_DIRECT EXAMINATION_
* * * * *
DR. SERVATIUS: Witness, you are charged with participation in the
Euthanasia Program. I shall show you the decree of 1 December [1
September] 1939. (_NO-630, Pros. Ex. 330._) Please describe how this
decree came about.
DEFENDANT KARL BRANDT: After the end of the Polish campaign in about
October [sic], the Fuehrer was at Obersalzberg. I was called to him for
some reason which I can no longer remember and he told me that because
of a document which he had received from Reichsleiter Bouhler, he wanted
to bring about a definite solution in the euthanasia question. He gave
me general directives on how he imagined it, and the fundamentals were
that insane persons who were in such a condition that they could no
longer take any conscious part in life were to be given relief through
death. General instructions followed about petitions which he himself
had received, and he told me to contact Bouhler himself about the
matter. I did so by telephone on the same day, and I then informed
Hitler about my conversation with Bouhler. Thereupon he drafted a
formulation of this decree, not in the form we have here, but in a
similar form, and certain changes were made. My request was that a
precaution be introduced because of the medical participation, and I
used an expression for this which was familiar to me from expert
opinions. It stated that euthanasia could be carried out on persons and
then comes the formulation “who are incurable with a probability
bordering on certainty.” Since this formulation was strange to him, “on
the most careful diagnosis of their condition of sickness” was added.
Therefore, when this decree was signed about the end of October, the
text read as follows: “Reichsleiter Bouhler and Dr. Brandt are charged
with the responsibility of extending the authority of certain doctors,
to be designated by name in such a manner that persons who, according to
human judgment, are incurably sick, can, on the most careful diagnosis
of their condition of sickness, be accorded a mercy death.”
Q. Did you talk to Bouhler?
A. At first I only talked to Bouhler on the telephone and even after the
decree was signed I did not talk to him immediately but sent the signed
decree to him in Berlin.
Q. And what was Hitler’s idea of euthanasia? What did he understand by
it?
A. The decisive thing for him was also expressed here in the decree,
namely, that incurably sick persons—actually it should have read insane
persons—other persons were absolute exceptions—could be accorded a
mercy death. That is, therefore, a measure dictated by purely humane
considerations, and nothing else could be thought under any
circumstances, and nothing else was ever said to me.
Q. You said that the Fuehrer gave you the assignment on the basis of a
telephone call from Bouhler? The call from Bouhler could not have been
the only reason. There must have been others.
A. It was not a telephone call. There was some kind of a documentary
incident which was decisive. It may be that the Fuehrer already had
these documents or that Bouhler spoke to him again about them. I don’t
know exactly. But this was not the cause of the Euthanasia Program being
started. In his book, “Mein Kampf,” Hitler had already referred to it in
certain chapters, and the law for the “prevention of the birth of
children suffering from hereditary diseases” is a proof that Hitler had
definitely concerned himself with such problems earlier. The law for the
“prevention of the birth of children suffering from hereditary diseases”
is actually a law which followed the events. It certainly arose because
children with congenital diseases existed. Proof that this is a problem
which affects the whole world lies in the fact that similar laws with
similar formulation and contents have been passed in other countries.
Dr. Gerhardt Wagner, who was Dr. Conti’s predecessor, discussed these
questions at the Party rally in Nuernberg. I did not talk to Gerhardt
Wagner at that time and had nothing to do with these things. However, I
hear now that in 1935 Gerhardt Wagner had a film made presenting the
problem of the insane. Apparently the film was made in asylums with
insane persons.
Q. Witness, did not the requests received by Bouhler and the Fuehrer
play a certain part?
A. Requests to this effect were certainly constantly received by
Bouhler, and the Chancellery of the Fuehrer always received such things.
I only know that these requests were afterwards passed on to the Reich
Ministry of the Interior. I myself know of one request which was sent to
the Fuehrer himself through his adjutant’s office in the spring of 1939.
The father of a deformed child approached the Fuehrer and asked that
this child or this creature should be killed. Hitler turned this matter
over to me and told me to go to Leipzig immediately—it was in
Leipzig—to confirm the fact on the spot. It was a child who was born
blind, an idiot—at least it seemed to be an idiot—and it lacked one
leg and part of one arm.
Q. Witness, you were speaking about the Leipzig affair, about this
deformed child. What did Hitler order you to do?
A. He ordered me to talk to the physicians who were looking after the
child to find out whether the statements of the father were true. If
they were correct, then I was to inform the physicians in his name that
they could carry out euthanasia.
The important thing was that the parents should not feel themselves
incriminated at some later date as a result of this euthanasia—that the
parents should not have the impression that they themselves were
responsible for the death of this child. I was further ordered to state
that if these physicians should become involved in some legal
proceedings because of this measure, these proceedings would be quashed
by order of Hitler. Martin Bormann was ordered at the time to inform
Guertner, the Minister of Justice, accordingly about this case.
Q. What did the doctors who were involved say?
A. The doctors were of the opinion that there was no justification for
keeping such a child alive. It was pointed out that in maternity wards
under certain circumstances it is quite natural for the doctors
themselves to perform euthanasia in such a case without anything further
being said about it. No precise instructions were given in that respect.
Q. Was this problem of deformities dealt with anywhere else?
A. The problem of deformities was probably discussed before this Leipzig
case. However, in the course of the summer it was worked on in a more
concrete form, first of all by the Ministry of the Interior. In this
case, Dr. Linden participated as a special consultant, probably as
representative of Dr. Conti—who became Reich Minister for Health after
the death of his predecessor Wagner, and then afterwards State Secretary
in the Ministry of the Interior.
Q. Who was Dr. Linden?
A. Dr. Linden was Ministerialrat in the Reich Ministry of the Interior.
He was a doctor and was the competent official who was later in charge
of this office for the mental institutions, perhaps he already was at
the time, I don’t know exactly. Later on, during the treatment of the
euthanasia question he was appointed exponent of all these matters.
Q. What was the procedure at the time? Was Hitler informed about all
these matters?
A. In August 1944 he ordered me to participate in a conference which
took place between Dr. Linden, Mr. Bouhler, and some other people. The
question of the registration of these deformities was discussed, and
also how to set about this registration. Dr. Linden, on behalf of the
Ministry of the Interior, submitted pertinent documents, questionnaires,
etc., which were then discussed once more in detail. It was the
preparatory work for the Reich Committee for the Registration of Serious
Hereditary and Constitutional Diseases, which was subsequently
established.
* * * * *
_CROSS-EXAMINATION_
* * * * *
MR. MCHANEY: Now, Witness, this is the first time that I have ever heard
mentioned in connection with the Euthanasia Program that anybody’s
consent had to be obtained, and I take it that it is a rather
fundamental matter. Are you ready to swear to this Tribunal that the
Reich committee never performed euthanasia on children without obtaining
the consent of the parents of the child?
DEFENDANT KARL BRANDT: I said yesterday that the approval of the parents
was necessary for the euthanasia of children, and I am of the opinion
that such approval was actually given.
Q. Was the approval written approval or verbal approval?
A. That I don’t know. I cannot say.
Q. Have you ever seen any written approval?
A. I believe that during the first period when this authorization was
submitted for signature to Bouhler and to me, all the other papers were
together with it, such as approvals, etc. It may be that during the
later period we were only concerned with the authorization papers and
that the other papers were left with the Reich committee. However, I did
see such letters of approval but I don’t believe that they were in
writing in every case. I think they were partly given orally through the
local physician or some other agency which dealt with the case.
Q. Well, Witness, let’s look at this letter again. I find some
difficulty in reconciling your testimony about the necessity of consent
by the relatives of the child with what’s written here in this letter.
For example, the third line reads: “It seems that the relatives of Anna
Gasse tried to obtain her release by every possible means.” If, Witness,
it was necessary to obtain consent, why was there any question about
releasing Anna Gasse?
A. I cannot say that either. According to my opinion, the child could
not be kept in an institution if the parents wanted it at home.
Q. And the last sentence which reads, “If from a medical point of view
such release is warranted, one could perhaps take into consideration
whether one should not perhaps comply with such request in the interest
of the good reputation of the institution.” Don’t you find that language
just a bit restrained, Witness?
A. Yes. I think it is very restrained.
-----
[93] Trial of the Major War Criminals, vol. I, pp. 247, 301, Nuremberg,
1947.
[94] Defendant in case before International Military Tribunal. See Trial
of the Major War Criminals, Vols. I-XLII, Nuremberg, 1947.
[95] Objection to admission in evidence sustained.
[96] Ibid.
[97] Objection to admission in evidence sustained.
[98] Defendant (in absentia) before International Military Tribunal. See
Trial of the Major War Criminals, vols. I-XLII, Nuremberg, 1947.
[99] Code name for the killing of non-German nationals and Jews who were
inmates of the concentration camps.
[100] Trial of the Major War Criminals, vol. XX, pp. 490-1, Nuremberg,
1948.
[101] Trial of the Major War Criminals, vol. I, p. 247, Nuremberg, 1947.
[102] United States _vs._ Alfons Klein, et al. See Law Reports of Trials
of War Criminals, vol. I, pp. 46-54, London, 1947.
[103] Ibid.
[104] Not introduced in evidence.
[105] Not introduced in evidence.
[106] United States _vs._ Alfons Klein, et al. See Law Reports of Trials
of War Criminals, vol. I, pp. 46-54, London, 1947.
[107] Ibid.
[108] Final plea is recorded in mimeographed transcript, 18 July 1947,
pp. 11220-11244.
[109] Defendant before International Military Tribunal. See Trial of the
Major War Criminals, vol. I, pp. 298-301, Nuremberg, 1947.
[110] Literally: Nonprofit Sick Transport Company.
[111] German or of similar blood (of German blood), Jew, Jewish mixed
breed Grades I or II, Negro (mixed breed).
[112] Defendant in case of United States _vs._ Josef Altsetoetter, et
al. See Vol. III.
[113] Enclosures were not available.
[114] Complete testimony is recorded in mimeographed transcript, 16, 17
Jan. 1947, pp. 1866-1946.
[115] Complete testimony is recorded in mimeographed transcript, 7, 8,
9, 12, 13, 14, 15, 16, 19 May 1947, pp. 7413-7772.
[116] Trial of the Major War Criminals, vol. I, pp. 250, 252-253,
Nuremberg, 1947.
[117] Complete testimony is recorded in mimeographed transcript, 16 Jan
1947, pp. 1816-1863.
[118] Complete testimony is recorded in mimeographed transcript, 3, 4,
5, 6, 7 Feb 1947, pp. 2301-2661.
E. Selections From Photographic Evidence
of the Prosecution
[Illustration: INMATES OF THE DACHAU CONCENTRATION CAMP
IN DIFFERENT STAGES OF SIMULATED ALTITUDE IN THE
LOW PRESSURE CHAMBER
DOCUMENT NO-610, PROSECUTION EXHIBIT 41]
[Illustration: DOCUMENT NO-610, PROSECUTION EXHIBIT 41]
[Illustration: DOCUMENT NO-610, PROSECUTION EXHIBIT 41]
POST-MORTEM DISSECTION OF HIGH-ALTITUDE EXPERIMENTAL
SUBJECTS SHOWING AIR BUBBLES IN BLOOD VESSELS
IN SUBARACHNOID SPACE OF BRAIN AND UNDER PLEURA
OF ANTERIOR CHEST WALL
[Illustration: DOCUMENT NO-1080 A, PROSECUTION EXHIBIT 219 A]
EXPOSURES OF THE WITNESS MARIA KUSMIERCZUK WHO
UNDERWENT SULFANILAMIDE AND BONE EXPERIMENTS
WHILE AN INMATE OF THE RAVENSBRUECK CONCENTRATION
CAMP
[Illustration: EXPOSURES OF THE WITNESS MARIA KUSMIERCZUK WHO UNDERWENT
SULFANILAMIDE AND BONE EXPERIMENTS WHILE AN INMATE OF THE RAVENSBRUECK
CONCENTRATION CAMP—Continued]
DOCUMENT NO-1080 E
PROSECUTION EXHIBIT 219 E
DOCUMENT NO-1080 F
PROSECUTION EXHIBIT 219 F
[Illustration: EXPOSURES OF THE WITNESS JADWIGA DZIDO WHO UNDERWENT
SULFANILAMIDE AND BONE EXPERIMENTS WHILE AN INMATE OF THE RAVENSBRUECK
CONCENTRATION CAMP]
DOCUMENT NO-1082 A
PROSECUTION EXHIBIT 214 A
DOCUMENT NO-1082 C
PROSECUTION EXHIBIT 214 C
[Illustration: PHOSPHORUS BURNS ARTIFICIALLY INFLICTED ON
INMATES OF THE BUCHENWALD CONCENTRATION CAMP
DOCUMENT NO-579, PROSECUTION EXHIBIT 288]
[Illustration: TANK CONTAINING FORMALDEHYDE FOR THE
PRESERVATION OF CORPSES
DOCUMENT NO-807, PROSECUTION EXHIBIT 185]
[Illustration: CORPSES ASSEMBLED IN TANKS PRIOR TO DISSECTION
DOCUMENT NO-807, PROSECUTION EXHIBIT 185]
[Illustration: CORPSES ASSEMBLED IN TANKS PRIOR TO DISSECTION—Continued
DOCUMENT NO-807, PROSECUTION EXHIBIT 185]
[Illustration: CORPSE SHOWING INCISIONS IN PREPARATION FOR DISSECTION
DOCUMENT NO-807, PROSECUTION EXHIBIT 185]
VIII. EVIDENCE AND ARGUMENTS ON
IMPORTANT ASPECTS OF THE CASE
A. Applicability of Control Council Law No. 10 to
Offenses Against Germans During the War
a. Introduction
Under count III of the indictment, “Crimes against Humanity”, the
prosecution alleged that the defendants had engaged in medical
experiments “_upon German civilians_ and nationals of other countries”
and that the defendants had participated in executing “the so-called
‘euthanasia program’ of the German Reich, in the course of which the
defendants herein murdered hundreds of thousands of human beings,
_including German civilians_, as well as civilians of other nations”.
[Emphasis added.] Insofar as these offenses involved German nationals,
the defense argued that international law was not applicable. The
defense argued that under, the Charter annexed to the London Agreement,
crimes against humanity within the meaning of the Charter do not exist
unless offenses are committed “in the execution of, or in connection
with, any crime within the jurisdiction of the Tribunal”. Although the
analogous provision of Control Council Law No. 10 does not include the
words of limitation “in the execution of, or in connection with any
crime within the jurisdiction of the Tribunal”, the defense argued that
Control Council Law No. 10 was only “an implementation law” of the
London Agreement and Charter, and hence could not increase the scope of
the offenses defined by the London Charter. Pointing to the section of
the judgment of the International Military Tribunal entitled “The law
relating to war crimes and crimes against humanity”,[119] the defense
noted that the IMT stated: “to constitute crimes against humanity, the
acts relied on before the outbreak of war must have been in execution
of, or in connection with, any crime within the jurisdiction of the
Tribunal”,[120] that is, crimes against peace or war crimes. Although
the indictment in the Medical Case did not allege that crimes were
committed against German nationals before the outbreak of the war on 1
September 1939, the defense further argued that any offenses against
German nationals committed after 1939 had not been shown to be “in
execution of, or in connection with” crimes against peace and war crimes
and hence were not cognizable as crimes within the jurisdiction of the
Tribunal.
Extracts from the closing statement of the prosecution appear below on
pages 910 to 915. A summation of the evidence on this question by the
defense has been taken from the closing brief for defendant Karl Brandt.
It appears below on pages 915 to 925.
b. Selection from the Argumentation of the Prosecution
_EXTRACTS FROM THE CLOSING STATEMENT OF THE PROSECUTION_[121]
* * * * *
_The Law of the Case_
Before proceeding to outline the prosecution’s case, it may perhaps be
desirable to anticipate several legal questions which will undoubtedly
be raised with respect to war crimes and crimes against humanity, as
defined in Article II of Control Council Law No. 10. Law No. 10 is, of
course, the law of this case and its terms are conclusive upon every
party to this proceeding. This Tribunal is, we respectfully submit,
bound by the definitions in Law No. 10, just as the International
Military Tribunal was bound by the definitions in the London Charter. It
was stated in the IMT judgment that:[122]
“The jurisdiction of the Tribunal is defined in the Agreement
and Charter, and the crimes coming within the jurisdiction of
the Tribunal, for which there shall be individual
responsibility, are set out in Article 6. The law of the Charter
is decisive and binding upon the Tribunal * * *.”
* * * * *
In outlining briefly the prosecution’s conception of some of the legal
principles underlying war crimes and crimes against humanity, I shall,
with the Tribunal’s permission, adopt some of the language from the
opening statement of the prosecution in the case against Friedrich
Flick, et al., now pending before Tribunal IV. [See Vol. VI.] General
Taylor there said—
* * * * *
“Law No. 10 is * * * a legislative enactment by the Control
Council and is therefore part of the law of and within Germany.
One of the infirmities of dictatorship is that, when it suffers
irretrievable and final military disaster, it usually crumbles
into nothing and leaves the victims of its tyranny leaderless
amidst political chaos. The Third Reich had ruthlessly hunted
down every man and woman in Germany who sought to express
political ideas or develop political leadership outside of the
bestial ideology of nazism. When the Third Reich collapsed,
Germany tumbled into a political vacuum. The declaration by the
Allied Powers of 5 June 1945 announced the ‘assumption of
supreme authority’ in Germany ‘for the maintenance of order’ and
‘for the administration of the country’, and recited that—
‘There is no central government or authority in Germany
capable of accepting responsibility for the maintenance
of order, the administration of the country, and
compliance with the requirements of the victorious
powers.’
“Following this declaration, the Control Council was constituted
as the repository of centralized authority in Germany. Law No.
10 is an enactment of that body and is the law of Germany,
although its substantive provisions derive from and embody the
law of nations. The Nuernberg Military Tribunals are established
under the authority of Law No. 10,[123] and they render judgment
not only under international law as declared in Law No. 10, but
under the law of Germany as enacted in Law No. 10. The
Tribunals, in short, enforce both international law and German
law, and in interpreting and applying Law No. 10, they must view
Law No. 10 not only as a declaration of international law, but
as an enactment of the occupying powers for the governance of
and administration of justice in Germany. The enactment of Law
No. 10 was an exercise of legislative power by the four
countries to which the Third Reich surrendered, and, as was held
by the International Military Tribunal:[124]
‘* * * the undoubted right of these countries to legislate for
the occupied territories has been recognized by the civilized
world.’”
War crimes are defined in Law No. 10 as atrocities or offenses in
violation of the laws or customs of war. This definition is based
primarily upon the Hague Convention of 1907 and the Geneva Convention of
1929, which declare the law of nations at those times with respect to
land warfare, the treatment of prisoners of war, the rights and duties
of a belligerent power when occupying territory of a hostile state, and
other matters. The laws and customs of war apply between belligerents,
but not domestically or among allies. Crimes by German nationals against
other German nationals are not war crimes, nor are acts by German
nationals against Hungarians or Romanians. The war crimes charged in
this indictment all occurred after 1 September 1939, and it is therefore
unnecessary to consider the somewhat narrow limitation of the scope of
war crimes by the International Military Tribunal to acts committed
after the outbreak of war. One might argue that the occupations of
Austria and the Sudetenland in 1938, and of Bohemia and Moravia in March
1939, were sufficiently similar to a state of belligerency to bring the
laws of war into effect, but such questions are academic for purposes of
this case.
* * * * *
In connection with the charge of crimes against humanity, it is also
anticipated that an argument will be made by the defense to the effect
that crimes committed by German nationals against other German nationals
cannot constitute crimes against humanity as defined by Article II of
Control Council Law No. 10 and hence are not within the jurisdiction of
this Tribunal. The evidence of the prosecution has proved that in
substantially all of the experiments prisoners of war or civilians from
German-occupied territories were used as subjects. This proof stands
uncontradicted save by general statements of the defendants that they
were told by Himmler or some unidentified person that the experimental
subjects were all German criminals or that the subjects all spoke fluent
German. Thus, for the most part, the acts here in issue constitute war
crimes and hence, at the same time, crimes against humanity. Certainly
there has been no proof whatever that an order was ever issued
restricting the experimental subjects to German criminals as
distinguished from non-German nationals. If, in this or that minor
instance, the proof has not disclosed the precise nationality of the
unfortunate victims or has even shown them to be Germans, we may rest
assured that it was merely a chance occurrence.
Be that as it may, the prosecution does not wish to ignore a challenge
to the jurisdiction of the Tribunal even though it is of minor
importance to this case. One thing should be made clear at the outset:
We are not here concerned with any question as to jurisdiction over
crimes committed before 1 September 1939, whether against German
nationals or otherwise. That subject has been mooted and is in issue in
another case now on trial, but the crimes in this case all occurred
after the war began.
Moreover, we are not concerned with the question whether crimes against
humanity must have been committed “in execution of or in connection with
any crimes within the jurisdiction of the Tribunal.” The International
Military Tribunal construed its Charter as requiring that crimes against
humanity be committed in execution of, or in connection with, the crime
of aggressive war. Whatever the merit of that holding, the language of
the Charter of the International Military Tribunal which led to it is
not included in the definition of crimes against humanity in Control
Council Law No. 10. There can be no doubt that crimes against humanity
as defined in Law No. 10 stand on an independent footing and constitute
crimes _per se_. In any event, the crimes with which this case is
concerned were in fact all “committed in execution of, or in connection
with, the aggressive war.” This is true not only of the medical
experiments, but also of the Euthanasia Program, pursuant to which a
large number of non-German nationals were killed. The judgment of the
International Military Tribunal expressly so holds.[125]
Thus, it is clear that the only issue which is raised in this case as to
crimes against humanity is whether the Tribunal has jurisdiction over
crimes committed by Germans against Germans. Does the definition of
crimes against humanity in Control Council Law No. 10 comprehend crimes
by Germans against Germans of the type with which this case is
concerned? The provisions of Law No. 10 are binding upon the Tribunal as
the law to be applied to the case.[126] The provisions of Section 1(c)
of Article II are clear and unambiguous. Crimes against humanity are
there defined as—
“Atrocities and offenses, including but not limited to murder,
extermination, enslavement, deportation, imprisonment, torture,
rape, or other inhumane acts committed against any _civilian
population_, or persecutions on political, racial, or religious
grounds whether or not in violation of the domestic laws of the
country where perpetrated.” [Emphasis supplied.]
The words “any civilian population” cannot possibly be construed to
exclude German civilians. If Germans are deemed to be excluded, there is
little or nothing left to give purpose to the concept of crimes against
humanity. War crimes include all acts listed in the definition of crimes
against humanity when committed against prisoners of war and the
civilian population of occupied territory. The only remaining
significant groups are Germans and nationals of the satellite countries,
such as Hungary or Romania. It is one of the very purposes of the
concept of crimes against humanity, not only as set forth in Law No. 10
but also as long recognized by international law, to reach the
systematic commission of atrocities and offenses by a state against its
own people. The concluding phrase of the definition of crimes against
humanity, _which is in the alternative_, makes it quite clear that
crimes by Germans against Germans are within the jurisdiction of this
Tribunal. It reads “or persecutions on political, racial, or religious
grounds _whether or not in violation of the domestic laws of the country
where perpetrated_.” This reference to “domestic laws” can only mean
discriminatory and oppressive legislation directed against a state’s own
people, as for example, the Nuernberg Laws against German Jews.
[Emphasis supplied.]
The matter is put quite beyond doubt by Article III of Law No. 10 which
authorizes each of the occupying powers to arrest persons suspected of
having committed crimes defined in Law No. 10, and to bring them to
trial “before an appropriate tribunal.” Paragraph 1(d) of Article III
further provides that—
“Such Tribunal may, in the case of crimes committed by persons
of German citizenship or nationality against other persons of
German citizenship or nationality, or stateless persons, be a
German court, if authorized by the occupying authorities.”
This constitutes an explicit recognition that acts committed by Germans
against other Germans are punishable as crimes under Law No. 10
according to the definitions contained therein in the discretion of the
occupying power. This has particular reference to crimes against
humanity, since the application of crimes against peace and war crimes,
while possible, is almost entirely theoretical. If the occupying power
fails to authorize German courts to try crimes committed by Germans
against other Germans (and in the American zone of occupation no such
authorization has been given), then these cases are tried only before
non-German tribunals, such as these Military Tribunals.
What would be the effect of a holding that crimes by Germans against
Germans can under no circumstances be within the jurisdiction of the
Tribunal? Is this Tribunal to ignore the proof that tens of thousands of
Germans were exterminated pursuant to a secret decree, because a group
of criminals in control of a police state thought them “useless eaters”
and an unnecessary burden, or that German prisoners were murdered and
mistreated by thousands in concentration camps, in part by medical
experimentation? Military Tribunal II in the Milch case held that crimes
against nationals of Hungary and Romania were crimes against humanity.
There is certainly no reason in saying that there is jurisdiction over
crimes by Germans against Hungarians but not against Germans.
The judgment of the International Military Tribunal shows a clear
recognition of its jurisdiction over crimes by Germans against Germans.
After reviewing a large number of inhumane acts in connection with war
crimes and crimes against humanity, the Tribunal concluded by saying
that—
“* * * from the beginning of the war in 1939 war crimes were
committed on a vast scale, which were also crimes against
humanity; and insofar as the inhumane acts charged in the
indictment, and committed after the beginning of the war, did
not constitute war crimes, they were all committed in execution
of, or in connection with the aggressive war, and therefore
constituted crimes against humanity.”[127]
Since war crimes are necessarily also crimes against humanity, the
broader definition of the latter can only refer to crimes not covered by
the former, namely, crimes against Germans and nationals of countries
other than those occupied by Germany. Moreover, the prosecution in that
case maintained that the inhumane treatment of Jews and political
opponents _in Germany_ before the war constituted crimes against
humanity. The Tribunal said in this connection—
“With regard to crimes against humanity there is no doubt
whatever that political opponents were murdered in Germany
before the war, and that many of them were kept in concentration
camps in circumstances of great horror and cruelty. The policy
of terror was certainly carried out on a vast scale, and in many
cases was organized and systematic. The policy of persecution,
repression, and murder of civilians in Germany before the war of
1939, who were likely to be hostile to the government, was most
ruthlessly carried out. The persecution of Jews during the same
period is established beyond all doubt.”[128]
The Tribunal was there speaking exclusively of crimes by Germans against
Germans. It held that such acts were not crimes against humanity, as
defined by the Charter, not because they were crimes against Germans,
but because they were not committed in execution of, or in connection
with, aggressive war. Indeed, the Tribunal went on to hold that the very
same acts committed after the war began were crimes against humanity. No
distinction was drawn between the murder of German Jews and Polish or
Russian Jews. And, moreover, no distinction was drawn between criminal
medical experimentation on German and non-German concentration camp
inmates or the murder of German and non-German civilians under the
Euthanasia Program. The Tribunal held them all to be war crimes and/or
crimes against humanity.
c. Selection from the Argumentation of the Defense
_EXTRACTS FROM THE CLOSING BRIEF FOR DEFENDANT
KARL BRANDT_
* * * * *
_The Punishable Crime Against Humanity_
The criminality of the crime against humanity is based on Law No. 10 of
the Control Council for Germany. Article II of this law states—
“1. Each of the following acts is recognized as a crime:
* * * * *
_c._ Crime against humanity * * *.”
The concept of the crime against humanity has not been established and
it is questionable whether crimes against humanity according to Law No.
10 also refer to such acts as have been committed on German nationals by
German nationals. The decision of this question is of particular
significance since the medical experiments with which the defendants are
charged and the mercy killings executed were, in the first place,
carried out on German nationals.
The question here is not to establish whether such acts are against
humanity but whether they are crimes against humanity punishable
according to Law No. 10 which were committed knowingly and willfully. If
measures taken against German nationals do not come under the law, the
evidence of the prosecution to be examined is restricted mainly to those
cases in which certain foreigners were affected, and in addition,
evidence must be produced proving that the defendant was aware of the
fact that foreigners too had actually been involved by these measures.
It is to be understood from Law No. 10 that it is merely an
_implementation law_ to the London Agreement of 8 August 1945 and the
statute belonging to it. This has been expressly stressed in the
introduction, and beyond that the London Statute and the Moscow
Declaration of 30 October 1943 have been declared inseparable components
of the law according to Article I.
The legally pre-eminent London Statute therefore is decisive for the
interpretation of the substantive law. Article 6(c) of this statute
provides that crimes against humanity can be considered punishable only
if they were committed “in execution of or in connection with any crime
within the jurisdiction of the Tribunal * * *”. This jurisdiction,
however, extends only to crimes against peace and to war crimes. The
punishable crime against humanity, therefore, is restricted to the
latter. The prosecution, however, has only recently championed a
different opinion. In Case 5 before Tribunal IV, the case against Flick
and others,[129] the prosecution declared in its opening statement on 19
April 1947 that the clause: “in connection with a crime within the
jurisdiction of the tribunal” has a different meaning from what it
expresses. The clause is to signify that the Tribunal is not to deal
with individual crimes but only with such crimes as have been committed
on _a large scale_ and are therefore within the jurisdiction of the
trial.
This meaning of the clause was not apparent to the International
Military Tribunal, the prosecutors of the signatory powers at that time,
nor to those who later commented on the verdict, and I do not believe
that one can agree with the newly established interpretation of the
prosecution. The decision of the _International Military Tribunal_ is
authoritative for the interpretation since it was pronounced by the
judges of the signatory powers who were expressly appointed for
application of the new law. _The high authority_ of the International
Military Tribunal is emphasized by Ordinance 7, Article X, according to
which its actual findings are binding for the later courts.
This International Military Tribunal, however, has ruled that the
punishable crime against humanity is a _dependent, subsidiary crime_ and
that it can only be considered a crime if it has been committed in
connection with a war crime or a crime against peace. The verdict of the
International Military Tribunal[130] in rejecting the criminality of
crimes against humanity committed prior to the war states the following:
“The Tribunal is of the opinion that revolting and horrible as
many of these crimes were, it has not been satisfactorily proved
that they were done in execution of, or in connection with, any
such crime.”
The _prosecution before the International Military Tribunal_ has on its
part endeavored to prove such a connection; this would not have been
necessary if it had not considered this connection a part of the
specification of the crime against humanity. Professor Donnedieu de
Vabres, the French judge of the International Military Tribunal,
expressed his attitude to this limitation of the punishable crime
against humanity after the pronouncement of the verdict in a lecture
quoted by the prosecution in the Flick case;[131] his opinion can be
considered important. The French judge deplores the limitation of the
crime against humanity, but he confirms it. This limitation is no
figment of the imagination but the _necessary result_ of the prevailing
international law; it has its origin in the concept of _sovereignty_.
It is the purport of the _Moscow Declaration_ and the London Statute,
both of which have been incorporated into Law No. 10, to deal only with
the crimes that affect the relations between nations. These relations
are to be safeguarded and for that reason crimes are to be punished
which are significant according to international law and which are
connected with war crimes and crimes against peace. The
“_international_” crimes are to be punished.
This significance of the international crime to be understood from the
point of view of international law is especially clearly expounded in a
book written by Professor Trainin who was the official advisor on
judicial matters for the _Soviet Union_ in the proceedings in Case I,
the International Military Tribunal. This is a book entitled “The
Criminal Responsibility of the Hitlerites” published by the Law
Institute, Academy of Science in the Soviet Union, through [edited by]
the academician Vishinsky. The book was written at the time the statute
originated. According to this, it is not the meaning and purpose of
“international criminal law” to impose punishment for crimes which have
no effect _beyond the borders of their own country_ and which do not
involve the _sphere of international law_.
The fact that no thought was given to punishment of crimes committed
within the borders of Germany is evident from the _Moscow Declaration_
of 30 October 1943. In this declaration crimes are mentioned exclusively
which have been committed in other countries to which the accused are to
be _returned_.
If there could still be doubts with regard to the interpretation of the
subsidiary nature of the crime against humanity, these doubts are
eliminated by the _Berlin Addendum Minutes_ [Zusatzprotokoll] added to
the statute, dated 6 October 1945. In these minutes the subsidiary
nature of the crime against humanity is elucidated by means of a
_correction_, the apparent insignificance of which is the very thing
that serves to emphasize its importance. According to this, the four
Allied Main Powers, as the signatories of the statute, meet again only
for the purpose of transforming a _semicolon into a comma_ and it
appears in the minutes that this was done because the meaning and
intentions of the agreements and the statute require it.
Article 6 (c) of the statute was originally worded as follows and even
at present is reproduced in many copies in the same form as far as
punctuation is concerned:
“(c) CRIMES AGAINST HUMANITY: namely, murder, extermination,
enslavement, deportation, and other inhumane acts committed
against any civilian population, before or during the war ‘;’ or
persecutions on political, racial or religious grounds in
execution of or in connection with any crime within the
jurisdiction of the Tribunal, whether or not in violation of the
domestic law of the country where perpetrated.”
The wording of the Berlin Addendum Minutes [Protocol] dated 6 October
1945 in this context reads as follows:[132]
“Whereas an Agreement and Charter regarding the Prosecution of
War Criminals was signed in London on the 8th August 1945, in
the English, French, and Russian languages,
“And whereas a discrepancy has been found to exist between the
originals of Article 6, paragraph (c), of the Charter in the
Russian language, on the one hand, and the originals in the
English and French languages, on the other, to wit, the
semicolon in Article 6, paragraph (c), of the Charter between
the words ‘war’ and ‘or’, as carried in the English and French
texts, is a comma in the Russian text,
“And whereas it is desired to rectify this discrepancy:
“NOW, THEREFORE, the undersigned, signatories of the said
Agreement on behalf of their respective Governments, duly
authorized thereto, have agreed that Article 6, paragraph (c),
of the Charter in the Russian text is correct, and that the
meaning and intention of the Agreement and Charter require that
the said semi-colon in the English text should be changed to a
comma, and that the French text should be amended to read as
follows:
“(c) LES CRIMES CONTRE L’HUMANITE: c’est à dire l’assassinat,
l’extermination, la réduction en esclavage, la déportation, et
tout autre acte inhumain commis contre toutes populations
civiles, avant on pendant la guerre, ou bien les persécutions
pour des motifs politiques, raciaux, ou réligieux, lorsque ces
actes ou persécutions, qu’ils aient constitué ou non une
violation du droit interne du pays où ils ont été perpétrés ont
été commis à la suite de tout crime rentrant dans la compétence
du Tribunal, ou en liaison avec ce crime.
“In witness whereof the Undersigned have signed the present
Protocol.
“Done in quadruplicate in Berlin this 6th day of October 1945,
each in English, French, and Russian, and each text to have
equal authenticity.
For the Government of the United States of America:
[Signature] ROBERT H. JACKSON
For the Provisional Government of the French Republic:
[Signature] FRANÇOIS DE MENTHON
For the Government of the United Kingdom of
Great Britain and Northern Ireland:
[Signature] HARTLEY SHAWCROSS
For the Government of the Union of Soviet Socialist Republics:
[Signature] R. RUDENKO”
Obviously it was no printing error which simply would have been
corrected. This is rather a _carefully thought out limitation_ on the
part of the Signatory Powers which was _clarified_ unmistakably. Without
this limitation, a _precedent_ of decisive significance would have been
created for _international law_ for the possibility would have existed
to prosecute at any time alleged crimes against humanity in a different
country. According to this, the socialist states would have assailed the
social conditions in capitalistic countries as crimes against humanity,
and vice versa the capitalistic states could have replied to the
measures of the socialist countries with an _intervention_ as
experienced by the young Bolshevist Revolution in 1919. Precisely that
however was to be prevented by not recognizing an independent crime
against humanity for the protection of sovereign states. Professor
Donnedieu de Vabres has particularly mentioned this point of view in his
lecture _as a decisive point of view of the International Military
Tribunal_.
The same restrictive view of this question is taken in the latest
_International Law of the United Nations Organization_ (UNO), Chapter I,
Article 2, paragraph 7 of the resolution of San Francisco, concerning
the establishment of UNO, dated 26 June 1945, reads that an
_interference_ in matters which are within the jurisdiction of the
country is _inadmissible_. Accordingly it is a fixed principle of
international law even today that proceedings within a state cannot
entail sanction; spoken in the words of the statute, there are no
independent crimes against humanity, which might be punished as
international crimes.
The opinion of Hugo Grotius and his numerous adherents is rejected and
is no longer valid as international law today. _Interventions from
points of view of humanity are declined_, as their motive seems
suspicious to the states.[133]
Decisive alone is the practice of the members of the _body of the
nations who have agreed on international law_
(Voelkerrechtsgemeinschaft) and the existing agreements on international
law.
These _legal realities_ must be contrasted with the extravagant opinion,
which believes that the protection of humanity can only be safeguarded
by a kind of international sovereignty limited by the sovereignty of the
individual states. This would be an aim which we would most sincerely
desire to attain, but practice shows that there are plenty of crimes
against humanity even today, but _no institution_ which has the power to
punish them. There will never be such an institution, except insofar as
it concerns the totally _vanquished after a total war_, to which in the
future every war must lead.
Another point of view is quoted too which, in face of the decision of
the IMT and while avoiding a precedent, will make crimes against
humanity independent, at least insofar as application in Germany is
concerned, with the effect that crimes of Germans against Germans could
be punished by the military tribunals of the occupying power.
It is maintained that the _authority of the Control Commission_ for
Germany _with regard to national law_ gave them the power to extend the
scope of punishment for crimes against humanity, independent of the
statute. This is opposed by the elementary principle of international
law that the _legislative authority_ of an occupying power _only_ begins
_with the moment of occupation_ and therefore can have _no retrospective
force_. This principle is not in opposition to the theory that
international law acknowledged a so-called “_retrospectiveness_” for war
crimes in a wider sense, for this retrospectiveness only refers to the
“_international crimes_” which are effective outside of one’s own
country and have an immediate influence from the point of view of
international law. There it serves to carry through international penal
law, the realization of which would _otherwise be impossible_. Here the
so-called retrospectiveness means nothing else but that international
law takes precedence over national law. This international point of view
can have no value for national law.
If a different rule were in operation, all persons who supported the
political opponent, i. e., the so-called “_patriots_” might be punished
after the occupation of a country, and Hitler’s Commissar Order
[Kommissar-Befehl] according to which all active Communists were to be
shot, would be sanctioned, because they were Communists and because of
that were declared enemies of mankind, i. e. “criminals against
humanity.”
Such a _checking of the “morals”_ of the enemy seems inadmissible; the
checking of the conditions in one’s own country is a matter for the
people itself; the latter may, on account of its laws, or in a
revolution, prosecute its compatriots itself, on the grounds of their
behavior. The IMT kept just to this fundamental idea of the statute and
one cannot push this law aside arbitrarily by declaring on political
grounds that _in order to secure peace and democracy_ all actions
committed formerly in the country must be punished as crimes against
humanity.
By such an interpretation of the authority in national law you would
place yourself in strong opposition to the _proclamation of General
Eisenhower_ on the occasion of the occupation of Germany; this was
incorporated in Law No. 1 of Military Government, and the following was
decreed under threat of death in case of violation:
“Accusation may only be brought in, sentence only be passed and
punishment be inflicted, if a law which was in force at the time
when the act was committed expressly declares this action
punishable. Punishment of acts as a result of application of
analogy or according to the opinion of the ‘sound popular
feeling’ is prohibited.”
Then attempts were made to support the unlimited legislative right of
the occupying power by other means, and they referred to a
“_debellatio_” or “_quasi-debellatio_” or to the fact that Germany had
_capitulated unconditionally_.
Disregarding the fact that no _debellatio_ is in hand and that only the
Allies pronounce themselves occupying powers, and, without mentioning
that Grossadmiral Doenitz[134] _had no valid authority_ to renounce the
protective international law for the German people, the valid law is
clearly laid down in the _Hague Convention_. The regulations contained
there in _Chapter III_ have been created just for a capitulation
situation and regulate the _right of occupation_.
Unconditional capitulation does not mean renunciation of the protection
of international law nor submission to arbitrariness and illegality; but
_capitulation within the framework of the war conventions_, i. e.,
within the framework of the Hague Convention.
These provisions of the Hague Convention are not only valid for the time
of actual fighting, but must be valid also for the _time after cessation
of the actual hostilities_ until the peace treaty. The fundamental idea
of the Hague Convention is the protection of the population against the
arbitrariness of the enemy, and it cannot be permitted that after
cessation of hostilities _stricter rules_ may be applied to the
inhabitants of an occupied territory _than during the time of actual
fighting_. In the time when the occupying power hardly seems endangered
any more the arbitrariness of a belated punishment of political
opponents for actions, which they did in their own country according to
the laws of their own country, must not rule.
Law No. 10 cannot disregard this international law, which was
acknowledged by the International Military Tribunal after it had been
issued and this Tribunal will have to check the _authority of the
Control Commission_ and watch that no measures are taken of which the
participating peoples of the Signatory States are not informed
officially, as the decisive laws were submitted to _no special
ratification_.
Thus we come to the conclusion that the crime against humanity _of Law
No. 10_ must be the _same as that of the statute_. Bound to a war crime
it cannot be applied to actions of Germans against Germans. Connected
with a _crime against peace_ you can imagine such crimes against
Germans, but these crimes must be in the execution of or in connection
with a crime against peace. So at least there must be a _close
connection_ with a _certain crime_.
Certainly it cannot be sufficient, therefore, that an act against a
German is committed during a war and objectively furthered the war, but
the perpetrator _must have known_ that his action was in _connection_
with a certain crime against peace, even if he himself were not guilty
of it. Without this limit, all hard measures, which are taken during a
war even against one’s own population, as for example against
conscientious objectors and saboteurs, ought to be punished as crimes
against humanity in connection with a crime against peace, if this war
is declared to be an aggressive one by the enemy, after it has been
lost.
Therefore _certain_ things must be in hand which make the crime
_obvious_ and prove the connection. If you were to decide otherwise the
well-formulated specifications of the statute would be superfluous, and
likewise the protection of the population by the Hague Convention would
be set aside in an inadmissible way, as the execution of every ordered
war measure can be declared “inhuman”. This interpretation of the
subsidiary nature of the crime against humanity is confirmed, if one
ascertains what _the real crime against humanity_ itself is _primarily_
supposed to be.
In the Flick[135] case the prosecution tried to make a definition from
Article 6 (c) of the statute. They referred to the clause “_in
connection with a_ crime within the jurisdiction of the court”, and
interpreted this as follows: That crimes of especially _large
proportions_ must be in question, since the International Military
Tribunal should only deal with such. Such an interpretation cannot be
maintained, as the International Military Tribunal is competent for _the
most insignificant war crime too_, and for every crime against peace,
regardless of its dimensions.
It must be admitted that the statute _does not contain a definition at
all_ and that characteristics of a crime against humanity are _not
stipulated_. If you want to find such a specification for an independent
crime against humanity, which is detached from crimes against peace and
war crimes, you can only fall back on the notorious “_sound feeling_”
and you will get lost in the void, because its limits are not fixed, but
shift according to the _political wish_.
Here you can point to the fact that Germany’s unrestrained _U-boat war_
during the First World War was then pilloried as a _crime against
humanity_ and caused America to enter the war. During World War II,
however, the same manner of warfare was used by the USA against Japan;
this was cleared up before the International Military Tribunal by an
affidavit of Admiral Nimitz.[136]
The answer to the question as to what the crime against humanity itself
consists of can only be given from the _examples of the statute_ and can
be supported by the _interpretation_ which the International Military
Tribunal has given. According to this the _crime against humanity_ is
the _aggravation_ of a war crime or a crime against peace. It differs
from these crimes by its _dimension_, its _system_, and the _manner_ of
execution. This can be deduced from the wording of the text of the
statute where as typical examples are quoted: “extirpation, enslavement,
deportation”.
In cases of crimes against humanity, according to this, actions must be
in question which are punishable in themselves already, but in addition
to this go further and are extended, so that they are _“qualified”
crimes_. The dimension of the crimes is confirmed by the _wording of the
Russian text_, which does not mention “homicide” but “homicides” in the
plural, and not “persecution” but “persecutions” in the plural. The
Russian text of Law No. 10 is worded similarly.
This opinion is confirmed in two places by the decision of the
International Military Tribunal. The question of crimes against humanity
is specially dealt with there in the section “War Crimes and Crimes
against Humanity”,[137] and in the section “The Law Relating to War
Crimes and Crimes against Humanity”.[138] Here the actions which are
pronounced as _crimes against humanity_ are characterized as perpetrated
“_on a large scale_” and as “methodically” and “systematically”
executed. They are called “terror politics” and are called “terrible and
brutal” as well as “utterly ruthless”, “deterrent and horrible”. Not
isolated murder nor isolated imprisonment nor the isolated boycotting of
a Jew is meant, but only a _general measure_ which violates “the most
elementary laws of humanity”.
These are not actions which an _individual_ can execute _alone_; he
needs _organized_ help for that. _Therefore_ the _perpetrator can only
be a commander_; he who obeys is his tool and can only become a
punishable assistant. Here the individual does _not_ act _from his own_
criminal _motive_, but he acts according to order and higher
instruction. Therefore the _motive_ of the action is basically
_political_. Above all, the Hague Convention had in mind common _crimes
of individuals_, which are rejected by the states themselves and which
they themselves prosecute by penal law in the interest of humanity. For
this purpose the states had issued corresponding national laws.
In the development of this idea, it is from now on a question of
preventing political measures, which are _methodically carried through
by the state_, by international penal law, i. e., measures which are
rejected by the International Military Tribunal as “barbaric methods”
and as “methods for breaking every resistance.”
The rejection of such methods as crimes against humanity was expressed
for the first time in _the Hague Convention [Annex] in Article 22_,
according to which the belligerent nations have no unlimited right in
the choice of means for doing damage to the enemy. Now the perpetrators
of these actions are to be _punishable_.
Which means are still permitted in battle, however, and which methods
are still admissible, can only be gathered from the practice of the
states. If you look for an independent _measuring rod for humanity_, you
must establish that things seem still admissible which force us to stop
a moment. The destruction of hundreds of thousands of inhabitants of an
unprotected city by bomb carpets and the use of the atomic bomb makes a
discussion rather senseless, as humanity did not object to these
horrors, which in future will even be surpassed.
_This measuring rod must_ not be forgotten if you proceed to the
judgment of the crimes against humanity of which people are accused
here. If such monstrosities are deemed admissible on one side, while
similar actions on the part of the enemy are condemned, the _judgment_
of humanity can only depend on the approval or disapproval of the
_purpose and aim_, and thereby loses the name of justice.
The firm ground on which the punishable crime against humanity rests,
can only be the _proved war crime_ or a _definite crime against peace_.
-----
[119] Trial of the Major War Criminals, vol. I, pp. 253-255, Nuremberg,
1947.
[120] Ibid., p. 254.
[121] Closing statement is recorded in mimeographed transcript, 14 July
1947, pp. 10718-10796.
[122] Trial of the Major War Criminals, vol. I, p. 218, Nuremberg, 1947.
[123] Control Council Law No. 10, Article III, par. 1(d) and 2, Military
Government Ordinance No. 7, Article II.
[124] Trial of the Major War Criminals, vol. I, p. 218, Nuremberg, 1947.
[125] Ibid., pp. 231, 247, 252, 254, 301.
[126] Ibid., pp. 174, 253.
[127] Ibid., pp. 254, 255.
[128] Ibid.
[129] United States _vs._ Friedrich Flick, et al. See Vol. VI.
[130] Trial of the Major War Criminals, vol. I, p. 254, Nuremberg, 1947.
[131] Lecture of Professor Donnedieu de Vabres, Association des Etudes
Internationales “Le Procès de Nuremberg.” Library of the International
Military Tribunal XII 259.
[132] Translation of Protocol in this brief differed from original
English copy. Authentic English version has been inserted here.
[133] Compare literature of the Soviet Union. (_Karl Brandt 188_ [not
introduced in evidence].)
1. History of the all-Soviet Communist Party (Bolshevists). Under the
editorial management of the commission of the Central Committee of the
Communist Party 1938 (Bolshevists) approved by the Central Committee of
the Communist Party OGIS State Publishing Office for Political
Literature 1945, chapter 8:
“The party of the Bolshevists during foreign military
intervention and the Civil War 1918-1920, page 215.
2. “Intervention,” play in 4 acts by Salawin [Slavin] 1940, Moskau
[Moscow]-Leningrad (_Karl Brandt 127_ [not introduced in evidence]).
[134] Defendant before International Military Tribunal. See Trial of the
Major War Criminals, Vols. I-XLII, Nuremberg, 1947.
[135] United States _vs._ Friedrich Flick, et al. See Vol. VI.
[136] Trial of the Major War Criminals, vol. XVII, pp. 377-381,
Nuremberg, 1948.
[137] Ibid., vol. I, pp. 226-228.
[138] Ibid., vol. I, pp. 253-255.