The evidence outlined above makes it clear that the Euthanasia Program
can only be described as mass murder. This Tribunal is not called upon
to define with juridical nicety what a state may lawfully legislate with
respect to euthanasia. The prosecution asks only that this Tribunal
find, as other tribunals have already held, that there was no valid law
in the Third Reich permitting euthanasia, and that the execution of
persons under the guise of euthanasia, with the connivance and
assistance of certain defendants in this dock, constituted the crime of
murder—a war crime and a crime against humanity.
The first and foremost authority on the legality of euthanasia as
practiced under the Nazis is in the judgment of the International
Military Tribunal.[93]
These findings draw no distinction between German nationals executed
under the program and non-German nationals. These executions are
described with the word “murders” and constitute war crimes and crimes
against humanity under the Charter and Control Council Law No. 10. This
was one of the principal crimes which led to the judgment of guilty and
the sentence of death against Frick.[94]
The Review of the Deputy Theater Judge Advocate in the case of the U. S.
_vs._ Klein, Wahlman, et al., held at Weisbaden, Germany, from 8 October
through 15 October 1945 is a clear precedent that the execution of
non-German nationals pursuant to the Euthanasia Program was a crime.
(_NO-1116, Pros. Ex. 415._)
The defendants were there charged with the execution of some 400 persons
of Polish and Russian nationality, alleged to be suffering from
incurable tuberculosis, at the Hadamar euthanasia station between July
1944 and April 1945. They were not charged with murdering German
nationals and that issue was not considered. After taking judicial
notice of the fact that foreign laborers were pressed for service in
Germany, the reviewing authority held that the killings in issue were a
violation of the international laws of war and of Article 46 of The
Hague Convention. Three of the seven defendants were sentenced to death.
According to German law, euthanasia was nothing other than murder.
Paragraph 211 of the German Criminal Code, in its old form reads:
“Whoever kills a person willfully will be punished by death for
murder if the killing was premeditated.”
In the new form, which was in effect from 4 September 1941 on, the
section stated:
“The murderer will be punished by death.
“A murderer is one who kills a person out of sheer desire to
murder, for the satisfaction of the sexual instincts, for
covetousness or other vile motives; one who kills another
maliciously or cruelly, or by publicly dangerous means, or to
create the preconditions for another punishable action, or to
conceal such an action.
“Certain exceptional cases where capital punishment is not
appropriate will be punished by life sentence.” (_NO-705._[95])
For expert commentaries on the legality of euthanasia, see NO-708 and
NO-706.[96]
The defense witness Hans Lammers, a German legal expert, testified that
the Hitler letter to Bouhler and Brandt was not a law, and that official
legislation was necessary to legalize euthanasia. (_Tr. pp. 2672-2679._)
The Reich Minister of Justice, Guertner, on 24 July 1940, wrote a letter
to Lammers informing him that, as the Fuehrer had refused to issue a law
it was necessary to discontinue immediately the secret extermination of
insane persons. (_NO-832, Pros. Ex. 393._) A copy of this letter was
sent to Bouhler on 27 July 1940. (_NO-833, Pros. Ex. 394._)
During Brack’s lecture in the Ministry of Justice, referred to in B
above, the legal authorities present were completely misinformed about
the extent of the program. From the remarks of the speaker, the
impression was obtained that only a very limited circle of persons, at
the utmost several hundred, throughout Germany, Austria, and the
Protectorate Bohemia and Moravia, would be affected. The opinion created
was that only very dangerous patients and delirious maniacs who might
injure themselves would be subjected to the program. (_NO-2253, Pros.
Ex. 557._) This obviously was done to quiet the misgivings of the
persons present. Brack, when questioned as to whether, during the
lecture, he gave an approximate number of persons who would be subjected
to euthanasia, could or would not give any answer. Contrary to the
impression created during the conference in the Ministry of Justice, the
defendants Brandt and Brack now admit that about 50,000 to 60,000 people
were killed in the Euthanasia Program in Germany and Austria alone.
(_Tr. p. 2465_; _Tr. p. 7610_.)
Since the end of the war, German and Austrian courts have repeatedly
held that the killing of persons of any nationality under the guise of
euthanasia was in violation of the German Criminal Code and punishable
as murder. The witnesses Schmidt and Mennecke who testified before this
Tribunal had themselves been convicted by a German court for
participation in the Euthanasia Program and sentenced to life
imprisonment and death, respectively.
* * * * *
The Court of Assizes in Berlin, at the session on 25 March 1946, found
the defendants Hilde Wernicke and Helene Wieczorek guilty of murder and
sentenced them to death.
* * * * *
The Court of Appeals in the same case rejected the appeals of both,
defendants. The following quotation from the findings may be of
interest:
* * * * *
“_It cannot be mistaken that the defendants Wernicke and
Wieczorek are only the last links of a long chain, and that they
are preceded by persons whose guilt is still greater._”
[Emphasis added.] (_NO. 447_[97]).
Thus it is established that euthanasia was murder according to German
law.
In connection with this question, it is again pointed out that the whole
program was kept completely secret. Hitler’s letter of 1 September 1939
(_Tr. p. 1516_) marked “Top Secret” was never published, and the
Minister of Justice received a copy of it only one year after its
issuance. (_630-PS, Pros. Ex. 330._) Transfers of inmates of insane
asylums to euthanasia stations were allegedly carried out by the order
of the Reich Defense Commissioner. (_NO-1133, Pros. Ex. 335._) The
officials active in the program had to sign a written oath of secrecy.
(_NO-1312, Pros. Ex. 338_; _NO-1311, Pros. Ex. 339_.) The doctors who
performed euthanasia were warned that they would be severely punished if
they sabotaged the work. (_Tr. p. 1894._) The whole program of
euthanasia was to be kept secret, as they were told from the beginning
that it was a top secret matter. The reason given was to avoid unrest
among the population. Breach of secrecy was considered sabotage. (_Tr.
p. 1923._) Others had to sign a written oath binding them to secrecy. It
was known that the result of breach of this oath was confinement in a
concentration camp. (_Tr. p. 1826._)