Rascher in the blood coagulation experiments. (See entries of 29
January and 14 April.) On 10 May 1944, the entry indicates that
Rascher’s research work was transferred to Ploetner. This was apparently
a result of Rascher’s difficulties in connection with the kidnapping of
children by him and his wife. On 23 May 1944, Ploetner was charged with
the management of the Ahnenerbe division in Dachau. The entry for 31 May
indicates that Sievers and Grawitz reached an understanding concerning
Ploetner’s continued collaboration with Schilling. On 21 June, Sievers
conferred with Schilling about limiting Ploetner’s activities with him
after his transfer to the Ahnenerbe. Ploetner was actually appointed
department head in the Institute for Military Scientific Research of the
Ahnenerbe on 27 June. The entry for 24 August 1944 notes that
collaboration between Schilling and Ploetner had been agreed upon.
(_3546-PS, Pros. Ex. 123._)
* * * * *
c. Selections from the Argumentation of the Defense
_EXTRACT FROM THE CLOSING BRIEF FOR
DEFENDANT SIEVERS_
* * * * *
_Malaria Experiments_
1. Under the direction of Professor Dr. Schilling, malaria experiments
were carried out in Dachau concentration camp in the years 1941-1944.
2. According to the statements in the verdict of the United States
Military Court at Dachau of 26 January 1946 (_NO-856, Pros. Ex. 125_) a
great number of people were killed in these experiments.
3. Sievers had not the slightest connection with either Professor
Schilling’s malaria experiments or with any other malaria experiments.
The prosecution charges Sievers with participation in malaria
experiments.
“As can be seen in all spheres of this devilish experiment
program in Nazi Germany, the defendants charged with the malaria
experiments had on their side an extensive knowledge of
Schilling’s activity. In some cases they worked actively with
the late Dr. Schilling”. (_Tr. pp. 403-4._)
_For proof, the prosecution refers to NO-721, Prosecution Exhibit 126._
Regarding 3546-PS, Prosecution Exhibit 123, Sievers’ diary 1944, entries
of 22 February 1944 and 31 May 1944, the prosecution states:
“From this document it can be seen that on or about 1 April 1942
Wolfram Sievers had knowledge of Dr. Schilling’s activity in
Dachau. This letter represents a proposal for planned further
experiments and clearly shows that the distinguished Wolfram
Sievers in his capacity as Reich Business Manager of Ahnenerbe
had a finger in all these matters.”
The defense has proved:
Sievers stated in his cross-examination that the affairs which he
discussed with Dr. May on 1 April 1942 in Munich had nothing whatsoever
to do with malaria experiments. Sievers paid a social visit to Dr.
Schilling in Dachau in the middle of the year 1944 in order to get Dr.
Ploetner released for the manufacture of pectin. (_Cross-examination of
Sievers, German Tr. pp. 5692-93._) Neither Sievers nor the Ahnenerbe nor
the Institute for Military Scientific Research [Institut fuer
Wehrwissenschaftliche Zweckforschung] had anything to do with malaria
experiments. (_Cross-examination of Sievers, German Tr. p. 5693_;
_Statement of the witness Dr. May, German Tr. p. 5877_.) Neither can
there be proved from Point four of the memorandum of 1 April 1942
(_NO-721, Pros. Ex. 126_) any connection of Sievers with the malaria
experiments.
An affidavit of the secretary Hildegard Wolff relates how the memorandum
of 1 April 1942 and the drawing up of Point four came about. She took
down and typed the memorandum from Sievers’ dictation. (_Sievers 11,
Sievers Ex. 8._) According to this, Sievers, in the very hurried
dictation, said Frau Wolff should write down as Point four what Himmler
had said in his telephone conversation about the erection of the
institute in Dachau. Therefore, not Sievers’ but Himmler’s opinion is
stated here.
Through the discussion of 1 April 1942 between Sievers and Dr. May it
had been made completely clear that human experiments within the
framework of the research order to Dr. May were absolutely out of the
question, not only for the reason that such experiments would have been
rejected on principle, but also because human experiments had nothing
whatsoever to do with the task of developing an insecticide for insects
harmful to human beings. Moreover, no other kind of human experiment was
carried out in connection with Dr. May’s work. The witness, Dr. May,
testified concerning Sievers’ diary entry of 22 February 1944 that there
never existed any cooperation between Dr. May, Dr. Ploetner, and Dr.
Schilling. (_Witness Dr. May, German Tr. p. 5878._)
That, however, would have been a necessary condition in order to
classify Sievers’ administrative activity in this connection as
participation.
As to points four, five, six, seven, there is no occasion for statements
concerning these points.
_Summary_
Since Sievers took no part in the malaria experiments of Professor
Schilling at Dachau or any other malaria experiments, he is not guilty
of a crime. Thus any special responsibility and participation in malaria
experiments is excluded.
* * * * *
_EXTRACT FROM THE CLOSING BRIEF FOR
DEFENDANT ROSE_
* * * * *
_Statements Concerning the Question of Responsibility of the
Defendant Rose for the Malaria Experiments Carried Out by
Professor Claus Schilling at the Concentration Camp Dachau and
Concerning the Question of Rose’s Participation in These
Experiments._
In the indictment, Professor Rose is not charged with special
responsibility for the malaria experiments carried out by Professor
Schilling at the Dachau concentration camp or with participation. The
defendant Rose is also not mentioned in Document Book No. 4 of the
prosecution which deals with these malaria experiments. In the course of
the verbal proceedings in the court, the prosecution has, however,
preferred charges against Professor Rose to this effect and introduced
several new documents in the trial during the cross-examination of
defendant Rose (_NO-1752, Pros. Ex. 487_; _NO-1753, Pros. Ex. 488_;
_NO-1755, Pros. Ex. 489_; _NO-1756, Pros. Ex. 486_) and also heard the
witness Vieweg concerning this question. (_German Tr., 13 Dec. 46, pp.
464-516._)
This evidence shows that among others also the Department for Tropical
Diseases of the Robert Koch Institute in Berlin, under the direction of
the defendant Rose, sent anopheles eggs and malaria cultures on a few
occasions to Professor Schilling at Dachau during the years 1942 to
1943. At this juncture it should be mentioned that it is completely
immaterial for the judgment of the case what the name of the culture of
malaria tertiana was and whether or not its name was first changed by
Schilling to “Culture Rose”. The above-mentioned evidence also shows
that Professor Schilling told Professor Rose in two of his letters about
his breeding of mosquitoes; finally it also shows that Professor
Schilling asked the defendant Rose from Italy to procure for him spleens
of persons whose death had been caused by malaria. This was in 1941, at
a time when Schilling was not yet working in Dachau. According to the
testimony given by the defendant Rose during cross-examination (_Tr. pp.
6412-3_), he evidently complied with Schilling’s request.
The Tribunal will have to decide whether these above-mentioned
activities of the Department for Tropical Diseases of the Robert Koch
Institute under the management of the defendant Rose or his own
activities, constitute, within the meaning of the Penal Code,
participation on the part of the defendant Rose in the deeds of
Professor Schilling. In my opinion this decision can only be a negative
one, for the followings reasons:
The delivery of material necessary for malaria research such as
anopheles eggs and malaria cultures was one of the official duties of
the Department for Tropical Diseases of the Robert Koch Institute.
(_Rose 11, Rose Ex. 27._) This department had a section which dealt
exclusively with these matters. This can be seen from both the yearly
reports of the Robert Koch Institute and from the report covering the
Third Conference East of Consulting Specialists discussing
work-projects. (_Rose 38, Rose Ex. 10_; _Rose 10, Rose Ex. 26_; _Rose
12, Rose Ex. 28_.) Deliveries of this kind are internationally common
practice and were never denied by the defendant Rose. It is also common
practice to use the organs of human corpses for the carrying out of
scientific research. (_Tr. p. 6474_; _Rose 51, Rose Ex. 50_.)
The prerequisites for such deliveries are that they are requested either
by well-known institutes or by renowned research scientists. It cannot
be denied that Schilling, a coworker of Robert Koch and a member of the
malaria commission of the League of Nations, was famous as a malaria
research scientist. In a case of this kind, the non-delivery of such
material would have been an express violation of traditional practice
and of official duty. It is also not international usage for the orderer
to be questioned about the intended use of the material before its
delivery. (_Compare Mrugowsky 4a, Mrugowsky Ex. 96_; _Rose 49, Rose Ex.
48_; _German Tr., 19 June 47, p. 9680_.) Even if Professor Rose
declared, in the witness box during examination on his own behalf, that
he assumes full responsibility for it, it should be mentioned here that
such deliveries are carried out in such a routine way that the chief of
the institute often knows nothing about it since these matters are
dispatched independently by the personnel employed by him in the
laboratory. This also was the procedure in the case in question as the
evidence shows unequivocally. (_Rose 35, Rose Ex. 32_; _German Tr., 16
Dec. 46, p. 507_; _Tr. pp. 6020, 6352_.) Thus, it is by no means
surprising that the defendant Rose could no longer remember the
correspondence with Professor Schilling put before him by the
prosecution during cross-examination especially since undoubtedly it
often happens that, as in the case in question, although the letters are
sent by the orderer to the head of such an institute personally, the
dispatching of the order is nevertheless carried out independently by
the personnel of the institute.
Besides, the delivery of these materials by the Department for Tropical
Diseases of the Robert Koch Institute to Professor Schilling was by no
means a prerequisite for the carrying out of his experiments in Dachau,
since it has already been established that Schilling obtained no less
than 12 other malaria cultures from other institutes. (_NO-1752, Pros.
Ex. 487_; _German Tr., 16 Dec. 46, p. 509_.) Professor Schilling also
obtained mosquitoes from other institutes. (_German Tr., 16 Dec. 46, p.
507._) Naturally these institutes could also not have had any scruples
about sending material to Professor Schilling. In addition to this,
Professor Schilling personally maintained a group of people to catch
mosquitoes. (_German Tr., 16 Dec. 46, p. 508._) If Professor Schilling
turned at all to the Robert Koch Institute in this matter, the main
reason for doing so was that for decades he himself had been the head of
the Department for Tropical Diseases of the Institute and that personnel
were still working there who had formerly already been employed under
his management.
The defendant Rose did, as a matter of fact, oppose Schilling’s
scientific approach to the problem as may clearly be seen from his
opinion on Schilling for the Reich Ministry of the Interior (_Tr. p.
6021_) and from his lecture in Basel. (_Rose 25, Rose Ex. 31._) However,
to judge by Professor Schilling’s personality and past he could,
nevertheless, not conceive the idea that Professor Schilling’s work at
Dachau could be anything but completely above reproach. Experiments on
human beings in malaria research are first of all, a matter of course
and common practice. Even if the defendant Rose always limited his own
work to the traditional evaluation of therapeutic malaria infections,
experiments on prisoners in this field must unquestionably be
permissible from an ethical point of view, as can be proved by the
malaria experiments on many hundreds of prisoners in American prisons.
(_Karl Brandt 1, Karl Brandt Ex. 1_; _Karl Brandt 117, Karl Brandt Ex.
103_; _Mrugowsky 80, Mrugowsky Ex. 76_; _Rose 50, Rose Ex. 49_.) Apart
from the fact that the delivery of material to Schilling by no means
obliged him to inform himself about the latter’s research work and its
ways and means, Rose really had no knowledge whatsoever of the object of
the research carried out by Schilling, and did not know the
collaborators of the latter. (_Rose 29, Rose Ex. 34_; _Rose 30, Rose Ex.
33_.) Much less was he informed about the conditions under which
Schilling was working in Dachau.
The defendant Rose himself is a well-known malaria research scientist.
Malaria research was the main study of his department at the Robert Koch
Institute in Berlin and also later in Pfaffenrode. Professor Schilling
only worked with malaria tertiana (benign tertian) in Dachau. (_NO-1752,
Pros. Ex. 487._) Professor Rose, as an experienced malaria research
scientist, knew of course that this form of malaria is not a dangerous
one and that no complications are to be expected from it. (_Rose 50,
Rose Ex. 49._) The witness Vieweg (_Tr. pp. 457-458_) also expressly
stated that none of the prisoners died of malaria, but that the cause of
death could be traced back to technical errors [Kunstfehler] or to
complications, as, for example, faulty puncture of the liver resulting
in hemorrhage due to omission of an operation and an overdose of
pyramidon in therapy, outbreak of typhus among the experimental subjects
and finally, wrong doses in the treatment with salvarsan. Just in
passing it should also be mentioned here that the defendant Rose also
opposed this last-mentioned method of treatment. This method was
prohibited in the German Luftwaffe at his suggestion. (_NO-922, Pros.
Ex. 435._)
No further explanation is necessary to show that solely the person
carrying out the experiments is responsible for technical errors and
negligence in the process. It seems to me that not even his superiors
who ordered the work, namely Himmler and Grawitz, were responsible for
them. However, a person assigned to supervise these experiments would
have been obliged to take action whenever he was informed of such
technical errors or negligence. The defendant Rose, however, was neither
assigned to supervise nor was he informed of these matters. It is also
unfair to assume that he knew about these matters, because he happened
to take part in the conference on freezing experiments which took place
in Nuernberg in October 1942. Firstly, the freezing experiments carried
out by Professor Holzloehner, although also taking place on Dachau, were
in no way connected with the malaria experiments carried out by
Professor Schilling. Furthermore, the participants of the conference
were misinformed about the method employed in these experiments and
about the status of the experimental subjects. (_Handloser 37, Handloser
Ex. 18_; _German Tr., 12 Dec. 46, p. 315_.)
Now, to be sure, it is known that Holzloehner’s, Rascher’s, and Finke’s
freezing experiments were carried out in Dachau. That, however, was
certainly not made public at the above-mentioned Nuernberg conference.
Even if one of the participants suspected that experiments at a
concentration camp were concerned, he would not have had the slightest
reason to suppose that the concentration camp in question was Dachau.
Schilling’s reports about his work were always sent to Himmler or
Grawitz but never went any further. That also explains why no reports
about Schilling’s experiments were found in the confiscated files of the
defendant Rose. (_Tr. pp. 5566, 6021_; _German Tr., 13 Dec. 46, pp.
466-7_; _German Tr., 26 Mar. 47, p. 5106_; _German Tr., 2 Apr. 47, pp.
5420-1_.)
Rose personally was the prototype of a worker above reproach in the
field of malaria research and with regard to his care for the well-being
of his malaria patients (_Rose 47, Rose Ex. 35_), as shown by the
investigation undertaken by the competent American authorities. He
risked his own life (_Rose 8, Rose Ex. 29_) in order to assure the
orderly handing-over of his Malaria Research Institute in Pfaffenrode to
the Americans—in contrast to Dachau, without burning files and the
like, and also to insure continued regular care and medical treatment
for his patients. (_Rose 31, Rose Ex. 36_; _Rose 32, Rose Ex. 37_; _Rose
33, Rose Ex. 38_; _Rose 34, Rose Ex. 39_.) It would be completely
incomprehensible if such a man were to be made responsible for the
technical errors and negligence of another who was not even under his
influence.
d. Evidence
_Prosecution Documents_