[Cover Illustration]
TRIALS
OF
WAR CRIMINALS
BEFORE THE
NUERNBERG MILITARY TRIBUNALS
UNDER
CONTROL COUNCIL LAW No. 10
[Illustration]
VOLUME II
NUERNBERG
OCTOBER 1946-APRIL 1949
For sale by the Superintendent of Documents,
U.S. Government Printing Office
Washington 25, D. C. — Price $2.75 (Buckram)
CONTENTS
_The Medical Case_
(Introductory material and basic directives under which trials
were conducted together with Chapters I-VIII-E of Medical Case
are printed in Volume I.)
Page
VIII. Evidence and Arguments on Important Aspects of the Case
(cont’d) 1
F. Necessity 1
G. Subjection to Medical Experimentation as Substitute
for Penalties 44
H. Usefulness of the Experiments 61
I. Medical Ethics 70
1. General Principles 70
2. German Medical Profession 86
3. Medical Experiments in other Countries 90
IX. Ruling of the Tribunal on Count One of the Indictment 122
X. Final Plea for Defendant Karl Brandt by Dr. Servatius 123
XI. Final Statements of the Defendants, 19 July 1947 138
XII. Judgment 171
The Jurisdiction of the Tribunal 172
The Charge 173
Count One 173
Count Two and Three 174
Count Four 180
The Proof as to War Crimes and Crimes Against Humanity 181
Permissible Medical Experiments 181
The Medical Service in Germany 184
The Ahnenerbe Society 188
Karl Brandt 189
Handloser 198
Rostock 208
Schroeder 210
Genzken 217
Gebhardt 223
Blome 228
Rudolf Brandt 235
Mrugowsky 241
Poppendick 248
Sievers 253
Rose 264
Ruff, Romberg, and Weltz 272
Brack 277
Becker-Freyseng 281
Schaefer 285
Hoven 286
Beiglboeck 290
Pokorny 292
Oberheuser 294
Fischer 296
Sentences 298
XIII. Petitions 301
XIV. Affirmation of Sentences by the Military Governor of the
United States Zone of Occupation 327
XV. Order of the United States Supreme Court Denying Writ of
Habeas Corpus 330
Appendix 331
Table of Comparative Ranks 331
List of Witnesses in Case 1 332
Index of Documents and Testimony 336
_The Milch Case_
Introduction 355
Order Constituting Tribunal 357
Members of Military Tribunal II 359
Prosecution Counsel 359
Defense Counsel 359
I. Indictment 360
II. Arraignment 365
III. Opening Statements 366
A. Opening Statement for the Prosecution 366
B. Opening Statement for the Defense 377
IV. Selections from the Documents and Testimony of Witnesses of
Prosecution and Defense 385
A. Slave Labor 385
1. General Slave Labor Program in Germany 385
2. The Central Planning Board 444
3. The Jaegerstab 524
4. Generalluftzeugmeister 596
B. Medical Experiments 623
C. Curriculum Vitae and Excerpts from the Testimony of
the Defendant Milch 633
V. Closing Statements 690
A. Closing Statement of the Prosecution 690
B. Closing Statement of the Defense 730
VI. Final Statement of the Defendant, 25 March 1947 772
VII. Judgment 773
A. Opinion and Judgment of the United States Military
Tribunal II 773
B. Concurring Opinion by Judge Michael A. Musmanno 797
C. Concurring Opinion by Judge Fitzroy D. Phillips 860
VIII. Petitions 879
A. Extract from Petition for Clemency to Military
Governor of United States Zone of Occupation 879
B. Petition to the Supreme Court of the United States
for Writ of Habeas Corpus 883
IX. Affirmation of Sentence by the Military Governor of the
United States Zone of Occupation 887
X. Order of the United States Supreme Court, 20 October 1947,
Denying Writ of Habeas Corpus 888
Appendix 889
List of Witnesses in Case 2 889
Index of Documents and Testimony 891
VIII. EVIDENCE AND ARGUMENTS ON
IMPORTANT ASPECTS OF THE CASE—Continued
F. Necessity
a. Introduction
The defense generally argued that the medical experiments took place
because of military necessity or the national emergency presented by
war. The defendant Sievers argued that his participation in various
experiments was a necessary part of his participation in a resistance
movement in Germany. The defendant Hoven argued that the concentration
camp inmates, who were killed by him or with his approval and knowledge,
were selected by the camp leadership which had been formed by the
political inmates themselves. Hoven also argued that the inmates killed
were all dangerous criminals who collaborated voluntarily with the SS,
and if they would not have been removed, the political inmates would
have been exterminated by these criminals and by the SS. He concluded
that it was therefore necessary, in order to prevent greater harm,
either to kill these “stool pigeons” personally or to give his approval
for their extermination.
On the argument of military necessity and national emergency, extracts
from the final plea for the defendant Gebhardt are included on pages 5
to 12. On the general question of necessity, extracts are included from
the examination of the defendant Karl Brandt by Judge Sebring on pages
29 to 30, and from the cross-examination of the prosecution’s expert
witness, Dr. Andrew C. Ivy on pages 42 to 44. The prosecution discussed
the general question of necessity in its opening statement.
The argument of the defendant Sievers that his participation was
necessary in connection with resistance to the Nazi leadership appears
in his final plea, an extract from which is given on pages 13 to 25.
From the evidence supporting the claim of Sievers, extracts from the
testimony of defense witness Dr. Friedrich Hielscher are included on
pages 30 to 41. The prosecution’s reply to Sievers’ special defense was
made, in part, in the prosecution’s closing statement, an extract of
which appears on pages 4 to 5. The argument of the defendant Hoven that
the killing of concentration camp inmates, of which he was accused, was
justifiable homicide appears in his final plea, an extract of which is
set forth on pages 25 to 28. The prosecution’s reply to this special
defense is set forth in the closing brief against the defendant Hoven,
an extract of which will be found on pages 2 to 4.
b. Selections from the Argumentation of the Prosecution
_EXTRACT FROM THE CLOSING BRIEF AGAINST DEFENDANT HOVEN_
* * * * *
(Hoven) tried to justify the killings [of concentration camp inmates] by
stating that these inmates were informers, spies, and stool pigeons of
the SS and therefore had to be exterminated. He said that if they had
been permitted to carry on with their activities, the illegal camp
management would have been wiped out and the criminal inmates in the
camp would have gained the upper hand. Hoven’s attempt at justification
for the killing of inmates of concentration camps is, of course, no
defense. It may well be true that Hoven sympathized and even
collaborated with the illegal camp management. It may also be true that
some of his victims may have been killed by him on the basis of
suggestions put forward by this illegal camp management. But it goes
without saying that these political prisoners, who instigated the murder
of their opponents, were in no position to judge whether it was really
necessary to kill them for the sake of the camp community. They only
judged this emergency from their own point of view, i.e., from the point
of view of the benefit of themselves. Hoven himself had no judgment at
all in this respect and simply made himself the willing and bought tool
of a small clique in the camp, who undoubtedly often tried to eliminate
not only persons whose activities were considered detrimental to the
well-being of their fellow inmates, but also personal opponents and
enemies. That Hoven was corrupted by the inmates and paid for his
murders is proved by the testimony of several witnesses.
Kogon testified:
“I can only conclude that both motives, the political motive and
the motive of corruption, were active in the case of Dr. Hoven.
_If Dr. Hoven expressed any desire—and he expressed many
desires—then these wishes were always filled._” (_Tr. p.
1213._)
“_He himself expressed many wishes constantly and all possible
advantages were given him by such people whom he had saved._”
(_Tr. p. 1214._)
Kirchheimer testified to the same effect. (_Tr. p. 1346._) The defense
witness Pieck painted pictures for Hoven and his family, and the defense
witness Horn in his affidavit stated that Hoven was very corrupt. The
prisoners knew it and they corrupted him in every possible manner and
made him gifts of furniture, underwear, and food. There were periods in
which complete workshops were erected for Hoven in which thirty or more
inmates were working.
Pieter Schalker testified before the Dutch Bureau for the Investigation
of War Crimes in Amsterdam that Hoven played an exceptionally evil role
and had innumerable deaths on his conscience owing to completely
inadequate medical attention. In later years, when it became obvious
that Germany would be defeated, he changed his attitude towards the
inmates. (_NO-1063, Pros. Ex. 328._) When Schalker was interrogated by
the commissioner of the Tribunal on the motion of defense counsel, he
amplified his statement by saying that Hoven stole the food which was
furnished for the experimental subjects in Block 46 and also obtained
other items such as shoes, toys, and women’s clothing.
The testimony of the affiant Ackermann, who was an inmate in the
pathological department under Hoven, proves that Hoven participated in
the customary brutal crimes in concentration camps. He said—
“Dr. Hoven stood once together with me at the window of the
pathological section and pointed to a prisoner, not known to me,
who crossed the place where the roll calls were held. Dr. Hoven
said to me: ‘I want to see the skull of this prisoner on my
writing desk by tomorrow evening.’ The prisoner was ordered to
report to the medical section, after the physician had noted
down the number of the prisoner. The corpse was delivered on the
same day to the dissection room. The postmortem examination
showed that the prisoner had been killed by injections. The
skull was prepared as ordered and delivered to Dr. Hoven.”
(_NO-2631, Pros. Ex. 522._)
Hoven also approved the beating of concentration camp inmates.
(_NO-2313, Pros. Ex. 523_; _NO-2312, Pros. Ex. 524._) One of these
inmates died.
On 20 August 1942, Hoven suggested to the camp commander of Buchenwald
that the reporting of deaths of Russian political prisoners be
discontinued in order to save paper. He said—
“It is requested that the question should be examined whether it
is necessary to issue reports of the death of political
Russians. According to a direction issued last week, an issue of
only one form was required. This may effect a saving of paper,
but as political Russians are for the greatest number among the
dead prisoners at the present time, more time and paper could be
saved if these death reports were dropped. Notifications of
death could be made as before, as for the Russian prisoners of
war.” (_NO-2148, Pros. Ex. 570._)
The proof has shown that beside the sixty inmates who were admittedly
killed by him, Hoven participated in the killing of many other inmates
of the Buchenwald concentration camp who suffered from malnutrition and
exhaustion. He selected the victims for the transports who were later
killed in the Bernburg Euthanasia Station. His defense that all his
activities were done only for the benefit of the political inmates in
the concentration camp is clearly ridiculous and without foundation.
It is interesting to note that Hoven’s defense that he killed for
idealistic motives is the same he used in the proceedings against him in
1944, only then his alleged idealistic motive was “to prevent a scandal
in the interest of the SS and the Wehrmacht.” (_NO-2380, Pros. Ex. 527_;
see also, _NO-2366, Pros. Ex. 526_.)
* * * * *
_EXTRACT FROM THE CLOSING STATEMENT OF THE
PROSECUTION_[1]
* * * * *
In Sievers we have an unresisting member of a so-called resistance
movement. He asks the Tribunal to free him from guilt for his bloody
crimes on the ground that he was really working as an anti-Nazi
resistance agent. Nor was he a latecomer to the resistance movement;
according to him, he has been resisting since 1933. Yet in those 14
years, yes to this very day, he has not performed one overt act against
the men who ran the system he now professes to have always detested. He
joined the Nazi Party as early as 1929 and the SS in 1935. He stayed
with Himmler’s gang until the last days of the collapse. He came to
Nuernberg in 1946, not to give evidence of the horrible crimes of which
he had first-hand knowledge, but to testify in defense of the SS. During
his testimony before the International Military Tribunal, he
consistently denied any knowledge of, or connection with, crimes
committed by the Ahnenerbe of the SS. It was left to the
cross-examination of Mr. Elwyn Jones to prove him the murderer and
perjurer that he is. Nor did he show any signs of resistance in this
trial except to the manifold crimes with which he is charged. Not one
new fact did he reveal to this Tribunal, although specifically asked to
tell all he knew. If asked today, he will assure one and all that there
is not a guilty man in the dock, and least of all himself. But, for
purposes of argument, let us concede the truth of his many lies. It does
not harm our case. It is not the law that a resistance worker can commit
no crime and, least of all, against the people he is supposed to be
protecting. It is not the law that an undercover agent, even an FBI
agent, can join a gang of murderers, lay the plans with them, execute
the killings, share the loot, and go his merry way. Many are the
policemen who have been convicted for taking part in crimes they were
entrusted to prevent. No, the sad thing is that this collector of living
Jews for transformation into skeletons has only one life with which to
pay for his many crimes.
* * * * *
c. Selections from the Argumentation of the Defense
_EXTRACTS FROM THE FINAL PLEA FOR DEFENDANT
GEBHARDT_[2]
* * * * *
_The State Emergency and War Emergency as Legal Excuse_
The evidence proved furthermore that the experiments to test the
effectiveness of sulfanilamide were necessary to clarify a question
which was not only of decisive importance for the individual soldier and
the troops at the front but above and beyond this care for the
individual, it was of vital importance for the fighting power of the
army, and thus for the whole fighting nation. All efforts to clarify
this question by studying the effect of casual wounds failed. Although
drugs of the sulfanilamide series—the number of which amounts to
approximately 3,000—had been tested for more than 10 years, it was
impossible to form an even approximately correct idea of the most
valuable remedies. It was impossible to clarify this question in
peacetime by the observation of many thousands of people with casual
wounds and by circularized inquiries. Nor could a clear answer be found
to this question of vital importance to many hundreds of thousands of
soldiers by observation of the wounded in field hospitals during the
war. In this argumentation it is impossible and also unnecessary to
examine details of the problem of wound infection and its control in
modern warfare. I may assume that the importance of this question is
known to the Tribunal and needs no further proof since this question not
only played a part in the German Army but was a matter of special
research and measures in the armies all over the world.
In 1942 the conditions in the German Army and in the Medical Services of
the Wehrmacht became intensified only insofar as with the beginning of
the campaign against the Soviet Union new difficulties presented
themselves in this sphere, too. In the campaigns against Poland and
France it had been possible to master the wound infections by the usual
surgical means, but the difficulties in the war against the USSR
increased beyond all measures. It is unnecessary to examine the reasons
for this more closely here. It is clear that they resulted from the
great distances and poor traffic conditions, but they were also caused
by climatic conditions prevailing there.
The fighting power of the German Army was so affected by the heavy
casualties that it was impossible to allocate a correspondingly large
number of experienced surgeons to the main dressing stations in order to
control bacterial wound infection with surgical measures.
During the presentation of evidence the difficult situation in which the
German armies found themselves in the winter of 1941-42 on the Moscow
front and in the south around Rostov was repeatedly stressed. Here it
was demonstrated clearly that the German Wehrmacht, and with it the
German people, were involved in a life and death struggle.
The leaders of the German Wehrmacht would have neglected their duty if
confronted with these facts, had they not attempted to solve, at any
price, the problem as to which chemical preparations were capable of
preventing bacterial wound infection and, above all, gas gangrene, and
also whether effective means could be found at all. Whatever the answer
to this question was, it had to be found as soon as possible in order to
avert an imminent danger and to throw light on a question which was
important to the individual wounded soldier as well as to the striking
power of the whole army. After the failure of all attempts to solve the
problem through clinical observation of incidental wounds and other
methods, and, in view of the particularly difficult situation and
especially of the time factor, there was nothing left but to decide the
question through an experiment on human beings. The responsible leaders
of the German Wehrmacht did not hesitate to draw the conclusions
resulting from this situation, and the head of the German Reich, who was
at the same time Commander in Chief of the German Wehrmacht, gave orders
for a final solution of this problem by way of large scale
experimentation.
Let us examine the legal conclusions to be drawn from this situation as
it existed in 1942 for the German Wehrmacht and therefore for the German
state—in particular regarding the assumption of an existing national
emergency.
The problem of emergency and the specific case of self-defense has been
regulated in almost all criminal codes in a way applicable only to
individual cases. The individual is granted impunity under certain
conditions when “acting in an individual emergency arising for himself
or others”. The administration of justice and legal literature, however,
recognize that even the commonwealth, the “state,” can find itself in an
emergency, and that acts which are meant to and actually do contribute
to overcome this emergency may be exempt from punishment.
1. First of all, the question has been raised whether the conception of
self-defense, conceived to cover individual cases, can be extended to
include a state self-defense, meaning a self-defense for the benefit of
the state and the commonwealth. The answer to this question was a
unanimous affirmative.
2. The same reasoning, however, as applied to self-defense is also
applicable to the conception of an emergency, as embodied, for example,
in Section 54 of the German Penal Code and in almost all modern systems
of penal law. These provisions, too, were originally conceived to cover
individual cases. But, using them as a starting point, legal literature
and the administration of justice arrive at a recognition in principle
of a national emergency with a corresponding effect. With regard to the
definition of the concept of an emergency generally given in the penal
laws, the application of these provisions to the state, while justified
in itself, can only be effected in principle.
When the idea of an emergency is applied to the state and when the
individual is authorized to commit acts for the purpose of eliminating
such a national emergency, here, as in the case of the ordinary
emergency determined by individual conditions, the objective values must
be estimated. The necessary consequences of conceding such actions on
the part of the individual must be that not only is he absolved from
guilt, but moreover his acts are “justified”. In other words, the
so-called national emergency, even though it is recognized only as an
analogous application of the ordinary concept of emergency in criminal
law, is a legal excuse. But what does “application” in principle to the
cases of national emergency mean? Whether a national emergency is
“unprovoked” or not, whether, for example, the war waged is a “war of
aggression” can obviously be of no importance in this connection. The
existence of the emergency only is decisive. The vital interests of the
commonwealth and the state are substituted for the limitation of
individual interests. Summarizing, we can define the so-called national
emergency as an emergency involving the vital interests of the state and
the general public which cannot be eliminated in any other way. As far
as such emergency authorizes action, not only may a legal excuse be
assumed but a true ground for justification exists.
I shall examine later how far an erroneously assumed national emergency,
a so-called putative emergency, is possible and is to be considered as a
legal excuse. What consequences arise from this legal position in the
case of the defendant Karl Gebhardt?
1. As proved by the evidence the general situation in the various
theaters of war in the year 1942 was such that it brought about an
“actual”, that is, an immediately imminent danger to the vital interests
of the state as the belligerent power and to the individuals affected by
the war. The conditions on the eastern front in the winter of 1941-42 as
they have been repeatedly described during the submission of evidence
created a situation which endangered the existence of the state, through
the danger of wound infection and the threat to the survival of the
wounded and the fighting strength of the troops arising therefrom.
It must be added that the past World War was fought not only with man
and material but also with propaganda. In this connection I refer to the
statements of the defendant Gebhardt in the witness stand as far as they
concern information given to him by the Chief of Office V of the Reich
Security Main Office, SS Gruppenfuehrer Nebe. This information shows
that at that particular time the enemy tried to undermine the fighting
spirit of the German troops with pamphlets describing the organization
and material of the German Wehrmacht Medical Service as backward, while
on the other hand praising certain remedies of the Allied Forces, for
instance penicillin, as “secret miracle weapons”.
2. The assumption of a state of national emergency presupposes that the
action forming the subject of the indictment was taken in order to
remove the danger. By this is meant the objective purpose of the action,
not just the subjective purpose of the individual committing the action.
The question, therefore, is whether the sulfanilamide experiments were
an objectively adequate means of averting the danger. This, however,
does not mean that the preparations really were an adequate means of
expertly combatting the danger. According to the evidence there can be
no doubt that these assumptions really did exist.
3. Finally, there must not be “any different way” of eliminating the
national emergency. One must not misunderstand this requirement. Not
every different way, which could be pursued only by corresponding
violations, excludes an appeal to national emergency. The requirement
mentioned does not mean that the way of salvation pursued must
necessarily be the only one possible. Of course, if the different
possibilities of salvation constitute evils of different degrees, the
lesser one is to be chosen. It must also be assumed that a certain
proportion should be kept between the violation and the evil inherent in
the danger. In view of the fact, however, that in the present case many
tens of thousands of wounded persons were in danger of death, this
viewpoint does not present any difficulty here.
According to the evidence there can be no doubt that a better way could
not have been chosen. On the contrary, it has been shown that in
peacetime as well as in wartime everything was tried without success to
clarify the problem of the efficacy of sulfanilamides. And the fact,
too, that prisoners were chosen as experimental subjects who had been
sentenced to death and were destined for execution, and to whom the
prospect of pardon was held out and actually granted cannot be judged in
a negative sense. This fact cannot be used as an argument when examining
the legal viewpoint, because participation in these experiments meant
the only chance for the prisoners to escape imminent execution. In this
connection I refer to the explanations I have already given in
connection with the so-called probable consent.
_Excuse_
In addition to the general national emergency discussed, the literature
of international law recognizes also a special war emergency. According
to this, “in a state of self-defense and emergency, even such actions
are permitted which violate the laws of warfare and therefore
international law.” But in the sense of international law the “military
necessity of war” which by itself never justifies the violation of the
laws of warfare differs from self-defense and emergency. Emergency and
necessity of war, however, are different concepts. The emergency due to
which the self-preservation and the self-development of the threatened
nation are at stake justifies, according to general principles
recognized by the national laws of all civilized countries, the
violation of every international standard and thus also of the legal
principles of the laws of warfare. When applying the concepts of
self-defense and emergency as recognized by criminal and international
law, the illegality of violations committed is excluded if the nation
found itself in a situation which could not be relieved by any other
means.
In this connection the following must be pointed out:
I have already explained that the experimental subjects, on whom
the sulfanilamide experiments forming the subject of this case
were performed, came under German jurisdiction, even if one
holds the opinion that Poland’s case was not one of genuine
“debellatio” but only of “ocupatio bellica”.[3] However,
whatever opinion one might hold with regard to this question,
there can be no doubt that assuming an emergency according to
international law, the performance of the experiments would have
been justified even if at the time the experimental subjects had
still been citizens of an enemy nation. Decisive for the
regulation of the conditions of such persons according to
international law are the “Regulations Respecting the Laws and
Customs of War on Land” annexed to the Hague Convention, dated
18 October 1907. According to the above statements, however,
even a violation of such special conventions, as contained for
instance in the special prohibitions of Article 23, is justified
during a genuine war emergency. The fact that the special
conditions characterizing a real war emergency are existent
invalidates the objection that citizens of another country
should not have been used for the experiments.
_The Evaluation of Conflicting Rights and_
_Interests as Legal Excuse_
According to well-considered opinions, we must start from the premise
that the defendants, both in principle and in procedure, are to be tried
according to German criminal law. They lived under it during the period
in question and were subject thereto. For this reason I wish to approach
one more viewpoint which should be considered independently, and in
addition to the legal excuses already mentioned, when judging the
conduct of the defendants.
For many years the legal provisions for emergency cases have proved
inadequate. For a long time an endeavor was made to fill the gaps with
theoretical explanations of a general nature, and finally the Reich
Supreme Court handed down basic decisions expressly recognizing an
“extra legal emergency”. The considerations on which they were based are
known as the “objective principle of the evaluation of conflicting
rights and interests.” In the legal administration of the Reich Supreme
Court and in further discussions this principle, to be sure, is combined
with subjective considerations of courses of action taken by the
perpetrator in the line of duty. Therefore it is necessary to discuss
both considerations, that of evaluating conflicting rights and interests
and that of compulsion by duty together, even if we must and shall keep
them distinctly separated for the time being.
The consideration of an evaluation of conflicting rights and interests
as legal excuse is generally formulated as follows:
“Whoever violates or jeopardizes a legally protected right or
interest of lesser value in order to save thereby a legally
protected right or interest of greater value does not act in
violation of the law.”
The lesser value must yield to the greater one. The act, when regarded
from this point of view, is justified, its unlawfulness—and not merely
the guilt or the perpetrator—is cancelled out.
This so-called principle of evaluating conflicting rights and interests
is first of all a formal principle which establishes the precedence of
the more valuable right or interest as such. This formal evaluation
principle requires on its part a further material evaluation of the
rights or interests comparatively considered. This evaluation again
requires the adoption of the law and its purport to the general attitude
of a civilization and, finally, to the conception of law itself.
Let us examine the conclusions to be drawn from this legal situation in
our case: Agreement and so-called likely agreement, just as well as a
national emergency and a war emergency, constitute special legal
justifications, the recognition of which allows us to dispense with a
recourse to the general principle of evaluating conflicting rights and
interests. The latter retains its subsidiary importance. Furthermore,
those two special legal justifications refer in their purport to a fair
and equitable way of thinking as well as to the proportional importance
of various types of evils; thus they themselves include the conception
of evaluating conflicting rights and values. For this reason, among
others, the following must be explained in detail at this point:
A national emergency and a war emergency were unmistakably in existence
in 1942. Every day the lives of thousands of wounded were endangered
unless the threatening wound infection could be checked by the
application of proper remedies and the elimination of inadequate
remedies. The danger was “actual”. Immediate help had to be provided.
The “public interest” demanded the experimental clarification of this
question. The evidence has shown that the question could not be
clarified by experiments on animals or by the observation of incidental
wounds.
The last word on this question, however, is not said merely by reference
to the public interest. Opposed to the public interest are the
individual interests. The saying “necessity knows no law” cannot claim
unlimited validity. But just as little can the infringement on
individual interests in order to save others be considered as “contrary
to good morals”. The evidence has shown that the members of the
resistance movement of Camp Ravensbrueck who were condemned to death
could only escape imminent execution if they submitted to the
experiments which form the subject of this indictment. There is no need
to examine here and now whether the experimental subjects did give their
consent or whether they presumably would have consented, if, from their
personal point of view and in the full knowledge of the situation, they
could have made a decision within the meaning of an objective judicial
opinion based on probability. What really matters is the question of
whether after a just and fair evaluation of the interests of the general
public and the real interests of the experimental subjects, the
defendant could conclude that, all circumstances considered, the
execution of the experiments was justifiable. Without doubt this
question can be answered in the affirmative. Quite apart from the
interest of the state in the execution of the experiments, participation
in the experiments was in the real and well-considered interest of the
experimental subjects themselves, since this participation offered the
only possibility of saving their lives through an act of mercy.
* * * * *
_The Defendant’s Erroneous Assumption of an Emergency_
(_Putative Emergency_)
I have already mentioned the circumstances which justify the assumption
of a national emergency and a war emergency caused by the special
conditions prevailing in 1942. If these conditions actually prevailed,
the illegality of the act and not only the guilt of the perpetrator
would be excluded for reasons previously enumerated. If the defendant
had erroneously assumed circumstances which if they really had existed
would have justified a national emergency and a war emergency, then,
according to the general principles already mentioned, the intent of the
defendant and thus his guilt would also be eliminated in this respect.
The evidence, especially the defendant’s own statements on the witness
stand, leaves no doubt that, when the experiments began in 1942, he had
assumed the existence of such circumstances which were indeed the
starting point and motive for ordering and carrying out these
experiments.
* * * * *
_EXTRACT FROM THE FINAL PLEA FOR DEFENDANT
SIEVERS_[4]
* * * * *
May I remind you of the exciting part of my case in chief which dealt
with Sievers’ participation in the resistance against the National
Socialist government and administration. By putting forward his activity
in a resistance movement, the defendant Sievers does not endeavor to
obtain a mitigation of an eventual condemnation. In my opinion, this
activity must under all circumstances result in his acquittal, even
though, contrary to expectation the High Tribunal should tend towards
the opinion that Sievers had participated in the accused crimes.
In the first place it is my intention to discuss a series of legal
questions that have at all times been acknowledged in the criminal law
of all civilized nations. It is not by any means the task of the High
Tribunal to apply any special article of law, but, from general legal
and legal-philosophical principles, to lay down a rule finding and
creating a new law to meet a new situation. It need hardly be said that
first and foremost I am supporting my own client. But in your verdict,
you, your Honors, are not judging only this defendant. Beyond this
particular case your verdict has a far more extensive, general, nay,
world-wide importance. For it is the first time that a tribunal of such
importance is to decide upon the actions of a member of a resistance
movement. Consequently, your judgment is a fundamental one and a
signpost for our time for many, many other defendants and accused men in
this connection who have stood before this Tribunal or will be brought
before other courts. Your decision for all time extends to cover
thousands and thousands of men who, at some time, may be put in the
position of opposing some criminal system of government by similar means
as Sievers did. On this our globe there are still autocracies and
totalitarian dictatorships and it requires only little foresight to
realize that other dictatorships may involve other international
entanglements and wars of the most horrible nature. Furthermore, in the
future, mankind will again and again be in sore need of courageous men
who for the sake of their nation and for the welfare of mankind oppose
themselves to such dangerous doings. It is for such champions and for
such groups of champions that your verdict will be a criterion and a
signpost. You are deciding in advance the future possibilities and the
sphere of action of future resistance movements against criminal
governments and their chiefs. You are offered the opportunity of
checking such movements by your verdict. But you are also able to give
them the safety necessary for their dangerous enterprise and the success
of their proceedings. How and where would such helpers be found in
future if, apart from the immediate peril, they have to reckon with the
additional danger of being called to account by the very people for whom
they risked their lives? And therefore, your Honors, with your verdict
in the Sievers case you take upon you a responsibility before the whole
world and for all time to come, a responsibility as is seldom placed
upon a tribunal. But on the other hand you can also say with pride that
with this judgment you render an immeasurable service to the world in
its struggle for peace and justice.
Therefore the reasons for your verdict in the Sievers case are so
immensely important, far more important than the trifling Sievers case
can be in the universal history of all times. I am forced to detail the
particulars of these problems.
It goes without saying that the member of a resistance movement can only
refer to his resistance, if this resistance is lawful. This will not
always be the case; for, political crime and similar actions committed
for political motives are crimes and will remain such. He who removes a
political adversary only to take his position or to open the way for his
partisans acts unlawfully and is liable to punishment. The situation,
however, becomes different if not only a political discussion is
interrupted by murder, but where a tyrant whose government is inscribed
with bloody letters in the annals of mankind is at last felled to the
ground. In this case the perpetrator is supported by an acknowledged
excuse. This excuse is self-defense.
According to the German Penal Code, Article 53, an action is not
punishable if it is committed in self-defense. And self-defense is such
defense as is necessary to ward off from oneself or another person an
imminent unlawful attack.
These principles are, however, not only German legal stipulations. They
are legal values of all nations and all times. To a large extent they
tally with human sentiments and are termed “the great law of defense.”
They are already found in Roman law in the formulation “vim vi expellere
[repellere] licet”—force may be driven out by force—and have been
enthusiastically taken over by English common law and by American law,
as stated by Wharton, “Criminal Law”, paragraph 613. They authorize
every individual to ward off injury from himself or another person with
all necessary means at his command. From this point of view too the
struggle against a criminal government threatening the peace of the
world, preparing aggressive wars, ready without any purpose or need to
plunge the whole world into immeasurable misery from sheer striving for
power, from presumption and conceit; struggle and resistance against
such a government and such guidance are lawful and permissible, no
matter by what means they may be carried on. Since the end of the war
even, the opinion has been maintained more and more that such a struggle
is not only lawful and permissible but is even the duty of every
individual. Is not the collective guilt of the whole German nation
substantiated by the charge that it witnessed the doings of the Nazi
government without interfering at least with a secretly clenched fist in
its pocket? Murder and manslaughter, bodily injury and restriction of
liberty inflicted upon the potentates and responsible men of such a
system are acts of self-defense for the benefit of peace and mankind.
They are lawful and exempt from punishment; they are a duty if there is
no help possible in any other way.
From times immemorial this question concerning the lawfulness and duty
of committing political murder has engaged not only lawyers but also a
large number of poets and philosophers. Friedrich von Schiller justified
the murder committed on Gessler as the last desperate attempt to escape
slavery. Thus the juridical vindication of murdering a criminal tyrant
is paralleled by its high moral estimation.
But it may happen that not only the real assailants come to grief. He
who has to ward off an attack may be forced to implicate a third person
hitherto not involved. This case too is provided for in the German Penal
Code and is termed “necessity”. The regulation of Article 54 runs as
follows: “No punishable act has been committed when the
act—self-defense apart—was committed in an emergency, which could be
met in no other way, to escape a present danger to the life or body of
the perpetrator or a relative of his.”
The legal codes of all nations and all ages have been compelled to face
the problem of the conflict between two legal values which can only be
solved by hurting or even annihilating one of the two. Justice cannot
insist with utter consistency upon the individual respecting foreign
rights and sacrificing his own at all costs and under any circumstances.
A Frenchman says to this question: “Cette théorie est admirable pour des
saints et pour des héros, mais elle n’est point faite pour la vulgaire
humanité”—“This theory is admirable for saints and heroes, but it is
not for common humanity”—[Pradier—Fodéré, vol. I, page 367, Traité du
droit international public européen et américain.] “Quod non est licitum
in lege, necessitas facit licitum”—“What is not permitted by law,
necessity makes permissible”—[says the Roman law], and the French
lawyer Rossi says: “L’acte ne peut être excusable lorsque l’agent cède à
l’instinct de sa propre conservation, lorsqu’il se trouve en présence
d’un peril imminent, lorsqu’il s’agit de la vie.”—“The act can be
excused only when the perpetrator yields to the instinct of
self-preservation, when he finds himself faced with imminent danger,
when life itself is at stake.”—An old German legal proverb runs:
“Necessity knows no law.” Last but not least, American law deals with
this problem under the name “necessity” (_Wharton, “Criminal Law,” par.
642_), a literal translation of the German expression “Not”. So by
virtue of necessity a shipwrecked sailor may push his fellow-sufferer
from the board which is too small to save both of them. If applied to
resistance movements against criminal governments, these principles mean
that third persons hitherto unconcerned may also be involved, if there
is no other alternative, if “Not”, “necessitas”, “necessity” requires it
peremptorily and unavoidably.
You, your Honors, are called upon to bring the principles of
“self-defense” and of “necessity”, “this great law of defense” to their
common denominator, to apply them to the Sievers case and thus insert
them into the unwritten rules of the international relations of public
and political law. The Anglo-Saxon legal way of thinking and the
principles of natural law will give you valuable support in forming the
verdict.
Now I can turn to the specific case of Sievers.
In order to judge his actions the following questions are of a decisive
importance: Was there a German resistance movement at all? Did the
Hielscher group belong to this resistance movement? Was this group to be
taken seriously and what were its aims? Was Sievers a member of this
group and what were his tasks? What was his attitude in performing these
tasks? Were there also other possibilities for him? It has frequently
been maintained that there was no German resistance movement. But _the
German resistance existed_.
I must, however, confess that the question “Where was this resistance?”
readily suggests itself to such people as are not acquainted with the
internal conditions of Germany, above all during the war. I must also
grant the fact that scarcely more than Stauffenberg’s plot with its
staggering consequences came before the public.
He who puts such a question completely misjudges the conditions under
which the whole resistance movement had to work against the Nazi
Government. He forgets that up to the fatal date of 20 July 1944, he had
also no idea of the group round Stauffenberg. I am therefore all the
more forced to give a concise exposition of the situation which in the
Third Reich everybody opposing the Nazi Government had to face.
From the very beginning it was the aim of the authoritarian government
to get hold of every German man, every German woman, all children, and
old men in order to bring them up in the spirit of the new method of
government. The totalitarian striving for power did not stop short at
personal freedom. It removed professional and economic organizations,
cultural and social institutions, some of which were reestablished in
another form, subject to the control of the Nazi Government.
It was against this state of things that the struggle set in from the
very beginning. Nothing would be more wrong than to believe that this
struggle could be waged in the open street with large quantities of
propaganda material, display of physical force, with fire arms, bombs,
war, and rumors of war. Even in the trade unions, the most consistent
and resolute adversaries of the new government in 1933, such a method
was not possible. This government kept a tight rein over the whole
public apparatus controlling in an increasing degree the private spheres
through the organizations of the SD, Gestapo, etc. The ambiguous
stipulations of the law against malicious acts or insults to the state
and party (Heimtueckegesetz) made possible the imprisonment of people
even for accidental deprecatory remarks. Political discrimination and
the constant danger of being sent to a concentration camp were the
effects of many innocent remarks. No newspaper could have been found to
agitate against the oppressors. But if handbills were secretly
distributed the contents of which defamed the Nazi government, the whole
apparatus of the police, Gestapo, SD, etc., was set in motion. The
possession of weapons was considered circumstantial evidence of
treasonable enterprises and meant capital punishment for the imprudent.
It must be added that there was a widely extended spy system sticking to
everybody’s heels. One had even to guard oneself against one’s nearest
relations and children.
These few words concerning the internal situation of Germany were
necessary as an answer to the absurd question put in Stockholm to the
witness Hielscher: “Why did you not speak in the open market place
[publicly]?” (_Tr. p. 5935._)
The most obvious kind of opposition was offered by the two great
Christian churches. How much and how often were the antichrist and his
false prophets not preached against, how many clergymen of all
confessions were sent to prisons, penitentiaries, concentration camps,
nay, to death? It is true, the churches could venture forth more openly
than other people. For they did not intend to participate in a
_forcible_ removal of the system, in the killing of its leaders and
representatives, in the fight with arms. But the nonecclesiastical
resistance groups had realized that the Nazi dictatorship could not be
overthrown without violence; they were not subject to the
political-philosophical impediments and restrictions of the churches,
they could not throw off the mask until the day of action had dawned. Up
to that time they were condemned to be silent, they had to camouflage,
acting on the old principle of all conspirators: “Never speak of your
aim, but always think of it!” If they had forgotten this principle,
sooner or later unquestioningly they would have been betrayed by a spy
and liquidated by the Gestapo. They would never have got as far as
action. Did not the group round Stauffenberg act in this way too? Who
knew of its existence before the bomb burst in Hitler’s headquarters on
20 July 1944? The same was the case with all the other resistance groups
which unfortunately no longer had the possibility of acting and some of
which were traced and secretly killed in spite of this.
The fact that all of them existed is proved, however, by the small
number of publications: the pamphlets of Emil Henk, of Franklin L. Ford
and other authors, and Neuhaeusler’s book, “Cross and Swastika”.
But downright classical witnesses are the numerous bloody victims whom
the People’s Court of Justice [Volksgerichtshof] and the Gestapo had
sent to the concentration camps and to death.
One of these groups was the group around Hielscher, a member of which
was the defendant Sievers.
_There was a Hielscher group, it existed, it acted._ Hielscher himself
is an unimpeachable witness of this. In connection with 20 July 1944, he
was imprisoned for three months and was to be hanged. Hielscher’s
illegal activity is sworn to by many other no less trustworthy
witnesses. As the first of them I mention the political emigrant Dr.
Borkenau, who had been working against National Socialism at least since
1928. He had known Hielscher since 1928. He speaks of his hostility to
National Socialism, of a “sharp attitude”. At that time he frequently
negotiated and conspired with Hielscher, who set forth the methods of
his fight. During his emigration, Dr. Borkenau watched Hielscher’s
activity from abroad and again and again he heard: “Hielscher keeps on
fighting”. If we are told so by an emigrant, we may well believe it.
Another witness who never lost connection with Hielscher was Dr. Topf,
who himself was an active member of the resistance movement. He too
described Hielscher as a violent antagonist of National Socialism,
working and struggling unswervingly. I refer to the many affidavits
which I presented in this connection.
It does not speak against Hielscher’s oppositional activity that he did
not stand out more in public. For him too, camouflaging up to the moment
of decision was an imperative requirement, and Dr. Borkenau calls it a
downright masterpiece that he so eminently succeeded in doing so.
_Sievers was a member of the Hielscher group_
There cannot be the least doubt of this fact. Apart from all the
testimony, the whole personality of my client excluded any Nazi
attitude. His nature and his development necessarily made him a decisive
adversary of Hitler’s system of oppression, terror, and murder. Both his
origin and the interests of his youth brought him into contact with
people who kept aloof as much as possible from the Nazi way of thinking.
He was the son of a director of ecclesiastical music; he pursued
historical and religious studies. His nature led him to the Boy Scouts,
in short to such interests as National Socialism calumniated with all
its powers of ridicule and combated violently with stubborn dislike. All
those persons who either testified or in affidavits gave evidence about
his character describe him as follows: an upright man with lofty ideals
of deeply rooted humanity and a strong sense of law and justice. If you
combine this picture of Sievers painted by notorious anti-Fascists with
all the authenticated aid that Sievers bestowed on victims of Nazism, it
is only a small step to the conviction that Sievers was also a member of
a resistance movement.
Perhaps the prosecution may say: “I do not believe all these stories,
for both Hielscher and Sievers did not achieve anything.”
That would wrong Sievers to a high degree, your Honors! Other resistance
groups too had the misfortune that they had not more opportunity to act.
The witness Hielscher exposed very clearly the reasons why a standstill
was inevitable after the failure of the plot on 20 July 1944. As
Hielscher and his associates could no longer depend upon the army, they
were compelled to start again from the very beginning.
What were the intentions and the mission of the defendant Sievers within
the Hielscher group? Hielscher himself answers that. Sievers’ tasks were
of two kinds: (1) Gathering news from the immediate proximity of Himmler
as basis for the disposal of the resistance forces with regard to place,
time, and kind of action. (2) Sievers was not only a spy and a scout; at
the moment of action he was destined and ready to do away with Himmler.
These two tasks require a double legal examination: Were they in
themselves permissible, lawful, or even a duty? The answer to this
question is to be found in the principles which I evolved in the idea of
self-defense in the sphere of political struggle. What measures was he
allowed to take? To what extent could he venture to advance into the
domain of criminality? To what extent could he involve uninitiated third
persons in his plans, even actual victims of Nazism? The rules of
“necessity” lead the way for judging and solving this problem.
In taking up the first question I can be relatively brief. After all we
know today, it is an irrefutable fact that Hitler and his accomplices
terrorized the German Nation and the whole world in a criminal way and
with criminal means, that from the beginning they were an immediate
peril to peace and all civilization and that finally the worst
apprehensions turned to ghastly reality. Therefore the first
prerequisite for the defense of “necessity” is beyond all doubt a
present illegal attack on the highest goods of mankind. To put it in the
words of the German Penal Code that was the “necessity” (“not”) which
was to be warded off.
But we also know that this defense was not to be accomplished with the
normal means of a democratic parliamentary system. I described the truly
diabolical organization by which it had been rendered impossible to make
use of these means. Thence follows that the removal of Hitler and his
accomplices was the only possible expedient to break and smash this
system. Less hard and violent means were not available.
As a matter of course it follows that Hielscher’s plan to do away with
Himmler had become legal and compulsory for those in the position to
execute it. After the evidence of Hielscher and other trustworthy
witnesses, it cannot be denied that Sievers had been charged with this
task.
If it was justified to do away with Himmler, the accompanying and
preparing scouting-activity was justified too.
Before answering the question to what extent Sievers could involve third
persons, I have to sketch in a few lines the tactics of Hielscher and
the position of Sievers.
It was not in vain that Hielscher himself gave full particulars on this
question. We also heard other witnesses, Dr. Borkenau, Dr. Topf. Sievers
clearly outlined his tasks. All this evidence is in such unanimous
agreement that no doubt of its truth could arise.
Hielscher was one of the first and few people who realized that the way
to take measures against the system could be only from within the ranks
of the party itself. He had gained the firm conviction that a prospect
of success could be seen only by doing away with the heads of the Nazi
Government and assuming the government from the top and that nothing,
nothing at all, was to be anticipated from a revolution of the people
from below. A revolution of such a kind would have been of no avail, as
it would very quickly have been stifled in torrents of blood.
The knowledge of these facts required four groups of measures to be
taken, the particulars of which Hielscher detailed on 15 April:
Preparation of the undertaking by a well-camouflaged
organization of trusted men and spies within the ranks of the
NSDAP, i.e., the Trojan Horse policy.
Placing suitable courageous men in positions as near as possible
to leading personages of Nazism, the most dangerous of whom was
Himmler.
Doing away with Himmler and other leaders of the Nazi Government
upon a given cue.
Taking over the government by an organization prepared in
advance.
In spite of all liberty of action granted to the “activists” of his
group, Hielscher had realized that success could only be expected if
everybody, in strict discipline, obeyed his orders only. This was the
only way for him to hold the reins and to give the cue at the right
moment. Here I must emphasize that within the scope of this
indispensable discipline, Sievers in all details acted in complete
unison with Hielscher, that in all important moments he described the
real state of affairs and asked for his instructions. In this way
Hielscher obtained ample information of everything enacted around
Sievers and of what Sievers did himself. Sievers was nothing but the
tool in the hands of the leader of the movement. Therefore, your Honors,
your verdict affects Sievers’ commissioner, Hielscher, in just the same
way as Sievers himself. Hielscher is condemned together with Sievers, as
he is acquitted with Sievers. With the same courage of responsibility
with which he placed Sievers and other accomplices in most dangerous
positions, Hielscher could declare at the end of his evidence that he
not only took but also _claimed_ the whole responsibility for all the
deeds with which his follower Sievers would be charged as a result in
this trial.
Hielscher sketches the task of Sievers as follows: In the belly of the
Trojan horse, i.e., under the color of eager and enthusiastic
cooperation his duty would be (_a_) to scout and to spy, (_b_) profiting
by his influence, to place other persons in similar positions for the
same purposes, or in places where they would be given the possibility of
working undisturbed, (_c_) to back endangered members of the resistance
movement and if possible to rescue them, and finally (_d_) to do away
with Himmler at the moment of action.
This last item was the essential point of the task of my client. All the
other tasks were inferior to this aim and assignment, they only served
to prepare and support it. It is from this point of view that his whole
conduct must be understood and all his acts judged.
What did Sievers achieve in the sphere of this task?
I cannot reiterate all the details that I set forth in the first part of
my plea. I came to the conclusion that Sievers did not make himself
guilty of complicity or assistance in the facts charged in the
indictment. If, however, you suppose with the prosecution that Sievers
is to be found guilty of some of the counts of the indictment, it is my
task to justify this conduct before the forum of a concept of justice
transcending codified law, and to expound it to the Tribunal.
How did it come about that in 1942 Sievers remained in his position when
the Ahnenerbe came into contact with medical experiments which possibly
might assume a criminal character? We must not forget that Sievers was
assigned the removal of Himmler and that in the Hielscher group he was
the only person who could have been entrusted with such a task. Properly
speaking, in Hielscher’s group he had the key position; the success or
failure of the whole enterprise depended on him alone. For Himmler was
the most dangerous personality in the Nazi system, because in his
quality of Chief of the Police and Commander of the Reserve Army all the
internal political armed forces were concentrated in his hand.
Consequently he had the power of nipping in the bud every rebellion.
Himmler was able to rule without Hitler, whereas Hitler could not rule
without Himmler. The latter was to be done away with first. Should
Himmler be overlooked or should he somehow succeed in escaping, the
whole enterprise would be endangered. Himmler’s importance is therefore
the measure of the importance of Sievers, who had to be ready for the
decisive blow in Himmler’s immediate proximity. To ask if this post
could be abandoned is to answer it in the negative.
As Sievers was fully conscious of the importance of such a decision, he
became involved in the greatest internal conflict of his life. Of two
evils, the worse had to be avoided and the smaller to be endured, or
both of them to be shunned.
To do the latter would certainly have been the most convenient solution.
That Sievers got into this conflict amply demonstrates his consciousness
of responsibility, his love of justice and humanity. As to the struggle
with his soul, he certainly did not succeed in getting the better of
himself. Too many questions depended on his decision, not only for
himself but above all for the resistance movement as a whole. We must
try to look into the soul of a man, who, on the one hand, was exposed to
the pressure of an enormous aversion to the approaching threatening
events and, on the other hand, knew only too well that in his position
he could no longer fulfill his task if he obeyed his personal impulses.
Perhaps it would have been possible for Sievers to leave his office
without creating a great sensation and without considerable disadvantage
for himself. Could he not have retired to cooperate in some innocuous
scientific research? But in doing so Sievers would have been a runaway,
a deserter. In his agony of soul, Sievers applied to Hielscher who after
mature consideration and deliberation came to the decision: _Sievers
will stay!_
For the post in Himmler’s proximity could not be renounced. If Sievers
abandoned it, Hielscher would be under the necessity of entrusting him
with another position near Himmler or of replacing him by another member
of the movement with the same task. Was this possible? Would he,
remaining near Himmler, have not time and again come into the same
dilemma? Was it possible to wait and see? Could it be expected that
another man would be more successful? Would not Sievers, in spite of all
circumspection, have raised suspicion in substantiating his withdrawal?
For to do so openly and with protest would have been downright madness.
Imagine only the danger he would have conjured up for himself and his
associates! What could his withdrawal have availed? One more question:
if Sievers’ withdrawal could have prevented the human experiments at
all, that would have been only a partial success. For as to the aim in
its totality, the removal of Himmler and the Nazi Government, nothing
would have been gained but a further delay of the decision or the
impossibility of achieving it because of the loss of the key position.
As still more victims of the Nazi Government would have been the result,
a partial success had to be sacrificed in favor of the great aim.
If you try to answer these questions there cannot be the least doubt
that the decision Hielscher arrived at was the only possibility.
That brings me to the last, to the most important point of my defense,
to the question:
“How was Sievers to act in his position?”
Without any doubt, he was compelled to make certain concessions. He was
forced to camouflage, i.e., to accommodate himself outwardly to his
surroundings which he was going to spy on and to remove. Every spy has
to camouflage and I do not betray a secret in mentioning that in wartime
many a man donned the uniform of the enemy. It is generally known that
in 1942 the French General Giraud performed his escape from German
captivity in the uniform of a German general.
When Sievers was a member of the party from 1929 to 1931, when later on
he joined the NSDAP and the SS again, when he filled higher positions in
these organizations, when he held the position of Reich Manager of the
Ahnenerbe and suffered himself to be promoted to a higher rank in the
SS, without any doubt at all that was part of the camouflage measures
which Hielscher, Dr. Borkenau, Dr. Topf, and other witnesses call the
indispensable prerequisite, the compulsory mask for the tasks of the
defendant Sievers.
Nobody will pretend that these camouflages which were to render possible
a legally approved, nay, desirable aim, are in themselves punishable and
illegal. Sievers’ outward membership in the SS is therefore excused by
its camouflage purpose. And it is equally unobjectionable that
occasionally he played the part of a good Nazi. The duty of doing so had
expressly been urged upon him by Hielscher. The career of the organizer
or an active member of a German underground movement would have found a
sudden end if he had not behaved like a Nazi.
All the more seriously must I turn to the question of Sievers’ consent
to and further participation in the human experiments and the
establishment of the collection of skeletons, in which third persons
suffered bodily injury.
Here the question is raised where are the bounds of necessity if it
involves actions which in themselves are punishable facts. The answer to
this question is the essential point of the Sievers case.
The legal orders of the world set up the principle: “_The legal values
damaged by the action committed under necessity, must not be of a
disproportionally greater value than the protected and rescued legal
value._” That is the principle of proportion concerning which Wharton
[“Criminal Law”], paragraph 642, says, “Sacrifice of another’s life,
excusable when necessary to save one’s own.”
What were the competing legal values in the Sievers case?
On the one hand, there was the civilization of the world, the peace of
the earth, humanity, the lives and existence of millions of men
threatened and hurt by Hitler’s criminal government. Such actions are
called crimes against peace and humanity by the new international law
which threatens them with the severest punishments. The Allied Nations
considered these legal values worthy of their soldiers enthusiastically
going to war and death for them.
On the other hand, you will find the lives of individuals, their bodily
safety, the respect and esteem of their personality, their liberty and
the free expression of their will, certainly legal values of no less
high value. There may have been hundreds of victims. But it was a meager
number in comparison with the multitudes that Hitler, Himmler, and their
accomplices had already murdered and continued murdering.
My question runs: Which of the two contending legal values is more
valuable from the point of view of proportion?
I am far from excusing the ghastly crimes that happened in the
concentration camps or even minimizing them, but with all my abhorrence
for them I cannot help answering: The protection of civilization and
humanity deserves preference over the life and health of individuals,
deplorable as the inevitable sacrifices may be. So finally it was
necessary, absolutely requisite, to put up with the violation of the
less valuable legal values and to rescue the more precious, the whole.
Sievers’ remaining at his post in the Ahnenerbe was absolutely necessary
for the removal of Himmler.
Of course it would not be difficult to state _post festum_ that Sievers
could have acted differently, that he ought not have advanced thus far.
But up to now nobody has been able to tell us _how_ he should have
acted. Even the public prosecutor did not try to make a concrete
proposal.
* * * * *
_EXTRACT FROM THE FINAL PLEA FOR DEFENDANT
HOVEN_[5]
* * * * *
In two further parts of my closing brief I dealt with the killings which
Dr. Hoven either undertook himself or which were undertaken with his
knowledge.
In part (b) of the closing brief, I stated that these killings had no
connection with the euthanasia plan.
I further stated that it can be considered proved that Dr. Hoven killed
only two prisoners himself, and that about 50 or 60 prisoners were
killed by order of those responsible for the German and foreign
political prisoners with the knowledge of Dr. Hoven.
I have set forth a legal evaluation of these killings in a further
paragraph under (e) of the closing brief.
The legal arguments as set forth in the closing brief are taken from the
work of the well-known American criminologist Wharton, _Criminal Law_.
The first part of this argument contains, under (e), the literal
quotations from this book.
According to common law, the killing of a man can be either murder,
manslaughter, excusable homicide, or justifiable homicide. Excusable
homicide and justifiable homicide are not punishable.
The present American law does not differentiate between justifiable
homicide and excusable homicide. I refer to my closing brief,
particularly to the statements of Wharton in his book _Criminal Law_,
12th edition, volume I, 1932, pages 826 to 879. According to Wharton,
excuse and justification for a homicide are either repulsion of
felonious assault, or prevention of felony.
The right of self-defense, i.e., repulsion of felonious assault, is
restricted to a narrowly defined number of persons.
On the other hand, everybody is entitled to prevent a crime. I refer to
the details contained in my legal arguments of my closing brief.
Killing a man to prevent a felonious crime requires the following
conditions which are set forth in my closing brief:
(1) The perpetrator must have the bona fide belief that the
commission of a felonious crime is immediately impending. It is
not a condition that such a crime would actually have been
committed. The bona fide belief of the accused is quite
sufficient. In this connection I refer to the legal arguments of
the closing brief.
(2) This belief of the accused must not be negligently adopted.
(3) There must not be any other possibility of preventing a
crime than the killing of a person. In other words—the killing
must be the only means available to prevent the crime.
The prosecution’s assertion in its final plea, “One must not kill five
to save five hundred”, therefore, cannot be considered generally valid
either from the point of view of German or American law.
On the basis of the statements of the prosecution, I have not been able
to see clearly whether that sentence had reference only to the
justification of experiments on human beings or else to the killings
which were carried out by Dr. Hoven or with his knowledge.
The justification of the killings is materially distinguished from that
of the experiments. Those spies, stool-pigeons, and traitors, for whose
killing Dr. Hoven accepted responsibility when in the witness stand, had
planned to commit serious crimes against their fellow prisoners.
Therefore, if the three prerequisites which I mentioned are given, we
are concerned with cases of justifiable or excusable homicide.
In my closing brief, I elaborately explained that these conditions
existed in the case of all the killings for which Dr. Hoven accepted the
responsibility.
The defendant Dr. Hoven had the conviction and good faith that the spies
and traitors, who were killed by him or with his knowledge, were about
to commit serious crimes, resulting in the death of numerous inmates of
the Buchenwald concentration camp. During his examination on the witness
stand, Dr. Hoven gave a thorough description of this.
The decision on these killings was not reached by Dr. Hoven alone. Dr.
Hoven had no cause for that. It was not his life that was endangered by
those spies or traitors. It was, on the contrary, the committee of
political German and foreign prisoners, many of whom are today holding
high office in their countries. Those persons guaranteed to Dr. Hoven
that only such individuals would be killed who already had been active
and would continue to be active as spies and as traitors. These
statements by Dr. Hoven were expressly confirmed by a number of
witnesses who were heard on this subject. These observations may be
found in the affidavits I submitted. Above all it has been proven that
only such people of whom Dr. Hoven held that conviction were done away
with. Dr. Hoven testified to that effect and it has been reaffirmed by
the witnesses Dorn, Dr. Kogon, Seegers, and Hummel.
In his interrogation of 23 October 1946, Dr. Hoven stated expressly that
he killed or knew only of the killings of such persons of whom he was
certain that their deaths were necessary to save the lives of a
multitude of political prisoners from the various countries. At that
early date he expressly emphasized that he refused to carry out any of
the killing orders of the Camp Commander Koch; the prisoners who were
covered by these orders were put into the hospital or hidden in some
other way by Dr. Hoven.
Dr. Hoven had not negligently adopted the conviction that their killing
was essential for the salvation of huge numbers of prisoners.
This is proved first of all by the testimony of the witness Dorn, who
gave many details as to the means and methods employed by Dr. Hoven and
the illegal camp administration in becoming convinced of the necessity
for the killings. Dr. Hoven supplemented those statements. Furthermore,
they were corroborated by the testimony of the witnesses Hummell, Dr.
Kogon, Seegers, Philipp Dirk, Baron von Pallandt, and van Eerde through
their affidavits.
Actually, the prevention of the planned crimes, i.e., the mass murder of
a multitude of German and foreign political prisoners, could be
accomplished only through the killing of the spies and traitors. There
was no other means. What should Dr. Hoven have done to prevent the
crimes planned by the spies and traitors? Those spies collaborated with
the SS camp commanders to carry out Himmler’s program to destroy the
political prisoners. To whom should Dr. Hoven have turned? Perhaps to
the SS camp commanders who worked with the spies and traitors? Or
perhaps to the Gestapo or to the police who worked under Himmler’s
orders?
There was no other way but the one which Dr. Hoven chose in order to
prevent crimes. I showed that with details in my closing brief. There I
assembled the testimony of the witnesses for the prosecution and defense
who were heard on this point.
Here, I merely wish to stress the following statements by witnesses:
In this courtroom, Dr. Kogon, a convinced Christian and a deeply
religious man, said: “There was really no other possibility for the men
of the illegal camp administration. I, as a convinced Christian, do not
deny those men the right to have killed people in an emergency who in
collaboration with the SS endangered the lives of individuals or of
many.”
The witness Pieck stated: “It may be that the liquidation of many
political prisoners and of SS spies employed in the camp may make Dr.
Hoven a murderer in the eyes of many; yet, for me and others who
understood the real situation he was a soldier fighting on our side and
risking a great deal.”
Pieck expressed the same opinion also in a letter to the Dutch Ministry
of Justice, a letter that was co-signed by the City Council of Amsterdam
and Mr. Droering, head of a department of the State Institute for War
Documentation in The Hague.
Pieck is one of the few who is best equipped to answer these questions,
for he belonged to the committee of German and foreign political
prisoners which formed itself at Buchenwald.
Father Katjetan, presently Supreme Abbot of one of the largest religious
orders in Czechoslovakia, a former prisoner of the concentration camp
Buchenwald, declared, in the presence of witness Dr. Horn, that those
killings were an inevitable necessity for the preservation of the
inmates who had been abandoned by justice in the camp.
Even the prosecution witness Roemhild had to admit on the stand that it
would have been impossible to save 20,000 prisoners if those spies or
traitors whom Dr. Hoven killed or of whose killing he knew had remained
alive.
Let me ask in this connection: What would have happened if a man of
Kushnir Kushnarev’s caliber had not been killed, and if the murder of
the Russian prisoners of war in the Buchenwald camp had been continued?
Would Dr. Hoven not stand before this Tribunal even then? Then, would
not the same charge be made against Dr. Hoven as the one levelled
against the Japanese Governor of the Philippines who was tried before an
American Military Court for not having prevented atrocities and abuses?
* * * * *
d. Evidence
_Testimony_
Page
Extract from the testimony of defendant Karl Brandt 29
Extracts from the testimony of defense witness Dr. Friedrich 30
Hielscher
Extract from the testimony of prosecution expert witness Dr. 42
Andrew C. Ivy
EXTRACT FROM THE TESTIMONY OF DEFENDANT KARL BRANDT[6]
_EXAMINATION_
* * * * *
JUDGE SEBRING: Witness, this question of the necessity for an
experiment, is it your view that it is for the state to determine the
extreme necessity for such an experiment and that thereafter those who
serve the state are to be bound by that procedure? I think you can
answer that “yes” or “no”.
DEFENDANT KARL BRANDT: This trial shows that it will be the task of the
state under all circumstances basically to clarify this question for the
future.
Q. Witness, as I understood your statements a moment ago, they were that
the physician, having once become the soldier, thereafter must
subordinate such medical-ethical views as he may have when they are in
conflict with a military order from higher authority, is that true?
A. I didn’t want to express it in that form. I did not mean to say that
the physician, the moment he becomes a medical officer, should change
his basic attitude as a physician. Such an order can in the very same
way be addressed to a physician who is not a soldier. I was referring to
the entire situation as it prevailed with us in Germany during the time
of an authoritarian leadership. This authoritarian leadership interfered
with the personality and the personal feelings of the human being. The
moment an individuality is absorbed into the concept of a collective
body, every demand which is put to that individuality has to be absorbed
into the concept of a collective system. Therefore, the demands of
society are placed above every individual human being as an entity, and
this entity, the human being, is completely used in the interests of
that society.
The difficult thing, and something which is hard to understand
basically, is that during our entire period, and Dr. Leibbrandt referred
to that, everything was done in the interests of humanity so that the
individual person had no meaning whatsoever, and the farther the war
progressed, the stronger did this principal thought appear. This was
designated in the end as “total war,” and in accordance with that, the
leaders of the state gave orders quite generally and demanded that
orders be carried out. It was very tragic for a number of persons, not
only within the framework of these experiments, but also in other
situations that they had to work under such orders. Without considering
the entire situation as it prevailed in Germany, one cannot understand
the question of these particular experiments at all.
* * * * *
EXTRACTS FROM THE TESTIMONY OF DEFENSE WITNESS
DR. FRIEDRICH HIELSCHER[7]
_DIRECT EXAMINATION_
DR. WEISGERBER: Witness, your name is Friedrich Hielscher?
WITNESS HIELSCHER: Friedrich Hielscher.
Q. You were born on 31 May 1902 in Plauen, and you are now living in
Marburg, that is right?
A. Yes.
Q. What is your profession?
A. I am a scholar.
Q. And since when have you taken an active part in politics?
A. Since 1927.
Q. Did you belong to a definite political ideology?
A. No. I had a group of students to whom I expounded my historical and
philosophical theories and ideas.
Q. How did it happen that you became an opponent of the NSDAP so early?
A. From the information available to me I knew the personal inferiority
of the National Socialist leaders. I could observe that they were
constantly lying and that what they really wanted was undesirable.
Q. Did you believe, as early as 1928, that the NSDAP would come to
power?
A. No, not in 1928. In 1930, after the first election battle at which
the Party was victorious, I considered it possible. In 1931 I considered
it probable. In 1932 I felt that it was certain.
Q. Did you join any definite political party with the intention of
combating the NSDAP?
A. No. I considered it impossible for any of the 33 German parties, with
their bureaucratic methods, to be able to prevent a fascist
dictatorship, or if it had come into existence, to overthrow it.
Q. What methods did you think were the right ones?
A. The fascist dictatorship is a mass machine in a technical age.
Therefore it seemed to us to be out of the question, when confronting
such a mass body, to act openly. It seemed impossible to carry out
propaganda publicly. We were convinced that the only thing possible was
to form very small cadres which would not be recognizable to an outsider
and which at the proper time could be employed for a coup d’etat.
Q. Then that was more or less the method of the Trojan Horse?
A. Yes.
Q. Were you, in your ideas and in your efforts to combat this movement
alone or did you have associates?
A. First, a selected group of my students were willing to collaborate in
this illegal work; second, I knew quite a number of personages of
various political backgrounds with whom I agreed that this regime would
not last.
Q. That was before 1933?
A. That was around 1933—1932-33.
Q. Now came the 30th of January 1933, the so-called seizure of power,
and now your real work began. How and when did you apply your method of
the Trojan Horse?
A. This group of my students, who were willing to collaborate, I made
into an illegal organization, with dues, secrecy, and other necessary
conditions, and I appointed people who were willing and suitable to get
into important Party positions.
Q. When and how did you meet the defendant Wolfram Sievers?
A. As far as I can recall, I met Sievers about 1929, on one of my
historical-philosophical lecture trips. He was a Boy Scout at that time.
He spoke up during the discussion and we took a liking to each other.
Q. Did Sievers show at that time that he was opposed to the NSDAP?
A. That was a matter of course with the people with whom I had anything
to do at all.
Q. And did you consider him suitable to work in your circle?
A. Yes.
Q. In 1929 Sievers joined the NSDAP. Was that done with your knowledge?
A. Yes.
Q. Did you advise him to do so or how did it come about? There had to be
some special reason, since you were both opponents of this political
party.
A. That was the first time, aside from 1923, when the NSDAP was talked
about, and it was useful to know what was going on in this growing
machine—were there any people of good will within the machine, what
were the leaders doing, what plans were being made, what organization
was being set up.
Q. Then first of all you wanted to find out what intentions the NSDAP
had?
A. Yes, and specifically in the youth work, because that had to be the
most important in the long run.
Q. Now, in 1931 Sievers resigned from the NSDAP again; did he do that
with your knowledge?
A. Yes.
Q. On your orders?
A. Yes, one might say that. We discussed it, and I considered it the
thing to do.
Q. Now, why should he suddenly leave the Party since he had been sent
into the Party with the definite purpose of getting information?
A. He had found out what he was to find out, the nature and the make-up,
especially of the youth organization. It was just as inferior as we had
thought, and even at that time it was so corrupt that without any
further plan—and we had no plan at the time—without any further plan
it was not necessary to have him continue.
Q. Now, in the year 1933, Sievers, as the Tribunal has already been
told, again joined the NSDAP; was this also done on your behalf?
A. Yes. At that time we were already a thoroughly organized
organization. We were already asking for volunteers, who were willing
and who were capable of working up in the sense of the Trojan Horse.
Sievers seemed suitable, and he was willing.
Q. Were you able to get him any position within the Party?
A. No. I was not able to help him to obtain any position, and in the
second place I had no intention of telling the individual persons whom I
trusted, in detail, what they were to do.
Q. Then it was up to the skill of the individual to get into a position
from which he would be able to carry out the assignment which you gave
him?
A. Yes.
Q. And how did Sievers obtain this position?
A. He got into this with Hermann Wirth in the Ahnenerbe.
Q. Who was Hermann Wirth?
A. Hermann Wirth was a rather crazy student of pre-history, who had
excellent material and terrible concepts.
Q. Was Wirth already in contact with the Ahnenerbe at that time?
A. As far as I know he was one of the founders.
Q. Then, as you say, Sievers got in contact with Wirth, and through
Wirth he got into the Ahnenerbe?
A. Yes. He was there from 1935 on as Reich Business Manager.
Q. Now, did you give Sievers any specific assignment in the spirit of
your movement?
A. As soon as it was clear that there was a possibility of exploiting
Himmler’s racial romancing and half-education, the assignment developed
to gain Himmler’s confidence with the aid of the Ahnenerbe and to get as
close to him as possible. We, that is my group, were among the people
who very early recognized the special personal danger of Himmler, and in
the second place from the beginning we had been determined that one day
we would have to overthrow the Party regime by force, and for that
purpose one has to get as close as possible to the most dangerous man.
Q. And what were the duties which Sievers had this time? When he first
belonged to the NSDAP, you said he was to get information about the
intentions of the youth movement of the NSDAP.
A. This time, of course, he had to get as many details as he could from
the office of the Reich Leader SS, and transmit them to us. We had to
protect people. We had to build up camouflage positions. We had to help
the other people and in turn to remain unrecognized.
Q. And how did Sievers carry out these duties?
A. Well, it will be best if I begin with myself. I myself was known and
considered undesirable by the Party leadership.
Q. You mean the NSDAP?
A. Well, yes, of course. The Party leaders knew me and considered me
undesirable. I had already been under arrest and had had my house
searched. I was watched by the Gestapo, and in order to build up my
organization I needed to be able to travel anywhere without arousing
suspicion. Consequently, Sievers gave me a fake research assignment,
which was to study Indo-Germanic culture, customs of the annual
festivals.
Q. Sievers said during direct examination that he himself could not
issue any research assignments; you said that you received a fake
research assignment from him; wasn’t this research assignment actually
issued by the curator, Professor Wuest?
A. Yes. If things were going well, and Wuest was in a good mood, or had
been drinking with Sievers, it was possible to persuade him to do
something, and so he succeeded in persuading Wuest that I was efficient
for this research assignment, and so I was given this assignment. And
what concerned Indo-Germanic customs could be found anywhere. I was
given a false pass as a section chief, though I was not a section chief,
and was not a member of the SS nor the Ahnenerbe.
Q. And with this pass you were able easily to get visas to go abroad?
A. Not necessarily. I needed a little more for that purpose, but it was
easier.
Q. Then the actual purpose of this fake research assignment was that
you, who were a suspect, might appear in a more harmless light and would
be able to move rather freely and without supervision?
A. Yes.
* * * * *
Q. What did Sievers do in order to further the activities of your
organization?
A. For instance, he took care of supplying all information which was of
importance. He told us what troops of the Waffen SS were in Germany
during the war. He gave us fake official trips and he worked out a plan
for an assassination, which was to be carried through by our group in
case the generals’ plan did not come off. We all thought it was not safe
to rely on the generals. In March 1944, Werner Haften told me by order
of Stauffenberg that one would have to take into account the fact that
the generals would have to be moved into action by a certain
assassination and everyone was to make his own preparations, in case he
had any, in such a manner as if he was the only one active. That was the
situation in March 1944. We worked out a substantial plan to remove, if
possible, Himmler and Hitler simultaneously, but in case of doubt
Himmler himself. We were of a completely different opinion there than
the other groups.
Q. What concrete preliminary work was done for the assassination in your
group?
A. Sievers was the only one in our group who came into question
regarding that assassination because he was the only one so close to
Himmler. He was therefore assigned this task and we worked out this
matter as far as the detailed plan was concerned; all that was necessary
now was to press the button.
Q. And for what period of time was this assassination intended?
A. We started our preparations in the year 1943, and we could have
started at the earliest at the end of 1943. Then we finally thought of
the middle of 1944 because Schulenburg and Luening told me that the
generals would be ready around that time.
Q. Well, an assassination is a matter for quick decision. Is it not
true, therefore, that all these long preparations that you are telling
us about are rather surprising?
A. The following would have to be taken into consideration: Around
Himmler and Hitler there was a strong guard, a strong ring of guards,
through which none could get unless he was carefully searched and
checked. Secondly, and that I already emphasized, one did not have to be
quite sure that the generals would carry out that assassination, but one
had to be sure that a sufficient number of generals were ready to remove
the National Socialist system immediately after the assassination, for
the elimination of just these two people would have no political purpose
whatsoever. We did not intend to carry out a Putsch but we intended to
remove a political system, a political order, and for that reason we had
to wait until the situation became right and the generals were ready.
Q. Now, the question crops up whether these plans for the assassination
of Hitler and Himmler were only in your fantasy, or the fantasy of your
collaborators, or was there any real basis or concrete preparation for
such assassination?
A. I already said that the preparations had been worked out in the
detailed technical points insofar as the location, the shooting, etc.,
were concerned.
Q. And who would have assassinated Himmler and Hitler?
A. Sievers was to do that and a few young men belonging to my
organization.
Q. And why was it in effect not carried out?
A. After the Stauffenberg assassination had failed, the Wehrmacht
circles that came into question were eliminated by Himmler and therefore
it was no longer possible to remove that system. The only consequence of
any attempted assassination would have been—since the foreign political
situation would not have changed—that the people would have said again,
“This is the stab in the back for the victorious front line.”
Q. What did Sievers do to further your activity in addition to what you
have already said?
A. He, for instance, supported my representative, Arnold Deutelmoser,
when he was put on the list of those who were to be removed under the
pretext of the assassination which took place in Munich at the
Buergerbraeu. He also protected Bomas who was working in the
Netherlands. He protected Dr. Schuettelkopf whom we had sent into the
RSHA and it was possible for him in turn to send me to Sweden. He saved
Niels Bor, Professor Seyb of Oslo University, and he saved a number of
Norwegian students, etc.
Q. Do you know that Sievers informed you about Himmler’s double play in
the case of the minister Popitz, and that as a consequence he saved that
entire group against measures by Himmler?
A. Yes. The following thing happened. One day Sievers approached me and
said that he had just heard Himmler ridicule in a close circle an
attempt on the part of Popitz. He said that Minister Popitz with the
mediation of the lawyer Lampe had approached Himmler and tried to
persuade him to bring about a change of the National Socialist system,
perhaps by removing Hitler. He said Himmler thought it was very funny
that these men had so little sense as to think of him in that
connection. Thank God one could enter negotiations with them because
certainly nobody in the country was behind these people, but it did seem
that these gentlemen had many foreign political relationships and it
would be advisable to find out what in effect was behind it all and to
enter into negotiations with them. We were quite surprised about the
naive attitude shown by Himmler, and I sent Deutelmoser to Reichwein
whom I knew had connections with Popitz. In that way Popitz was warned.
Reichwein was so surprised and hardly wanted to believe the situation.
I was asked to participate in a conference, and Reichwein after having
convinced himself that all of this was true promised to warn all of the
gentlemen concerned in Berlin and then asked Deutelmoser, who was to go
to Norway shortly thereafter to notify Reichwein’s friend, Stelzer, the
present Minister President of Schleswig-Holstein, in order to see that
he, too, took the necessary precautionary measures. In this way we hoped
that a number of these people had actually been saved. Popitz, however,
himself was careless and was captured.
Q. This conspiracy could not have been carried out unless you had the
necessary financial means at your disposal. How did you get these means?
A. Everyone of our people, be it man or woman, had agreed to give up ten
percent of their monthly income for that illegal work. Many gave a
substantially larger sum.
Q. How about Sievers?
A. Sievers gave more than he had to.
Q. Do you know the case of the three hundred Norwegian students who on
the basis of Sievers’ intervention were released from the concentration
camp Buchenwald?
A. Yes. Terboven, or some other official in Norway, disliked some
demonstration which occurred there, and as a result arrested three
hundred students. Through some dark channels they were brought into the
concentration camp at Buchenwald. Sievers found out about that, and if I
remember correctly, he was in a position to see to it that these
students were released from the concentration camp, making use of
Himmler’s Nordic ideas to this end.
Q. In that case you think that Sievers’ activity was substantially
important for your resistance movement?
A. Yes. That was true of my organization, for he protected and covered
me as its chief, and, secondly, as far as I know, he was the only man
belonging to any resistance movement who was as close as he to the Reich
Leader SS. If any other group had brought any such information as he
did, I would have noticed that it could have only come from the same
source.
Q. Witness, I shall have a document handed to you which was submitted by
the prosecution. This is Document NO-975, Prosecution Exhibit 479. It is
a letter sent by Sievers to Dr. Hirt. Would you please look at that
letter?
A. Yes.
Q. This letter contains a tone of voice which seems to indicate that he
tried to cover Dr. Hirt’s activity. Dr. Hirt was working in the
Anatomical Institute of the Strasbourg University. I assume, for reasons
which we shall mention later, that you know Hirt’s name. How do you
explain that tone in this letter?
A. I think that this is very proper and praiseworthy. I would have
thought it very foolish of Sievers if he adopted any other tone in any
of his official correspondence. It was his task to say “yes” but act in
a negative way. There couldn’t have appeared any pretense of any
disapproval on his part. The more active one had to be in an
anti-National Socialist way, the more one had to speak in favor of
National Socialism.
Q. I shall now turn to another complex of questions. Sievers is indicted
in this trial as having participated in a number of crimes. Did Sievers
at any time tell you about the so-called research assignments of Dr.
Rascher and Dr. Hirt who was just mentioned? These were experiments
carried out in the concentration camps.
A. Sievers, as far as I remember, came to me in the year 1942 and told
me very excitedly that Himmler in his desire to extend the Ahnenerbe
Society had embarked on the thought of including experiments on human
beings in the work of the Ahnenerbe Society. He said that he did not
succeed in frustrating that. He said that he had no desire whatsoever to
participate in these horrible acts and asked me what to do. At that time
we considered this horrible situation very thoroughly and thought of
what we could do. It was quite clear to us what the SS intended here,
and it was questionable whether responsibility could be assumed for any
such acts, whether it would be advisable to be the instrument of Himmler
if he embarked on any such acts, measures where human beings were
degraded to the level of insects.
The following considerations proved to be decisive for us: If Sievers
left, not one person, not one subject in these experiments would be
saved. If Sievers stayed there as a technical secretary, he could throw
sand into that machinery and would, perhaps, be in a position to save
somebody. In addition, the entire plan and the entire overthrow of the
Party stood or fell with Sievers staying at his post. The experiments on
human beings were only part of this horrible Party system, and one had
to concentrate on the decisive points in order finally to remove
everything, and, as I have said before, there was no other way into the
staff of the Reich Leader SS. We therefore concluded that if Sievers
resigned because of that, it was sure that he would be eliminated and
probably all the people he had ever entrusted with a research
assignment, and everything that we had done so far would be lost if he
left, and if anyone was to be saved at all, he could only be saved by
Sievers remaining at his post.
Q. If I have understood you correctly, Sievers at first wanted to resign
from his position as Reich Business Manager of the Ahnenerbe?
A. Yes. That is correct.
Q. Did Sievers approve of these arguments which you and your friends put
forward in favor of his staying with the Reich Leader SS as the Reich
Business Manager of the Ahnenerbe? Did he do it immediately or only
after trying to persuade him for some time?
A. This took a number of days, because Sievers, according to his nature,
was softer than many of us and did not want to agree with us. We finally
had to appeal to his sense of duty and persuade him that he had to do it
and that it was the only way.
Q. Among other matters, it was considered that by Sievers remaining at
his post, there would be a possibility of mitigating these horrible
experiments?
A. The chance wasn’t very great but we were convinced that this would be
the only way possible, if at all. Then it could only be done in that
manner. If I may say so, this was such a horrible situation that we
always had to come back to it and we were very lucky at least to have
the hope of saving a number of people. Other opponents of the SS system
have told me about similar dilemmas which were just as difficult, and
where the alternative was yet more horrible, and where persons,
according to my belief and knowledge, acted correctly. If the Tribunal
would permit me I could relate a few almost incredible situations which
were even worse.
PRESIDING JUDGE BEALS: In what connection are these narrations, Witness?
WITNESS HIELSCHER: In connection with the question as to whether it was
morally justifiable to enable Sievers to remain at his post.
PRESIDING JUDGE BEALS: Such matters as that would not be material in
this inquiry.
* * * * *
_CROSS-EXAMINATION_
* * * * *
MR. HARDY: Now, what did Sievers ever tell you about the Sievers-Hirt
skeleton collection? Did he ever tell you about that?
WITNESS HIELSCHER: Yes. He told me that Himmler had ordered—as far as I
know, it was in connection with Jewish commissars who were under this
terrible execution order which was valid in the East—that some of them
were to be selected and used for the skeleton collection. The order was
from Himmler, as Sievers reported to me.
Q. And did you know what they were going to do with these people?
A. Yes. It was the same as in the experiments. There a danger of death
was a possibility; here it was certain.
Q. You knew, of course, that they were going to stand these people up,
pick them out, select them according to size, take their anatomical
measurements, then ship them to Natzweiler and at Natzweiler kill them,
then deflesh them, then send the skeletons to the Strasbourg University
for collection? And you knew that?
A. Yes.
Q. A fine thing for a resistance man to be involved in, isn’t it?
A. The situation, as I have said repeatedly, was as follows: We made no
distinction in the real evaluation of the skeleton collection and other
experiments in which there was this so-called “volunteering” and in
which the result was the same—in our eyes, they were the same thing. I
should like to emphasize one more thing. Does one have the moral right
to tolerate a lesser evil in order to prevent a greater evil?
Q. Just a moment. Now in connection with the skeleton collection, do you
further know that they dispensed with the idea of taking Jewish
commissars but selected Jewish inmates of concentration camps?
A. Yes. What particular persons were selected I do not know, of course,
but I knew that a number of Jews were to be gassed and were selected for
this anthropological collection. That was the same case as in the Ghetto
of Lodz. The Jewish commander of the Ghetto—that was Lieutenant
Rosenblatt—after he had gained confidence in me because I had gone in
with a false pass, said personally to me: “I was picked out by the SS.
When a new group of Jews comes into this Ghetto of Lodz and crowds the
Ghetto, I have to select exactly the same number of Jews and I know that
they will be gassed. That is, I was selected by the SS to determine who
is to be gassed. Now, I ask you in the name of God, Mr. Hielscher, you
are a Christian, what am I to do? I had nothing to do with that. I have
asked the Rabbis. I have asked the old people themselves, and we have
come to the conclusion that I must stay in this office. At least I can
determine the persons—I can at least select the oldest people who can’t
stand life in a ghetto and perhaps, in this way, perhaps I will be able
to save the life of one person. These two old people that I am telling
you about were about seventy years old. There were five Christians among
the Jews. At least I was able to see that these two old people were
gassed together. They asked me to tell their daughter that we were able
to achieve at least that. Tell me, did I do right or not?” That is still
more horrible because the man could not even reduce the number. I was
ashamed that the people who were in charge of this camp were called
Germans. But I said: “You have acted right and you are justified in the
eyes of God.”
Q. Now, Dr. Hielscher, I assume that the defense counsel has shown you
all the documents concerning the skeleton collection. Is that right?
A. Yes.
Q. There won’t be any need for me to go over them. You have stated in
connection with the one document that was presented to you today on the
stand that this was a very praiseworthy act on the part of Sievers in a
negative way. Since you are familiar with all the skeleton collection
documents—I had intended to go into each one but I will just go into
that one. That is Document NO-088, Prosecution Exhibit 182. This is a
document which was written by Sievers. You will see that his signature
appears thereon. Do you recognize the signature at the bottom of the
letter?
A. Yes.
Q. Well, Sievers here is proposing a way in which they can destroy the
skeleton collection so that it will not be known to any one—that is, to
the Allies when they overrun Strasbourg. And you will notice, two-thirds
of the way through, the one paragraph that states: “The viscera could be
declared as remnants of corpses apparently left in the anatomical
institute by the French.” You see that?
A. Yes.
Q. “In order to be cremated.” Now this is an idea of one Wolfram
Sievers, wherein he is suggesting that these, or the results of these
criminal activities be left so that they may, by the Allies, be blamed
on to the French, and bearing in mind, of course that the French, as
well as the United States, Great Britain, and other Allies were equally
as interested as the resistance movements in defeating the Nazi regime,
were they not?
A. I have already said that it was Sievers’ duty to say “yes” and to act
negatively, but, of course, I did not praise this action, but I praised
the vocabulary, the formulation. He spoke like a Nazi. The concrete
question in such a case was simply as follows: Can anyone be saved here
or not? If no one can be saved, what can I do to keep up the appearance
of a Nazi since I know that Obersturmbannfuehrer Neuhaus suspects that I
have some contact with the resistance movement? Sievers, since the 20th
of July, or rather since my arrest, was constantly seeing to it that his
actions looked like Nazi actions, insofar as no one was actually killed;
that was part of his duty, part of the mask without which the
organization could not operate.
Q. Yes. But from this letter does it not suggest that he was willing to
allow an innocent Frenchman to answer for the crimes which flowed out of
this skeleton collection activity?
A. If you show me—
Q. I have asked you—does it not appear from this letter, this letter
signed by Sievers, that he was willing to allow a Frenchman to suffer
for the crimes committed during the course of the collection of these
skeletons?
A. Yes. The letter quite deliberately, I believe, creates this
impression. That was the purpose of it, like all such letters.
* * * * *
EXTRACT FROM THE TESTIMONY OF PROSECUTION EXPERT WITNESS
DR. ANDREW C. IVY[8]
_CROSS-EXAMINATION_
* * * * *
DR. SERVATIUS: Witness, take the following case. You are in a city in
which the plague is raging. You, as a doctor, have a drug that you could
use to combat the plague. However, you must test it on somebody. The
commander, or let us say the mayor of the city, comes to you and says,
“Here is a criminal condemned to death. Save us by carrying out the
experiment on this man.” Would you refuse to do so, or would you do it?
WITNESS DR. IVY: I would refuse to do so, because I do not believe that
duress of that sort warrants the breaking of ethical and moral
principles. That is why the Hague Convention and Geneva Convention were
formulated, to make war, a barbaric enterprise, a little more humane.
Q. Do you believe that the population of a city would have any
understanding for your action?
A. They have understanding for the importance of the maintenance of the
principles of medical ethics which apply over a long period of years,
rather than a short period of years. Physicians and medical scientists
should do nothing with the idea of temporarily doing good which, when
carried out repeatedly over a period of time, would debase and
jeopardize a method for doing good. If a medical scientist breaks the
code of medical ethics and says, “Kill the person,” in order to do what
he thinks may be good, in the course of time that will grow and will
cause a loss of faith of the public in the medical profession, and hence
destroy the capacity of the medical profession to do its good for
society. The reason that we must be very careful in the use of human
beings as subjects in medical experiments is in order not to debase and
jeopardize this method for doing great good by causing the public to
react against it.
Q. Witness, do you not believe that your ideal attitude here is more or
less that of a single person standing against the body of public
opinion?
A. No I do not. That is why I read out the principles of medical ethics
yesterday, and that is why the American Medical Association has agreed
essentially to those principles. That is why the principles, the ethical
principles for the use of human beings in medical experiments, have been
quite uniform throughout the world in the past.
Q. Then you do not believe that the urgency, the necessity of this city
would make a revision of this attitude necessary?
A. No, not if they were in danger of killing people in the course of
testing out the new drug or remedy. There is no justification in killing
five people in order to save the lives of five hundred.
Q. Then you are of the opinion that the life of the one prisoner must be
preserved even if the whole city perishes?
A. In order to maintain intact the method of doing good, yes.
Q. From the point of view of the politician, do you consider it good if
he allows the city to perish in the interests of preserving this
principle and preserving the life of the one prisoner?
A. The politician, unless he knows medicine and medical ethics, has no
reason to make a decision on that point.
Q. But as a politician he must make a decision about what is to happen.
Shall he coerce the doctor to carry out the experiment, or shall he
protect the doctor from the rage of the multitude?
A. You can’t answer that question. I should say this, that there is no
state of no politician under the sun that could force me to perform a
medical experiment which I thought was morally unjustified.
Q. You then, despite the order, would not carry out the order, and would
prefer to be executed as a martyr?
A. That is correct, and I know there are thousands of people in the
United States who would have to do likewise.
Q. And do you not also believe that in thousands of cities the
population would kill the doctor who found himself in that position?
A. I do not believe so because they would not know. How would they know
whether the doctor had a drug that would or would not relieve? The
doctor would not know himself, because he would have to experiment
first.
Q. Witness, I put a hypothetical case to you. If we are to turn to
reality other questions would arise. I simply want to hear now your
general attitude to this problem. You are then of the opinion that a
doctor should not carry out the order. Are you also of the opinion that
the politician should not give such an order?
A. Yes. I believe he should not give such an order.
Q. Is this not a purely political decision which must be left at the
discretion of the political leader?
A. Not necessarily. He should seek the best advice that he can obtain.
Q. If he is informed that this one experiment on this one prisoner would
save the whole city, he may give the order despite the fact that the
doctor does not wish to carry it out, is that what you think?
A. He could then give the order, but if the doctor still believed that
it was contrary to his moral responsibilities, then the doctor should
not carry out the order.
Q. That is another question, whether or not he carries it out, but in
such cases you consider it is permissible to give that order, is that
what I understood you to say?
A. After he has obtained the best advice on the subject which he can
obtain.
Q. Then he can give the order. Yes or no?
A. Yes.
* * * * *
G. Subjection to Medical Experimentation as Substitute
for Penalties
a. Introduction
Several of the defendants argued that medical experiments, alleged as
criminal, upon concentration camp inmates were justified because they
were a substitute for penalty or punishment previously imposed on the
experimental subjects. Counsel for the defendant Gebhardt argued that
the experimentation amounted to a complete pardon as sentences of death
had been imposed and hence that the experimentation, not always deadly,
saved human lives. The prosecution’s argument on this point is
illustrated by an extract from the closing statement, set forth on pages
44 to 49. On this general question, selections have been taken from the
closing brief for the defendant Karl Brandt and from the final plea of
the defendant Gebhardt. These appear below on pages 49 to 56. The
following selections from the evidence appear in pages 56 to 61: extract
from the direct examination of the defendant Mrugowsky;
cross-examination of the prosecution’s expert witness, Dr. Andrew C.
Ivy.
b. Selection from the Argumentation of the Prosecution
_EXTRACT FROM THE CLOSING STATEMENT OF THE
PROSECUTION_[9]
* * * * *
Another of the rather common defenses urged by the defendants is that
the experimental subjects were criminals condemned to death who,
provided they survived the experiment, were rewarded by commutation of
their sentence to life imprisonment in a concentration camp. For one who
has even the slightest knowledge of the conditions in concentration
camps and the life expectancy of an average inmate, this alleged defense
assumes the aspect of a ghastly joke. We need only recall the remark
made by one of the women used by Rascher to reward his frozen victims in
Dachau, who when asked by him why she had volunteered for the camp
brothel, replied: “rather half a year in a brothel than half a year in a
concentration camp.” But the defects in this spurious defense run much
deeper. Concentration camps were not ordinary penal institutions, such
as are known in other countries, for the commitment of persons convicted
of crimes by courts. The very purpose of concentration camps was the
oppression and persecution of persons who were considered undesirable by
the Nazi regime on racial, political, and religious grounds. Hundreds of
thousands of victims were confined to concentration camps because they
were simply Jews, Slavs, or gypsies, Free Masons, Social Democrats, or
Communists. They were not tried for any offense and sentenced by a
court, not even a Nazi court. They were imprisoned on the basis of
“protective custody orders” issued by the RSHA. Tens of thousands were
condemned to death on the single order of Himmler, who, as Gebhardt put
it so well, “had the power to execute thousands of people by a stroke of
his pen.” (_Tr. p. 4025._) There were, indeed, a relatively small group
of inmates who might be classed as ordinary criminals. These were men
who had served out their sentences in an ordinary prison and then were
committed to concentration camps for still further detention. A
memorandum of 18 September 1942 by Thierack, the Minister of Justice,
concerning a conversation with Himmler, tells us the fate of those
unfortunates:
“The delivery of anti-social elements from the execution of
their sentence to the Reich Leader SS to be worked to death.
Persons under protective arrest, Jews, gypsies, Russians and
Ukrainians, Poles with more than 3-year sentences, Czechs and
Germans with more than 8-year sentences, according to the
decision of the Reich Minister for Justice.” (_654-PS, Pros. Ex.
562._)
The proof in this case has demonstrated beyond all doubt that so-called
criminals sentenced to death were very rarely used in any of the
experiments. True it is that Himmler said prisoners condemned to death
should be used in those high-altitude experiments where the
long-continued activity of the heart after death was observed by the
experimenters. He was generous enough to say that if such persons could
be brought back to life, then they were to be “pardoned” to
concentration camp for life. But even this unique amnesty had no
application to Russians and Poles, who were used exclusively in those
experiments.
But, assuming for the moment, that this alleged defense might have a
mitigating effect under some circumstances, it certainly has no
application to this case. Be it noted that this is an affirmative
defense by way of avoidance or mitigation. There has been no proof
whatever that criminals sentenced to death by an ordinary court could
possibly be executed in a concentration camp. Such matters were within
the jurisdiction of the Ministry of Justice, not Himmler and the SS. The
experimental subjects we are dealing with are those that Himmler could
condemn by a “stroke of his pen.” If the inmate used in the experiments
was condemned for merely being a Jew, Pole, or Russian, or, for example,
having had sexual intercourse with a Jew, it does not answer the
criminal charge to say that the victim was doomed to die.
Experimentation on such a person is to compound the crime of his initial
unlawful detention as well as to commit the additional crime of murder
or torture. As has been said by another tribunal, “Exculpation from the
charge of criminal homicide can possibly be based only upon bona fide
proof that the subject had committed murder or any other legally
recognized capital offense; and, not even then, unless the sentencing
tribunal with authority granted by the state in the constitution of the
court declared that the execution would be accomplished by means of a
low-pressure chamber.”[10]
In this connection, it might be noted that German law recognized only
three methods of execution, namely, by decapitation, hanging, and
shooting. (_German Penal Code, Part I, Section 13; Reichsgesetzblatt
[Reich Law Gazette], 1933, Part I, p. 151_; _Reichsgesetzblatt 1939,
Part I, p. 1457_.) Moreover, there is no proof that any of the
experimental subjects had their death sentence commuted to any lesser
degree of punishment. Indeed, in the sulfanilamide crimes it was the
experiment _plus_ later execution for at least six of the subjects.
Since the defendants Gebhardt, Fischer, and Oberheuser have put
particular stress on this alleged defense, I should like to make a few
remarks in that connection, but it should be remembered that they apply
with equal force to most of the other defendants. Gebhardt, speaking for
his co-defendants Fischer and Oberheuser, took the position that the
Polish women who had been used in the sulfanilamide experiments had been
condemned to death for participation in a resistance movement and that
by undergoing the experiments voluntarily or otherwise, they were to
have their death sentences commuted to some lesser degree of punishment,
provided they survived the experiments. This was no bargain reached with
the experimental subjects; their wishes were not consulted in the
matter. It was, according to Gebhardt, left to the good faith of someone
unnamed to see to it that the death sentences were not carried out on
the survivors of the experiments. Certainly Gebhardt, Fischer, and
Oberheuser assumed no responsibility or even interest in that regard.
It should be pointed out that the proof shows that the experimental
subjects who testified before this Tribunal were never so much as
afforded trial; they had no opportunity to defend themselves against
whatever crimes they were said to have committed. They were simply
arrested and interrogated by the Gestapo in Poland and sent to the
concentration camp. They had never so much as been informed that they
had been _marked for_, not sentenced to, death. Article 30 of the
Regulations Respecting the Laws and Customs of War on Land, annexed to
the Hague Convention, specifically provides that even a spy “shall not
be punished without previous trial”.
Gebhardt would have the Tribunal believe that _but for_ the experiments
all these Polish girls would be dead; that he preserved the evidence
which was used against him. Nothing could be further from the truth.
There is no proof in the record that these women would have been
executed if they had not undergone the experiments. The witness Maczka
is living proof of the contrary. She was arrested for resistance
activities on 11 September 1941 and shipped to Ravensbrueck on 13
September. She was not an experimental subject yet she lives today.
Substantially all of the Polish experimental subjects arrived in
Ravensbrueck in September 1941. These girls had not been executed by
August 1942 when the experiments began. There were some 700 Polish girls
in that transport. There is no evidence that a substantial number were
ever executed even though most of them were not experimented on.
The proof submitted by the prosecution has shown beyond controversy that
these Polish women _could not have been legally executed_. The right to
grant pardons in cases of death sentences was exclusively vested in
Hitler by a decree of 1 February 1935. On 2 May 1935, Hitler delegated
the right to make negative decisions on pardon applications to the Reich
Minister of Justice. On 30 January 1940, Hitler delegated to the
Governor General for the occupied Polish territories the authority to
grant and deny pardons for the occupied Polish territories. By edict
dated 8 March 1940, the Governor General of occupied Poland ordered
that—
“The execution of a death sentence promulgated by a regular
court, a special court, or a police court martial, shall take
place only when my decision has been issued not to make use of
my right to pardon.” (_NO-3073, Pros. Ex. 534._)
Thus, even though we assume _arguendo_, that the experimental subjects
had all committed substantial crimes, that they were all properly tried
by a duly constituted court of law, and that they were legally sentenced
to death, it is still clear from these decrees that these women could
not have been legally executed until such time as the Governor General
of occupied Poland had decided in each case not to make use of his
pardon right. There has been no proof that the Governor General ever
acted with respect to pardoning the Polish women used in the
experiments, or, for that matter, any substantial number of those not
used in the experiments. The only reason these 700 Polish women were
transported from Warsaw and Lublin to Ravensbrueck, in the first place,
was because the Governor General had not approved their execution.
Otherwise they would have been immediately executed in Poland. At the
very least, these women were entitled to remain unmolested so long as
the Governor General took no action. He may never have acted or, when he
did, he may have acted favorably on the pardon. Who is to say that the
majority of these 700 women did not live through the war even though
they did not undergo the experiments? Certainly it was incumbent on the
defense to prove the contrary by a preponderance of the evidence. This
it did not do by any evidence.
The defendants Gebhardt, Fischer, and Oberheuser certainly cannot claim
that they believed in good faith that the Polish women could have been
legally executed. Even the camp doctor, Schiedlausky, knew that the
Governor General had to approve each execution. Moreover, the large
number of 700 women being sentenced to death at this early stage of the
war was enough to put any reasonable person on notice that something was
wrong.
Additionally, the uncontroverted evidence proves that survival of the
experiments was no guarantee whatever of avoiding execution in any
event. At least six of the experimental subjects were proved to have
been executed after having survived the experiments. It was not a
question of the experiment _or_ execution but rather the experiments
_and_ execution. Indeed, in February 1945, an effort was made to execute
all of the experimental subjects but, because of confusion in the camp
due to the war situation, the experimental subjects were able to obtain
different identification numbers and so avoid detection.
But even if one takes the case of the defense at its face value, the
Tribunal is in effect asked to rule that it is legal for military
doctors of a nation at war to experiment on political prisoners of an
occupied country who are condemned to death, to experiment on them in
such a way that they may suffer death, excrutiating pain, mutilation,
and permanent disability, all this without their consent and in direct
aid of the military potential of their enemy. There would, of course, be
no valid reason for limiting such a decision to civilian prisoners; the
experiments would certainly have been no worse had they been performed
on Polish or American prisoners of war. It is impossible to consider
seriously this ghoulish ruling being sought for by the defense.
c. Selections from the Argumentation of the Defense
_EXTRACT FROM THE CLOSING BRIEF FOR DEFENDANT
KARL BRANDT_
* * * * *
_The Medical Experiments as Substitute for Penalty_[11]
The indictment embraces certain medical experiments, which are called
war crimes and crimes against humanity. According to paragraphs 10 and
15 of the indictment, these experiments are designated as crimes, as a
violation of the general principles of criminal law as evolved from the
penal law of all civilized nations, as well as violations of the
national penal laws of the countries in which such crimes were
committed. An indication of their punishable character was seen in the
fact that the experiments were carried out _without the consent of the
persons experimented upon_.
We must examine whether this _consent_ of the person subjected to
experiments is always necessary or whether it can be replaced _by an
order of the state_ through the penal administration, and further, if
the same law applies to the execution of sentences on foreigners. If
consent to the human experiment by the person experimented on can be
replaced by an order of the state, then the person responsible for the
experiment cannot be punished in cases where the experiments were
carried out through the _official penal administration in accordance
with the order_.
No _legal regulations_ regarding the question of admissibility of
medical experiments in civilized countries are _known_. However, it is a
fact that such experiments have been carried out to a greater or lesser
extent within the memory of man in all countries and up till now have
remained unopposed. But with the development of medical knowledge and
modern methods of research, experiments on human beings have increased
considerably. Today, when research, to solve its problems and meet its
challenges, has advanced into the most widely differentiated spheres,
they are considered absolutely necessary. Accordingly, human experiments
will continue to increase with the progress of science and the _problem_
that this trial has raised will always be _urgent_.
Moreover, reference is made to the opinion of the Washington anatomist,
E. V. Cowdry, on the necessity of human experiments in cancer research
(_Karl Brandt 50, Karl Brandt Ex. 56_), and the order for human
experiments on the part of the British Military Government for Professor
McCance in Wuppertal. The knowledge of such experiments on human beings
was, as literature shows, at first limited to medical specialist circles
and the official authorities concerned. Only in recent times has _the
public_ been cautiously informed. (_Becker-Freyseng 60, Becker-Freyseng
Ex. 58._) Complete instruction of the public is only necessary so that,
in case of an eventual discussion, sound judgment of the actions of the
researcher may be possible.
Reference is also made to the remarkable publication on the malaria
experiment on 800 prisoners in the United States, published in the
widely circulated periodical “Life” (_Karl Brandt 1, Karl Brandt Ex.
1_). The number of the imprisoned persons to be experimented upon was
even more than 2,000, according to the radio account submitted.
Repeated reports on such experiments have so far been _received without
opposition_ by specialist circles, the authorities, and also the general
public. From that can be gathered what in principle is considered
permissible and right by competent authorities and the public. The
experiments actually carried out are a mirror of the existing laws and
one can by way of _legal sociological investigation find the norms of
law_ that have validity. This is done where the law is not codified. In
the same manner, the International Military Tribunal has derived the
existing international law on the basis of its phenomena and the same
procedure leads to the determination of the common law. Inasmuch as
positive regulations exist in the United States which are contradictory
to the law derived from the phenomena, these legal regulations must be
produced or else the _conclusions_ that can be drawn from the
experiments must be regarded _in favor of the defendant_ as valid law
and an expression of fundamental principles of punishment.
The defense has in the present situation only very limited literature at
its disposal for the comprehension and explanation of these legally
important facts of the case. However, the little that is available is
already so revealing that one must come to the conclusion that medical
experiments on human beings are not only admissible on principle, but in
addition, that it also does _not_ violate _the basic principles of
criminal law_ of civilized nations to carry out _experiments on
convicts_.
The _question_ today is not whether experiments on human beings may be
carried out but only under what circumstances and _how_ these
experiments may be undertaken. Moreover, the prosecution itself has
declared that human experiments are admissible on principle.
It is not intended here to go into the experiments which were made on
the healthy and the sick and _corpus vile_ at the _time_ when modern
research was in _its infancy_ and without participation of government
authorities. Insight into those times can be obtained from the book by
the Russian physician _Wressajew_ “Confession of a Physician” (_Karl
Brandt 48, Karl Brandt Ex. 55_), published about 1900. The book reveals
some of the experiments that were then known to medical experts and it
follows that the governments did not interfere but in the interest of
medical progress permitted such experiments without trying to protect
the individual as the person experimented upon. The states then either
_considered_ such experiments _compatible with criminal law_, or they
acquiesced in the camouflaging of the “voluntariness” of the person
experimented upon which was customary in consideration of the law. No
governmental intervention as the result of such medical experiments is
known.
With the development of health administrations, _governmental
supervision_ has been increasingly instituted in all countries and one
can consider all that was admitted in medical experiments with the
consent of the administration and without opposition as the _sediment of
the existing law_. This is true particularly of recent times where
governmental direction is on the increase.
Particular attention must be given here to the experiments in state
institutes on convicts and those sentenced to death.
* * * * *
_EXTRACTS FROM THE FINAL PLEA FOR
DEFENDANT GEBHARDT_[12]
* * * * *
_The Agreement by the Experimental Persons as Legal Justification_
I shall now deal with the individual reasons for the exclusion of
injustice and guilt, which according to the result of the evidence
preclude the culpability of the defendant’s behavior. I am hereby taking
into consideration that the assumption of only one of the reasons for
the exclusion of punishment which we shall now deal with suffices to
justify the defendant’s behavior and to exonerate him of the offense in
the sense of a personal culpability because of his commission or
omission. The individual reasons for the exclusion of culpability are
discussed without taking into consideration whether the examination of
any further similar reasons is superfluous, since the assumption of
another reason for the exclusion of culpability suffices to secure the
intended success. Evidence has proved that the experiments for testing
sulfanilamides were carried out, to begin with, on fifteen professional
male criminals who had been sentenced to death. Had they survived the
experiments, they would have been granted a pardon therefor. Considering
that this part of the experiment is not a subject of the indictment, I
need not go into detail about it.
To the second and third group (the sulfanilamide experiments) belonged
as experimental subjects members of the Polish Resistance Movement, who,
in view of their activity in this illegal movement, had been sentenced
to death by German courts martial.
It is a principle of German criminal law that in any case the consent of
the offender precludes the illegality of the action. This principle is
not only found in German law but is an established part of practically
all legal systems. Consequently, we have to examine the question whether
the experimental subjects gave their consent to the experiments. When
examining the question whether legally effective consent had been given,
it will not matter so much whether the experimental subjects expressly
declared their consent. However, if generally acknowledged principles
are applied, one may presume that they expressed their consent in some
obvious manner. It is clear that consent could also have been given
tacitly and by conclusive action.
However, it is true that all the female witnesses examined in court
testified that they did not give their consent to the experiments. The
Tribunal, in evaluating these facts, will have to take into
consideration that these witnesses were in a special position at that
time, as they also are today. It stands to reason that under these
circumstances many things may appear different to them today from the
way they actually happened five years ago. It might be true that the
experimental subjects did not give their actual consent to these
experiments. It might even be true that they were not asked before the
experiments whether they consented to the experiments. Nevertheless this
would not exclude the possibility that, considering their position at
that time and being certain that they could not escape execution in any
other way, they nevertheless did consent to the experiments, however
tacitly. This supposition would coincide with the fact that, for
instance, none of the experimental subjects had ever made any complaint
or mentioned to the defendant Fischer, who had regularly changed the
dressings, that they did not consent to the experiments.
_The Presumed Consent of the Experimental Subjects as
Legal Justification_
The illegality of an action is excluded not only if the injured person
agreed either actually or tacitly, but if there could have been a
possible consent. These are the cases where the consent of the injured
person could be expected normally, but where for some reason or another
such a consent was actually not given. Numerous attempts have been made
in legal literature and also in judicial decisions to do justice to this
situation which so often occurs in practice. Not all of these theories
need to be discussed since the decisive points of view have by now been
clarified. At first an attempt was made to settle this question by
applying the law referring to unauthorized acting for and on behalf of
another person. Serious objections were raised against this transfer of
concepts of civil law to criminal law. The criminal idea of consent is
to be extended instead to include so-called supposed consent. I
understand this as an objective judicial judgment based on
probabilities, namely, that the person concerned would have given his
consent to the action from his personal point of view if he had fully
known and realized the situation. Wherever such a judgment could be
applied, it should have the same effect as the judicial finding of an
actual consent.
However, other courts and scientists base their reason for justification
upon “action for the benefit of the injured person”. If correctly
viewed, no actual contradiction to an assumed comment could be seen
therein. On the contrary one may say perhaps that this could be
considered as an independent argument for justification.
In modern literature and judicial practice, the tendency prevails to
combine the two last mentioned viewpoints by demanding them
cumulatively. It is not comprehensible, however, why such simultaneous
existence of two arguments for justification should be required when
each argument in itself is decisive.
A well-known teacher of criminal law in Germany stated the following
conception of this idea: “Should the injured person not consent, the
action in his behalf and for his benefit is to be considered lawful if
his consent could have been expected according to an objective judgment.
The primary justifying argument here is not that the injured person has
waived his right of decision, but that a positive action was performed
for his benefit.”
The practical result, in spite of the theoretical objections raised
against such a combination, could hardly be different. For the
“objective judicial sentence based on probabilities,” here applied for,
which is decisive and upon which the so-called supposed consent would
have to be based, will regularly result from an action that under given
circumstances is performed for the “benefit of the injured person.”
Applying these general principles to the sulfanilamide experiments,
there can hardly be any doubt that the experimental subjects would have
agreed if they had been fully aware of their position. The experimental
subjects had already been sentenced to death and their participation in
these experiments was the only possibility for them to avoid execution.
If the Tribunal now tries to assess the probability that the
experimental subjects would have agreed to submit to those experiments
if they had had full knowledge of the position and the certainty of
their eventual execution, there can in my opinion be very little doubt
as to the result of this examination.
Nor can there be two opinions regarding the question whether, under
circumstances prevailing at that time, the utilization of the prisoners
for these experiments was “in the interest of the wounded”.
The evidence has shown that the other members of the Polish Resistance
Movement, who were sentenced to death by court martial and who were in
the concentration camp at Ravensbrueck awaiting the confirmation of the
verdict which was given by the Governor General of the occupied Polish
territory, were really shot only after a complicated and protracted
procedure. Their participation in these medical experiments was the only
chance for them as condemned persons to save their lives. Their
participation in these experiments was not only in their interest but it
also seems to be inconceivable that the prisoners, if they had been
fully aware of their position and had known of the forthcoming
execution, would not have given their consent for the experiments.
* * * * *
_The Defendant’s Erroneous Assumption of an Agreement by the
Experimental Subjects_
The evidence has shown that the experimental subjects in Camp
Ravensbrueck were not selected by the defendant Karl Gebhardt nor by any
of the other defendants, but that the selection was made by the
competent agency within the Reich Security Main Office in Berlin or the
political department of the Ravensbrueck concentration camp. During the
conference at the beginning of July 1942, in which the conditions for
the experiments were agreed upon, it was expressly assured that the
experimental subjects were persons sentenced to death who were to be
pardoned if they survived the experiments.
In view of the fact that the defendant Gebhardt did not himself select
the experimental subjects and that, on the other hand, no complaints of
any kind on the part of the experimental subjects were ever reported to
him,—the defendant Fischer was not in a position to make any personal
observations along these lines either—we now must examine the question
of the legal position of the defendant Gebhardt if he erroneously
assumed the consent of the experimental subjects.
In criminal law it is a generally recognized principle that there can be
no question of intentional action if there existed an erroneous
assumption of justificatory facts. This principle can also be found in
Article 59 of the German Penal Code.[13] But beyond that, this legal
principle may be considered one of the principles which is generally
valid and which is derived from the general principles of the criminal
law of all civilized nations, thus representing an inherent part of our
modern conception of criminal law. In application of this principle—and
even if the Court does not consider the consent of the experimental
subjects as proved and, therefore, does not provide the prerequisites
for a legal excuse for objective reasons—we still cannot assume an
intentional act on the part of the defendant Gebhardt if he acted under
the “erroneous assumption of consent by the experimental subjects.”
_The Erroneous Assumption of Probable Agreement_
The same applies if the defendant Gebhardt erroneously assumed a
probable consent of the experimental subjects. We do not mean here an
erroneous assumption with regard to the legal suppositions of such a
one, but the erroneous assumption of such facts, which, had they
existed, would have induced the Tribunal to recognize the “probable
consent.” I am referring here to my argumentation for the legal excuse
represented by the “probable consent,” which I understand as “an
objective opinion concerning the law, based on probability and according
to which the person concerned would have consented to the act from his
own personal standpoint, if he had been fully aware of the
circumstances.” Provided that the defendant Dr. Gebhardt assumed the
existence of such circumstances which seems certain according to the
evidence, and even if he did so erroneously, the intent and thus the
crime in this case would also be excluded according to the generally
acknowledged principle.
* * * * *
d. Evidence
_Testimony_
Page
Extract from the testimony of defendant Mrugowsky 56
Extract from the testimony of prosecution expert witness Dr. 60
Andrew C. Ivy
EXTRACT FROM THE TESTIMONY OF DEFENDANT MRUGOWSKY[14]
_DIRECT EXAMINATION_
* * * * *
DR. FLEMMING: You know that General Taylor, in his opening speech, said
that this experiment with aconitine had not been conducted in order to
find an antidote to aconitine but in order to ascertain how long it
takes to kill a human being in this manner. Please tell the Tribunal
whether this concerned an experiment.
DEFENDANT MRUGOWSKY: This was not an experiment in the actual sense of
the word. It was the legal execution of five thieves, and some special
facts were to be ascertained during this execution. The details were as
follows: One day the chemist of the Reich Criminal Police Office, Dr.
Wittmann, came to me. He asked me to attend an execution as the official
doctor. As the reason for this request he added that in the General
Government in Poland a high official had been injured when he was
attacked with a revolver; that the bullet had inflicted only a harmless
flesh wound, but nevertheless the person had died after a few hours with
symptoms of poisoning. The person who had attacked him had been
arrested, and the rest of the ammunition was a hollow ball which
contained a crystallized poison. The Chemical Institute of the Reich
Criminal Police Office tested this and found that it was aconitine. The
ammunition was of Russian origin. There is no aconitine in Germany; it
is imported. The question was whether this was the first case of the
beginning of poison warfare against Germany. We had been expecting such
a method of warfare for some time. For that reason there was not only
criminal interest in clearing up this case but a general interest of the
greatest importance. This ammunition was to be tested on five thieves
who were to be executed anyhow, and it was to be seen whether this
crystallized poison contained another poison which had not been found in
the chemical tests. The remainder of the original Russian ammunition was
to be used, and also German ammunition which had been made in imitation
of the Russian. At the same time—and this was the main purpose of the
experiment—it was to be discovered how much time would elapse between
the injury and the appearance of the symptoms of poisoning, in order, if
necessary, to be able to use an antidote. This question was of such
great importance because an antidote to aconitine is hardly known, and
if this had actually been the beginning of poison warfare, then efforts
would have to be made immediately to find an antidote. Therefore, the
head of the Reich Criminal Police Office asked me, and the Chief of the
Criminal Technical Office also asked me, to participate in the execution
myself, although that was not actually my work; but Dr. Wittmann said he
did not know of any toxicologist except one in Berlin; they had all been
drafted, and as a bacteriologist I had a certain amount of experience in
symptoms of poisoning connected with bacteria and, therefore, he asked
me to take over this job. I was rather unwilling to do so. I pointed out
to Dr. Wittmann that the regular police in Vienna had a pharmacologist
who was very experienced and I suggested that he should be called upon;
but this was not done because of the poor communications resulting from
the air warfare. Since, on the other hand, this question was doubtless
of great significance and should not be postponed, I finally declared
myself willing to fulfill this request. In accordance with the purpose
of this job, I made not only the usual report, but a rather more
detailed report on the symptoms of poisoning. There is the report which
we have here in this prosecution document.
Q. You have said that this ammunition which was captured was of Russian
production. How can that be proved?
A. The prosecution itself proved that. To this Document NO-201,
Prosecution Exhibit 290, some files were attached which were not
included in my report. There are three drawings of cross-sections of
these bullets which were made and handed in to the Institute. The
heading is “Poison bullet from a Russian pistol, calibre 7.65” and
details about the construction of this bullet.
Q. You say that this photostatic copy of the drawings of the bullet was
not part of your report. How is that shown? Will you compare the stamps
in the diary?
A. The report which I handed in is dated 12 September 1944, and then the
next day it was received by the Criminal Technical Office, and the
receipt stamp carried the number “Secret 53”. The drawings, however,
have a different secret journal number, that is, 15-1944. If the number
G-53 was in September then, if the distribution of letters received is
assumed to be even throughout the year, I should assume that the Reich
Criminal Police Office received these drawings in March of the same
year. At that time I did not know anything about this attack, and the
experiment had not been started yet. Nor did I know any details about
the possibility of such poison warfare.
Q. Who was present at the execution?
A. Dr. Ding, who happened to be in Berlin and whom I took with me in
order to support my observations; it was he who conducted the actual
medical examination. I, myself, merely ascertained the occurrence of
death. Also Dr. Wittmann, representing the Criminal Technical Institute;
also a representative of the camp commandant, I believe the adjutant;
and an Untersturmfuehrer who performed the execution, that is, actually
shot the people. It is possible that there were others whom I do not
remember and whose names I do not know.
Q. Did you investigate in any way who these people were who were
executed, and by what court they had been condemned to death?
A. I talked with the people; they understood German; they were
apparently Germans. I considered them ethnic Germans [Volksdeutsche] of
whom we had large numbers in Germany at that time. On the other hand, I
knew that in concentration camps executions were carried out, and I had
been told that this was an official matter and that there had to be an
official representative of the camp commandant present. The fact that
such a representative was present at this execution was sufficient for
me to assume that the matter actually was official and, on the other
hand, I had no opportunity to be informed of the sentence or anything
like that.
Q. Then you did not see the death sentence order before it was carried
out?
A. No. I did not have the opportunity because the doctor is merely
called in to an execution to ascertain when death occurs, but I am
convinced that it was not my duty to examine the sentence order, for I
had nothing to do with the actual execution. The order was given by the
representative of the camp commandant; someone who was attached to the
commandant’s office actually shot the people, and I was merely there to
ascertain when death occurred and to note the symptoms of poisoning, but
Dr. Ding did the latter for me. The official information from a high
authority was sufficient proof to me for the legality of the execution.
Q. In the case of two of the five thieves, the poison had no effect. You
saw the suffering of the other three from the poison; why did you not
shorten this suffering?
A. The sight of this execution was one of the most horrible experiences
of my life. On the other hand, I could not shorten the symptoms for in
the first place there was no antidote against aconitine available. If it
is in the circulation, then there is no possibility of removing it. In
the second place, it was the express purpose to find out how long the
symptoms of poisoning last in order in later cases to be able to use an
antidote, which it was hoped would soon be discovered.
Q. Did you know that executions in Germany can only be carried out by
shooting, by hanging, or by beheading, and did you not have any
misgivings when this execution was carried out in a different way?
A. I am not a jurist; I do not know the methods of execution. On the
other hand, I have already said that in my opinion the state itself has
the right to determine the method of death for its citizens in wartime
and doubtless has the right to determine the method of an execution.
Here the suspicion had arisen that poison war was beginning against
Germany. This seemed to be supported by the finding of poison Russian
ammunition. Since the investigations were carried out by the highest
authorities in the Reich, I had no doubt about the juridicial
admissibility upon which I, as a doctor, had no influence.
PRESIDING JUDGE BEALS: Witness, were each of these men struck by more
than one bullet or only by one bullet each?
DEFENDANT MRUGOWSKY: Each one was shot only once in the thigh; two of
these five persons were immediately killed by another shot, because the
first shot of the poison ammunition had hit the artery in the thigh and
their suffering was immediately stopped; but the others had only flesh
wounds and after a certain period of time, symptoms of poisoning
appeared; that was three people.
DR. FLEMMING: Did you have anything else to do with the previous history
of this execution?
MRUGOWSKY: No.
* * * * *
EXTRACT FROM THE TESTIMONY OF PROSECUTION EXPERT WITNESS
DR. ANDREW C. IVY[15]
_CROSS-EXAMINATION_
* * * * *
DR. SERVATIUS: Mr. President, I should like to ask your permission to
put to the witness a small newspaper notice from the newspaper “The
People” of 3 March 1946. This is an English newspaper. Regarding the
defendants before the IMT, the following was stated: “The opinion of
some people is that they should be condemned very soon.” Then it says:
“Others believe that they should be made to expiate their crimes by
helping to cure cancer, leprosy, and tuberculosis as experimental
subjects.”
Is the thought of atonement contained therein?
WITNESS DR. IVY: Yes, but it is expressed in a hysterical manner.
Q. Yes. I agree with you.
Witness, do you believe that if a person does not volunteer for an
experiment, the state can order such atonement?
A. No.
Q. Do you not believe that you can expect something of a prisoner that
goes beyond his actual sentence if at the same time people outside
prison are subject to such burdens?
A. No. Those ideas were given up many years ago in the science and study
of penology. The primary objective of penology today is reformative, not
punitive, not expiative.
Q. Witness, is that the recognized theory of penology throughout the
whole world today?
A. It may not be the recognized theory throughout the whole world today,
but it is the prevailing theory in the United States. There is one other
aspect that is quite large and essential, and that is the protective
aspect of imprisonment to protect society from a habitual criminal.
Q. Witness, if a soldier at the front is exposed to an epidemic and can
be almost certain that he will catch typhus and deserts and hides behind
the protecting walls of a prison, would you not consider it justifiable
if he is persuaded to volunteer for an experiment that concerns itself
with typhus?
A. Will you read the question again?
Q. If a soldier deserts from the front where typhus is raging for fear
that he too will contract typhus and prefers to be imprisoned in order
thus to save himself, do you think it is right for him to be persuaded
while he is serving his sentence to subject himself to a typhus
experiment?
A. As a volunteer? Yes.
Q. I see. And would you not take a step further, if this prisoner says,
“No, I refuse, because if I do this there wouldn’t have been any point
in my deserting; I deserted in order to save myself. My buddies may die
but I would just prefer not to.”
A. The answer to that question is no.
Q. Don’t you admit that one can hold a different view in this matter?
A. Yes, but I don’t believe it could be justified.
* * * * *
H. Usefulness of the Experiments
a. Introduction
Both by testimony and argument the defense claimed that the medical
experiments had generally been useful in furthering medical science,
that in some cases the experiments alleged as criminal had increased the
speed of the progress of medical science, and that in some cases there
was no other alternative for the development of medical science except
to conduct experiments on human beings. The prosecution, in addition to
arguing that voluntary participation by the subject of experimentation
was a prerequisite of legal experiments, argued that the experiments
turned out to be entirely useless for medical science and human
progress, and that in some cases it was doubtful if considerations of
medical science played any controlling role in the decision to conduct
the experiments.
Selections from the defense argumentation have been made from the final
pleas for the defendants Becker-Freyseng and Beiglboeck. Extracts from
these final pleas appear below on pages 62 to 64. A part of the opening
statement of the prosecution (vol. I, p. 37 ff.) was devoted to this
topic. Defense evidence on the usefulness of the experiments has been
selected from the direct examination of the defendants Mrugowsky and
Rose. Extracts from their testimony appear below on pages 66 to 70.
b. Selections from the Argumentation of the Defense
_EXTRACT FROM THE FINAL PLEA FOR
DEFENDANT BECKER-FREYSENG_[16]
* * * * *
At the moment I consider one factor above all to be material. It is the
following question: Was everything done, when the sea-water experiments
were being planned, to furnish all data required for establishing the
necessity of the experiments? And I think I can definitely answer this
question in the affirmative.
The defense has proved the high sense of responsibility applied to the
inquiry on the necessity of the sea-water experiments. Scientists of
international reputation, like Professor Dr. Eppinger and Professor
Heubner, were consulted, and they definitely answered this question in
the affirmative. More cannot be expected or demanded in the way of a
sense of responsibility. In my opinion, the mere fact that these
scientists were asked their opinion on the issue in question shows that
everything was done on the part of the Chief of the Medical Service of
the Luftwaffe and his office to reach the right decision in this
question.
With regard to the purely objective judgment of the sea-water
experiments and their necessity, I should like to refer to the
statements made in my closing brief for Dr. Becker-Freyseng.
At this point, I should, however, like to add the following: The
prosecution has tried to make out that it was the purpose of these
sea-water experiments to decide whether Berkatit removes the salt from
sea water. This contention of the prosecution has in no way been proved.
I must stress here again, most emphatically, that this was never the
purpose of the sea-water experiments.
All people concerned realized that Berkatit does not remove the salt
from sea water. The question which was to be clarified and which
necessitated the experiments was rather the following: Under the action
of the vitamins contained in Berkatit, will the kidneys be capable of
producing a urine with a higher sodium chloride concentration than is
normally the case? Dr. Eppinger answered this question neither in the
affirmative nor in the negative; he stated that this question could be
decided only by experiment.
In addition there was another question to be decided, as to whether in
case of shipwreck it would be more desirable to endure thirst, or
whether marooned fliers should be advised to drink small quantities of
salt water. In 1942-1944 this question was also raised in the United
States and England and there, too, human experiments were carried out.
But all these individual questions were only part of the great issue of
how shipwrecked persons could be helped to escape the agony and danger
of dying from thirst. These issues were the basis for the experiments
conducted in 1944. In my opinion it is not admissible to construe
arbitrarily another issue today and to contend on the basis of such
issue, which never existed, that these experiments were not necessary.
These medical issues alone necessitated the experiments. There were
other issues too, to which I want to make short reference.
Until 1944 the world lacked an agent to make sea water drinkable. Such
an agent was an absolute necessity. Nobody denied even then that
Wofatit, developed by the defendant Schaefer, would have been an ideal
agent for this purpose. It was, however, equally clear that this agent
could only be manufactured by withdrawing the necessary raw material,
namely silver, from other war-essential uses.
Furthermore, it was not denied that Berkatit did not require critical
raw materials in the same measure. Another circumstance to be considered
was that Berkatit could have been produced in existing plants, whereas
it would have been necessary to erect new plants for the production of
Wofatit. Accordingly, these technical reasons favored the introduction
of Berkatit. It can hardly be denied that it was necessary for a medical
officer conscious of his responsibilities in war to consider these
reasons when reaching a decision. Incidentally, the expert of the
prosecution, Professor Ivy, also stated that these reasons were
definitely worthy of consideration.
Accordingly it had to be clarified, whether Berkatit could not, after
all, be introduced for distribution to persons facing the risk of
shipwreck, and the inquiry into this question was all the more necessary
as, according to the opinion of Professor Eppinger and Professor
Heubner, Berkatit apparently contained vitamins which eliminated the
risks incurred by human beings when drinking sea water. Whether the
opinion of the experts, Heubner and Eppinger, was right or not, could,
at that time as today, only be established by experiment.
Hence if the defendant Dr. Becker-Freyseng, who examined all these
factors and applied all precautions possible, became convinced in 1944
that the experiments could not be avoided, and if, from this viewpoint,
in his official capacity as a consultant (Referent) he reported to his
highest authority at that time, Professor Dr. Schroeder, that he
considered the experiments necessary, then, in my opinion, he can in no
way be charged under criminal law on that account.
Therefore, in my opinion, it has been proved that Dr. Becker-Freyseng
considered these experiments necessary and that he was entitled to
consider them necessary. And this question alone can be made the basis
for an inquiry into his guilt under criminal law.
With regard to this point, I would like in conclusion to refer to the
testimony of Professor Dr. Vollhardt. This world-famous physician, this
research scientist, recognized as such in international circles, upon
whom, only a few weeks ago, on the occasion of his 75th birthday, the
highest German decoration of science was bestowed, namely the Goethe
Medal for Art and Science, a ceremony in which nearly all European
countries, also America, joined, stated before this high Tribunal, and I
quote:
“I regarded it as sign of a sense of responsibility that in view
of the increasing number of flying accidents, the sea-emergency
question was taken up and these experiments were launched.”
Insofar, I consider it proved that the planning of these experiments was
in no way objectionable.
* * * * *
_EXTRACT FROM THE FINAL PLEA FOR
DEFENDANT BEIGLBOECK_[17]
* * * * *
Even medical science on both sides had to assist warfare. I have before
me the index of the best known scientific English periodicals from the
war period, “The Lancet” and “Nature”. Now, after the war, General T. J.
Betts of the United States War Department and Professor W. T. Sinsteat
of the British Supply Office declared that the captured German
scientific results accomplished during the war were of the greatest use
for the economic progress of British and American industry. Even the
terrible freezing experiments of Dr. Rascher proved to be of greatest
use for America in the war against Japan. (_Becker-Freyseng 31,
Becker-Freyseng Ex. 18._)
c. Evidence
_Defense Documents_
Doc. No. Def. Ex. No. Description of Document Page
Becker-Freyseng Becker-Freyseng Extracts from Harper’s 65
31 Ex. 18 Magazine entitled “Secrets
by the Thousand” by C.
Lester Walker.
_Testimony_
Extract from the testimony of defendant Mrugowsky 66
Extracts from the testimony of defendant Rose 69
BECKER-FREYSENG DOCUMENT 31
BECKER-FREYSENG DEFENSE EXHIBIT 18
EXTRACTS FROM HARPER’S MAGAZINE ENTITLED “SECRETS BY THE THOUSAND” BY C.
LESTER WALKER
Someone wrote to Wright Field recently saying he understood this country
had got together quite a collection of enemy war secrets, that many were
now on public sale, and could he, please, be sent everything on German
jet engines. The Air Documents Division of the Army Air Force answered:
“Sorry—but that would be fifty tons.”
Moreover, that fifty tons was just a small portion of what is today
undoubtedly the biggest collection of captured enemy war secrets ever
assembled. If you always thought of war secrets—as who hasn’t—as
coming in sixes and sevens, as a few items of information readily handed
on to the properly interested authorities, it may interest you to learn
that the war secrets in this collection run into the thousands, that the
mass of documents is mountainous, and that there has never before been
anything quite comparable to it.
* * * * *
One Washington official has called it “the greatest single source of
this type of material in the world—the first orderly exploitation of an
entire country’s brainpower”.
How the collection came to be goes back, for beginnings, to one day in
1944 when the Allied Combined Chiefs of Staff set in motion a colossal
search for war secrets in occupied German territory. They created a
group of military-civilian teams, termed the Joint Intelligence
Objectives Committee, which was to follow the invading armies into
Germany and uncover all her military, scientific, and industrial secrets
for early use against Japan. These teams worked against time to get the
most vital information before it was destroyed, and in getting it
performed prodigies of ingenuity and tenacity.
* * * * *
III
In matters of food, medicine, and branches of the military art, the
finds of the search teams were no less impressive. And in aeronautics
and guided missiles they proved to be downright alarming.
* * * * *
“As for medical secrets in this collection”, one Army surgeon has
remarked, “some of them will save American medicine years of research;
some of them are revolutionary—like, for instance, the German technique
of treatment after prolonged and usually fatal exposure to cold.”
This discovery—revealed to us by Major Alexander’s search already
mentioned—reversed everything medical science thought about the
subject. In every one of the dread experiments the subjects were most
successfully revived, both temporarily and permanently, by immediate
immersion in hot water. In two cases of complete standstill of heart and
cessation of respiration, a hot bath at 122° brought both subjects back
to life. Before our war with Japan ended, this method was adopted as the
treatment for use by all American Air-Sea Rescue Services, and it is
generally accepted by medicine today.
EXTRACT FROM THE TESTIMONY OF DEFENDANT MRUGOWSKY[18]
_DIRECT EXAMINATION_
* * * * *
DR. FLEMMING: I further submit an excerpt from the testimony of
Generalarzt Dr. Schreiber which he made on 26 August 1946 before the
International Military Tribunal. This can be found in the transcript of
the International Military Tribunal for that date. This is Mrugowsky
Document 27. I offer it as Mrugowsky Exhibit 45. Answering the question,
“What scientific value did the experiments [typhus experiments in
Buchenwald] of the specialist Ding have”? Generalarzt Dr. Schreiber
answered, “In my opinion they had no scientific value at all because
during the war we had already gained much experience and collected a
great deal of data in this field. We were thoroughly acquainted with the
composition and qualities of our vaccine and no such tests were required
any longer. Many of the vaccines examined by Ding were not used any more
at all and were rejected.”
Would you define your position to that statement?
DEFENDANT MRUGOWSKY: I do not know how Schreiber could have expressed
that opinion, nor do I know whether he is in possession of full
knowledge of the results of this work. I never discussed this question
with him and I therefore cannot examine it. This much is clear, however,
that Schreiber is speaking of a later period of time, for the vaccines
that were no longer produced were not produced because the experiments
of Ding had proved their inferiority. The epidemiological examination of
the various vaccines during the war only originates from a later period,
in particular the years 1943 and 1944. The exploitation of these
experiences only originates from the last years of the war and it is,
therefore, my opinion that this testimony of Schreiber is incorrect.
Q. I am interrupting you and I shall have Handloser Exhibit 14 shown to
you. We are here concerned with an excerpt of a scientific thesis by
Geheimrat Otto. Do you know Geheimrat Otto?
A. Yes, I know Geheimrat Otto. He is probably the best typhus expert not
only in Germany but in Europe, who has dealt with typhus all his life.
Q. From this excerpt you will see that Geheimrat Otto says, still in
1943:
“While the efficacy of lice vaccines has already been tested on
a large scale in Poland, Ethiopia, and China, and the vaccine
has proved its value, it is still necessary to gather
large-scale practical experiences with lung and vitelline
membrane vaccines. In animal experiments they have proved of
equal value with the former.”
Would you say something on that?
A. Professor Otto says here that even in the year 1943 the vitelline
membrane vaccine and the vaccines from lungs of animals were not
sufficiently known. That confirms what I have just testified and that is
in answer to Dr. Schreiber’s statement.
Q. The witness Bernhard Schmidt, who was interrogated here, stated that
human experiments were superfluous for the purpose of testing vaccines
and that the value of the individual typhus vaccines could have been
ascertained in an epidemiological way. What is your opinion in that
connection?
A. This is my opinion also. It is my opinion that these tests could have
been carried out in an epidemiological manner. I represented that point
of view before Grawitz and Himmler from the very beginning.
Q. You stated yesterday that to test this matter in an epidemiological
way, a large number of persons would have had to be vaccinated and
compared with a large number of persons who were not vaccinated. Would
such a long experiment have been possible considering the circumstances
prevailing during the war?
A. Such a test would have been possible. It was actually introduced by
me within the framework of the ministry. It is a matter of course,
however, that the results can only be collected at a very late date and
can only be exploited at a much later date. In the case of the entire
experiment we were concerned with bridging over this space of time.
Q. In carrying out this examination one could have found that one
vaccine has only a very small effectiveness, as was actually found out
in the case of the Behring vaccine. In that case would you say that the
mortality of persons vaccinated with the inferior vaccine would have
been much greater than the entire amount of fatalities as they occurred
in Buchenwald? You know that the statement regarding the fatality
figures fluctuated between 100 and 120.
A. That could be assumed to be the case with certainty. A comparison is
the manner in which all tests are carried out in this field. I shall
give you a few examples for that. When Emil von Behring in the year 1890
discovered the diphtheria serum, it was at first used by a physician of
the Berlin Charité in the case of diphtheria-infected children. He
treated about 1,200 children suffering from diphtheria with that serum.
He registered a mortality rate in the case of these children, in spite
of the treatment, of approximately 22 percent. Just as many children did
not receive the serum but were treated in a different manner. In this
group the mortality rate was double, approximately 44 percent. These 240
or 250 children who died, and who were in that control group could
certainly have been saved if they had been given the blessing of that
diphtheria serum. But that was in reality the purpose of that test and
one had to take into account that a larger ratio of fatalities would
result in the group to be compared and that then the value of the serum
would be recognized.
Q. I think that this example will suffice. In that case you are really
admitting that an objection against experiments in Buchenwald could not
be justified?
A. During the war I did not work on any disease as ardently as on
typhus. I treated thousands of patients who fell ill with typhus and
examined them. I believe that in the case of such an experience one
gains some knowledge of the disease. I often considered that question
and I hold the opinion that my objection at the time was perhaps not
justified by events. On the other hand, it is my opinion that in the
case of every task one has to keep the question in mind whether one is
in a position to execute that task. I must admit even today that in
spite of the success of the experiments, which cannot be denied, I would
act similarly in yet another position and would assume the same attitude
as I assumed at that time. Even today I would not be prepared to carry
out any such experiments personally or have them carried out upon my
responsibility, although success undoubtedly would come about.
EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROSE[19]
_DIRECT EXAMINATION_
* * * * *
DR. FRITZ: What do you know about the reasons for this protest (against
experiments) being ignored and the typhus experiments being carried out
in spite of it?
* * * * *
DEFENDANT ROSE: The Buchenwald experiments (with typhus vaccine) had
four main results. First of all, they showed that belief in the
protective effect of Weigl vaccine was a mistake, although this belief
seemed to be based on long observation. Secondly, they showed that the
useful vaccines did not protect against infection, but almost certainly
prevented death, under the conditions of the Buchenwald experiments.
Thirdly, they showed that the objections of the biological experts to
the vitelline membrane vaccines and to the lice vaccines were
unjustified, and that vitelline membrane, rabbit lungs, and lice
intestines were of equal value. We learned this only through the
Buchenwald experiments. This left the way open to mass production of
typhus vaccines.
The Buchenwald experiments showed in time that several vaccines were
useless. First, the process according to Otto and Wohlrab, the process
according to Cox, the process of Rickettsia Prowazeki and Rickettsia
murina, that is, vaccine from egg cultures; secondly, the vaccines of
the Behring works which were produced according to the Otto process, but
with other concentrations; finally the Ipsen vaccines from mouse liver.
The vaccines of the Behring works were in actual use at that time in
thousands of doses. They always represented a danger to health. Without
these experiments the vaccines, which were recognized as useless, would
have been produced in large quantities because they all had one thing in
common: their technical production was much simpler and cheaper than
that of the useful vaccines. In any case, one thing is certain, that the
victims of this Buchenwald typhus test did not suffer in vain and did
not die in vain. There was only one choice, the sacrifice of human
lives, of persons determined for that purpose, or to let things run
their course, to endanger the lives of innumerable human beings who
would be selected not by the Reich Criminal Police Office but by blind
fate.
How many people were sacrificed we cannot figure out today; how many
people were saved by these experiments we, of course, cannot prove. The
individual who owes his life to these experiments does not know it, and
he perhaps is one of the accusers of the doctors who assumed this
difficult task.
I. Medical Ethics
1. GENERAL PRINCIPLES
a. Introduction
In a case involving the charge that human beings were subjected to
medical experiments of many kinds under varying circumstances, it was
inevitable that questions of medical ethics became a part of the proof
and the argumentation.
The prosecution’s rejoinder to the statement of the defendant Rose
appears on page 71. As illustrations of the defense position on medical
ethics, extracts have been taken from the final pleas for the defendants
Gebhardt and Beiglboeck. These appear on pages 71 to 77. Considerable
testimony was given on this question by defendants and by expert
witnesses, and appears on pages 77 to 86. Selections from this testimony
have been taken from the direct examination of the defendant Rose, the
cross-examination of the prosecution witness Professor Werner
Leibbrandt, and from the direct examination of the prosecution witness
Dr. Andrew C. Ivy.
The judgment of the Tribunal deals at some length with the medical
ethics applicable to experimentation on human beings (p. 181 ff.).
b. Selection from the Argumentation of the Prosecution
_EXTRACT FROM THE CLOSING STATEMENT
OF THE PROSECUTION_[20]
* * * * *
In view of the clear and unequivocal proof of the defendant Rose’s
participation in the typhus murders of Buchenwald he can only plead that
he didn’t enjoy doing what he did, that he objected to the experiments
at the Third Meeting of the Consulting Physicians of the Wehrmacht in
May 1943. But this is his condemnation, not his salvation. In March 1942
he was in Buchenwald and saw what was being done. In May of the same
year he asked Mrugowsky to test a vaccine for him in those experiments.
Four inmates were killed as a result. In May 1943, he objected to the
experiments in what he describes as strong terms. But in December, he
was again instigating still another experiment which resulted in the
murder of six men. He is a living example of a man who could have
abstained from participating in these crimes without threat of harm to
his person or position by any agency of the Nazi Government. He was not
arrested and tried by the SS because of his objection. He was not
committed to a concentration camp. In spite of that, he voluntarily
participated in these same crimes to which he said he objected. With his
knowledge, prestige, and position, he is even more culpable than the
miserable and inexperienced Ding who actually performed the experiments
in the murder wards of Buchenwald.
* * * * *
c. Selections from the Argumentation of the Defense
_EXTRACT FROM THE FINAL PLEA FOR
DEFENDANT GEBHARDT_[21]
* * * * *
_The Principles of Medical Ethics and the Applicable Law_
During the hearing of evidence, views were repeatedly given on the
question of which principles of medical ethics are to be considered when
performing experiments on human beings. In my opening statement before
the evidence was submitted I pointed out that in the case of these
defendants there is no reason to examine fundamental questions of
medical ethics in these proceedings. Law and ethics are measured by
different standards which sometimes contradict each other. The same
applies to the principles of general ethics as well as to those of a
particular profession. A deed offending the recognized principles of
medical ethics does not necessarily constitute a crime. Only the cogent
precepts of the law can be used as the basis for a verdict, and not the
unwritten regulations and convictions existing inside a profession.
However, it cannot be concluded from this that the principles of medical
ethics and their practical application were of no importance at all in
these proceedings. These principles cannot, of course, be applied
directly. At the same time there is no doubt that the principles of
medical ethics and above all their practical application in recent
decades can play an indirect part insofar as they have to be taken into
consideration when interpreting the law. However, evidence has now
proved that in recent decades and even earlier, numerous experiments
were carried out on human beings, and, moreover, on persons who did not
volunteer for such purpose. In this respect I refer to the statements of
the expert Professor Dr. Leibbrandt, witness for the prosecution. I
furthermore refer to the extensive evidence submitted by the prosecution
on this question from which it appears that in numerous cases
experiments were carried out on human beings, of the nature and degree
of danger of which they could not have been aware and to which they
would never have agreed voluntarily. The only conclusion which can be
drawn from these facts is that during recent decades views on this
question have changed in the same way as the relations between the
individual and the community in general have changed. In this connection
I need not give the detailed reasons which led to this development. It
is a fact that, at least in Europe, the state and the community have
taken a different attitude toward the individual. However differently
one may write about the change in these relations in detail, one thing
is certain, namely, that the state has more and more taken possession of
the individual and limited his personal freedom. This is evidently one
of the accompanying facts of technics and the modern mass-state. It must
be added that the development of medicine in the course of the last
decades has led to discriminating formulations of questions which can no
longer be solved by means of the laboratory and animal experiments.
The evidence has shown that not only in Germany and perhaps not even
primarily in this country, the reorganization of the relationship
between community and individual has resulted in new methods in the
sphere of medical science. In nearly all countries experiments have been
performed on human beings under conditions which entirely exclude
volunteering in a legal sense.
Immediate consequences arise for the interpretation of the law from this
change of medical views and above all from the change in medical
practice, since the essence of the law is universal and abstract and
naturally does not state the limits and the conditions under which
experiments on human beings are permissible and the borderline of the
criminality of such an experiment. The real practice regarding this
question is all the more important for the interpretation of the law
since almost every law, including Control Council Law No. 10, contains
standard rudiments of case facts, which means that determination in a
particular case can only be the outcome of a judicial judgment. No
special proof is needed to show that the question when and within what
limits medical experiments are admissible calls for a judicial judgment,
and that this cannot be established without taking practical experience
into consideration, not only in Germany but also outside Germany. The
standard rudiments of case facts are part of the legal facts and deal
with illegality as characteristic of the punishable act. Actual medical
practice inside and outside Germany, however, has not only to be
considered when examining the question as to whether the actions
constituting the subject of the indictment are illegal, but above all it
is fundamentally important when answering the further question as to
whether the actions constituting the subject of this procedure
constitute a criminal offense. In view of the fact that a criminal
offense is not likely to be a permanent psychological fact but a
standard computed fact in the sense of a personal reproach, the Court
for this reason also will not overlook the fact that particularly during
the last years, even outside Germany, medical experiments were performed
on human beings who undoubtedly did not volunteer for these experiments.
The unity of law and the indivisibility of its basic idea exclude
judging one and the same fact simultaneously according to different
legal principles and standards.
I shall comment later on the question of whether the defendants in the
performance of the experiments which constitute the indictment acted
primarily in their capacity as physicians, or whether their conduct—if
a just decision is to be rendered—must no longer be regarded from the
viewpoint of war service as medically trained research scientists.
* * * * *
_EXTRACT FROM THE FINAL PLEA FOR
DEFENDANT BEIGLBOECK_[22]
* * * * *
If one confronts the doctor with that type of scientist who, with the
test tube in his laboratory, with the syringe or the surgical knife in
his hand, steps on animal and human corpses, in order so fanatically to
satisfy his scientific instinct, then we very decidedly object to such a
scientist. We have found this type in the documents of this trial in the
person of Dr. Rascher, whose name casts a dark shadow over the
proceedings. Dr. Leibbrandt, the protector of medical ethics, would
therefore have rendered a good service to German science if, in his
capacity as a psychiatrist, we had pointed out that Rascher, this sadist
and psychopathist, had nothing whatsoever to do with real science.
It is my duty as a defense counsel to emphasize energetically that it is
not permissible to construct from local coincidences any connection
between my client and Rascher and his system.
The scientific research worker sees his task in the discovery of the
unknown in order to equip the doctor with new weapons in his fight for
human life. I briefly want to demonstrate with two examples why the
modern medical profession cannot renounce the scientific research work
that was impossible without great efforts and sacrifices (1) giving a
brief description of the development of modern surgery; (2) mentioning
the school to which the defendant Beiglboeck belonged as a pupil and a
teacher. I do not give this second example in order to glorify my
country, but because the particular influence of its teachers is
decisive for the spiritual standard of the personality.
At the beginning of modern surgery stands that mighty figure of English
surgery, Joseph Lister, whose great idea it was that the surgeon should
not fight the inflammation of the wound but should prevent its cause,
i.e., germs entering externally.
Thanks to bacteriology, anti-sepsis was changed into asepsis.
Over the entrance gate of the General Hospital in Vienna we read the
words “Saluti et solatio aegrorum—Dedicated to the health and
consolation of the sick.” These words not only demand the highest
accomplishment of the doctor’s duties but are the motive for the most
successful work in the large field of medical research. Theory and
practice joined together in order to become a piece of living humanity.
I would go beyond the limits of my task if I mentioned all the names
that spread the glory of Vienna University throughout the world. But
their penetration into the world of the unknown was always a hazardous
enterprise which demanded courage and sacrifice.
I want to quote the words of one of the great doctors, Professor
Wagner-Jauregg, who says in his book “Fever and Infection Therapy”,
“The vaccination against malaria was certainly a risk, the
outcome of which could not be foreseen. It was dangerous for the
patient himself and this to a much higher degree than the
treatment with tuberculin and other vaccines, and it also was a
danger for the surroundings and even for the community.”
And, on page 136, it states “Three patients died after having been
vaccinated with blood infected with malaria tropica and not with malaria
tertiana”; and “The tragic outcome of this experiment was discouraging,
and only a year later could the author decide to proceed with the
malaria vaccinations * * *.”
Nobody talks of these victims today, but Wagner-Jauregg’s revolutionary
discovery is known and adopted throughout the world and has become the
common property of all peoples for the benefit of suffering mankind.
These doctors who knew that the fight against disease and death was a
thorny path were all more than ready to sacrifice their own lives.
The real scientist and the real doctor, therefore, do not oppose each
other. However, the scientist must not forget that nature is the
expression of the divine will and that only this cognition can save him
from the “hybris”, the boundlessness which for the Greek tragedians was
the greatest vice of mankind.
Above all, the words of the greatest German physician, Theophrastus
Bombastus von Hohenheim, called Paracelsus, must be applied to both
scientist and doctor “The doctor grows with his heart, he comes from God
and is enlightened by Nature—the best of all drugs is Love.”
My learned colleagues have compiled a long list of documents on human
experiments especially from the Western democracies. It would be unjust,
however, to conceal the enormous benefit of the human experiment. The
fact that Paul Ehrlich dared to release his drug “Salvarsan” before it
had been sufficiently tested saved thousands from the dangerous
consequences of one of the worst epidemics. The fact that Strong took
the responsibility upon himself to perform the probably very dangerous
experiment with plague bacilli made it possible to vaccinate thousands
of persons and to save them from almost certain death. The fact that
Strong was in a position to prove that beri-beri was a disease caused by
a deficiency, and that Goldberger proved the same for pellagra, made it
possible to fight this deficiency and to liberate entire countries from
one of their worst diseases.
With regard to the criminal law, however, and the judgment of crimes
against humanity, it is the decisive result that in other countries,
too, under their own generally prevailing medical and ethical
convictions, doctors carried out similar or the same experiments for the
benefit of scientific research or in consideration of a crisis in their
country.
When I said that the surroundings had an influence on the doctor’s
attitude, I did not mean the second determining factor of our
individuality, the material influence on the organism which might modify
or mitigate the influence of the actual conditions at the time upon the
decisions of a physician.
Concentration camp, militarism, and peoples’ court—three important
pillars of the Third Reich—they have collapsed. They are not to be
forgotten, however, when examining the guilt of the individual. Every
German had to fear them in one form or another. And then came the war.
War was once called “the steel bath of the peoples”. Heraklit called it
“the father of all things”. I can only repeat the judgment of the IMT
that “war is the evil itself.” This is true to the highest degree for
the last war. It was a total, a terrible war. Even medical science on
both sides had to assist warfare. I have before me the index of the best
known scientific English periodicals from the war period, “Lancet” and
“Nature”. Now, after the war, General T. J. Betts of the United States
War Department and Professor W. T. Sinsteat of the British Supply Office
have declared that the captured German scientific accomplishments during
the war were of the greatest use for the economic progress of British
and American industry. Even the terrible freezing experiments of Dr.
Rascher proved to be of the greatest use for America in the war against
Japan. (_Becker-Freyseng 31, Becker-Freyseng Ex. 18._) And what about us
soldiers? We stood in the air-raid shelters, the Socialist beside the
Party member. We did not complain. We saw villages go up in flames,
innocent women and children become the victims of air raids. We saw our
country, the Fatherland, in distress, and, even if we hated Hitler and
his followers like the plague, we believed that we had to fulfill our
duty to our country to the bitter end. One cannot explain these things,
they have to be experienced. In such times a doctor is placed
unwillingly between Scylla and Charybdis, between his concept of his
profession and his duty as a soldier. It is easy today to say with
pathos from an academic chair “_numquam nocere!_” A man does not say
now, “I was a member of the resistance. Day in and day out I was trying
to help persons who were racially and politically persecuted.” He says,
“Then, like everyone else, I merely did my duty.”
Abraham Lincoln, one of the greatest Americans, said in a speech before
the American Congress in 1862, “The dogmas of the quiet past are
inadequate to the stormy present. * * * In the face of new events we
must think and act in a new way.”
With this I intend to conclude my statements about medical ethics and to
repeat the words which Liek wrote at the end of his book, “The Doctor
and His Mission”, “If we want to abolish undesirable conditions in
medicine, we must follow our conscience—to help and to heal, that is,
today as always, the mission of the doctor.”
* * * * *
d. Evidence
_Testimony_
Page
Extracts from the testimony of defendant Rose 77
Extracts from the testimony of prosecution witness Professor 80
Werner Leibbrand
Extracts from the testimony of prosecution expert witness Dr. 82
Andrew C. Ivy
EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROSE[23]
_DIRECT EXAMINATION_
* * * * *
DR. FRITZ: You heard the lecture which Dr. Ding gave on his experiments
at the Third Conference of Consulting Physicians in the Section for
Hygiene and Tropical Hygiene?
DEFENDANT ROSE: Yes. That was the time when I protested openly against
this whole method.
Q. Well, what happened?
A. Dr. Ding gave his lecture in a camouflaged form as in his article for
the Journal of Hygiene and Infectious Diseases. Therefore, the
unsuspecting listener could not tell that it was about experiments on
human beings.
When the discussion began, I commented on the results of these
experiments. That part of my statement is contained in the record of the
conference. It is Document Rose 38, which has already been submitted.
(_Rose 38, Rose Ex. 10._) I do not intend to read these remarks, I
simply want to point out that one can find there what I said about the
technical aspect of the experiments and about the results.
Then I spoke of the ethical side of the whole thing and this part of my
statement has been stricken from the record. I cannot, of course,
reproduce today the exact wording but only the sense of what I said. I
said more or less as follows: As important and as basic as the results
may have been, they were nevertheless achieved at the cost of a number
of human lives. We as hygienists should object against a life and death
experiment being performed as the prerequisite for the introduction of a
vaccine. So far, the customary procedure had been the testing with
animal experiments and subsequent determination of tolerance by human
beings and epidemiological exploitation. This procedure had proved its
value. We had to stick to it and we couldn’t let other political and
state authorities force us to conduct human experiments. I spoke much
longer at the time. I spoke for at least ten minutes. Ding replied that
he could pacify my conscience. The experimental subjects had been
criminals condemned to death. My answer was: I knew that myself. I was
not interested in the individuals concerned but in the principle of
human experiments in testing vaccines. At this comment Professor
Schreiber interrupted the discussion. He said he protested against my
criticism and if we wanted to discuss basic ethical questions we could
do that during the recess. He would have this part of the discussion
stricken from the record and that was done. After the meeting various
participants came to me and we discussed the whole matter. Some agreed
with me; others were convinced that in such an important question human
experiments were justified. Of course, those people who [_sic_] believed
Ding’s assurance that the subjects were criminals condemned to death. I
no longer remember the individual men with whom I talked during the
recess and I don’t know who was in favor and who was against it. The
only one I remember is Professor Mrugowsky because he spoke as an SS
member and the experiments had been conducted by an SS doctor, and
because I thought that Mrugowsky was Ding’s superior in every way. Of
course, I remember that Mrugowsky of all people came and said that, in
principle, he agreed with me, and that he had expressed similar
misgivings to Grawitz and that Grawitz had rejected his misgivings. Then
I also learned from Mrugowsky that Himmler was behind all these
experiments.
* * * * *
DR. FRITZ: Did you later discuss the matter of experiments on human
beings before a large group of people?
DEFENDANT ROSE: Yes. That happened once again before a large number of
people, but it was not about typhus experiments. It must have been about
October 1944. The question at hand then was grippe. There was a meeting,
a rather large meeting at which grippe vaccine was discussed. A number
of people reported on the vaccines which they had developed in the
laboratory. Among others, Professor Herzberg reported on a vaccine made
from dead grippe virus, and Professor Haagen on a vaccine made from
living avirulent grippe virus, which he had already tested on personnel
at the Strasbourg clinic. Someone in the meeting, I don’t remember who,
suggested that the Haagen tests had been insufficient, and that this
vaccine should be tested on a larger number of persons. There was no
mention of concentration camps then but of student companies. I had
considerable misgivings about such experimental vaccination and
expressed them. I said that I considered the experimental basis
inadequate for these vaccines to be used on human beings. I was not
convinced that the virus had been sufficiently attenuated. There was a
danger that the vaccine would lead to infection, and one could not take
that responsibility on one’s self. It was first of all intended to
observe the effectiveness of the protection by determining whether
people fell ill of grippe in natural ways after being vaccinated. Then
someone else made the suggestion that this would take too long, and we
did not know whether there would be an influenza epidemic during that
time, and that therefore after the vaccines the subject should be
infected with a virulent virus. Since I had already expressed objections
to the vaccination, I opposed this proposal even more strongly, and the
result of this discussion was that infections were not carried out, but
it was decided to carry out the vaccination. Whether these vaccinations
were carried out or not, I do not know. At any rate I read no order to
the effect that anyone should perform the vaccinations nor did I ever
read a report that the vaccinations were carried out. Only later on in
imprisonment did I hear that similar experiments, such as were then
discussed, and of which I disapproved, were carried out by the British
Medical Service on German PW’s. Genzken probably participated personally
in this, but I had heard about this before in the internment hospital
Karlsruhe where there were people who had experienced these
vaccinations.
* * * * *
EXTRACTS FROM THE TESTIMONY OF PROSECUTION WITNESS
PROFESSOR WERNER LEIBBRANDT[24]
* * * * *
_CROSS-EXAMINATION_
DR. SERVATIUS: Witness, you stated that the performance of experiments
on human beings, as is the subject of the indictment here, can be
ascribed to biological thought. What do you mean by biological thought?
WITNESS LEIBBRANDT: By biological thought I mean the attitude of a
physician who does not take the subject into consideration at all, but
for whom the patient has become a mere object, so that the human
relationship no longer exists, and a man becomes a mere object like a
mail package.
Q. You spoke of thinking as a biologist. Do I understand that you see
therein an action belonging to biological thought?
A. An exaggeration of the purely mechanical or biological point of view,
because the physician is not merely a biologist, he is also a biologist.
Primarily, however, a physician is a man who assists the human being and
not a scientific judge of biological events.
Q. Could there not be other causes for the experiments, such as a
collective state thinking?
A. Yes.
Q. Witness, you used the expression “demoniac order”. What do you mean
by that?
A. By demoniac order I mean the following: If I define as a basis for
medical activity merely the maintenance and safeguarding of the
substance of the nation according to blood, the result is that
everything which falls outside this pretense has to be cleared away.
That is a mild expression of what actually happened, namely,
extermination.
Q. Then your demoniac order only refers to the blood aspect. Could it
not be applied to the purely state collective aspect as well?
A. Could you give an example so that I can understand it better?
Q. I mean that experiments were undertaken and that the voluntary act of
the individual is replaced by the act of the state, namely, by the
voluntary approval given by the state.
A. Between the collective idea and the state order on the one hand and
the medical individual on the other, there stands something rather
important—the human conscience.
* * * * *
Q. Professor, if all these experiments were actually conducted, and also
as you said this morning and as Moll’s book shows, Moll alone published
approximately six hundred works about thousands of such experiments (on
human beings), must one not say that wide circles of medical men judge
the question of experiments on human beings under certain conditions
differently from you—from an ethical point of view?
A. That I cannot say, because even Moll writes at the end of this work
that it is part of a physician’s morals to restrain his urge for natural
research in favor of the basic medical attitude as laid down in the oath
of Hippocrates, namely, to cause no arbitrary harm to his patient.
Q. But in your opinion, Professor, how should a doctor work in the
interest of suffering humanity in cases where, as you have just said,
there is no possibility of experiments on animals?
A. The concept of humanity is a very dangerous concept. It is most
dangerous of all for the physician. For the physician, the individual
stands above all humanity and the individual unfortunately has sunk very
low in these last few years.
Q. I believe that you have not quite answered my question. I asked: How
do you think the doctor should solve certain questions even in the
interest of the individual—questions which cannot be tested with animal
experiments and test tubes, as is the case with malaria for instance.
This is a problem which must be cleared up if he is to help his
suffering patients.
A. That is naturally a very difficult question. But in the end the main
thing will always be that a risk must have certain limits.
Q. Thank you. Now I come to another point. This morning, Professor, you
expressed disapproval about a book which the defendant Mrugowsky wrote
on medical ethics. May I ask, have you read this book?
A. Yes.
Q. Do you know Mrugowsky personally?
A. No.
Q. Then you do not know his ethical point of view?
A. I said that it was quite an ironical joke of world history for
someone to quote the high medical ethics of Hufeland in the form of
excerpts from his writings, as far as I remember, with a few connecting
words and to combine these quotations in a modest little volume, while
on the other hand we now know how it was entangled organizationally with
the deeds under discussion here. I am only speaking about the
entanglement and not about the objective guilt which has not yet been
proved.
Q. And from where else do you infer Mrugowsky’s entanglement with the
facts under discussion here, apart from the fact that he is one of the
defendants indicted?
A. After all, he was the Chief of the SS Hygienic System, and the
medical principles of an ethical nature personified by the SS have
become clear to me during the last few years. There seems to me to be a
large gap between these two things, between these deeds of SS medical
ethics and the ethics of Hufeland. I might perhaps understand how a man
like Mr. Haubhold could be enthusiastic about a one-sided interpretation
of political medicine by Josef Peter Frank in the 18th century. But I
cannot understand how the SS ethics can be connected up with the honest
ethics of Christian Hufeland.
Q. Professor, you just told us you do not know Mrugowsky at all?
A. No.
Q. Then how can you express a judgment on his personal ethical attitude?
You are merely judging from the fact that he belonged to the SS. Before
you express such an opinion as you are doing, before you talk about a
joke of world history, must you not first know the personal attitude of
the person you are criticizing, and is it not quite possible that his
personal attitude was such as is expressed in this book?
A. I don’t believe that one can hold a leading position in the SS and
then talk about such personal ethics, unless, of course, in ethical
questions one does what is called double bookkeeping.
Q. But you admit that all your criticism is pure assumption, in no way
based on personal knowledge of the person criticized?
A. I do not know Mr. Mrugowsky.
Q. Thank you. I have no more questions.
EXTRACTS FROM THE TESTIMONY OF PROSECUTION EXPERT
WITNESS DR. ANDREW C. IVY[25]
_DIRECT EXAMINATION_
* * * * *
MR. HARDY: Now, Professor Ivy, before adjournment you were beginning to
discuss medical ethics in the United States.
* * * * *
Do you have there also the principles and rules as set forth by the
American Medical Association to be followed?
WITNESS DR. IVY: Yes.
Q. What was the basis on which the American Medical Association adopted
those rules?
A. I submitted to them a report of certain experiments which had been
performed on human subjects along with my conclusions as to what the
principles of ethics should be for use of human beings as subjects in
medical experiments. I asked the association to give me a statement
regarding the principles of medical ethics and what the American Medical
Association had to say regarding the use of human beings as subjects in
medical experiments.
Q. Would you kindly pass up to me that ruling of the principles put out
by the American Medical Association? This apparently isn’t what I am
referring to, Doctor. Do you have a publication which is published by
the American Medical Association entitled “Principles of Ethics
Concerning Experimentation on Human Beings”?
A. Not with me here.
Q. Well now, you have, first of all, a basic requirement for
experimentation on human beings, “(1) the voluntary consent of the
individual upon whom the experiment is to be performed must be
obtained.”
A. Yes.
Q. “(2) The danger of each experiment must be previously investigated by
animal experimentation,” and “(3) the experiment must be performed under
proper medical protection and management.”
Now, does that purport to be the principles upon which all physicians
and scientists guide themselves before they resort to medical
experimentation on human beings in the United States?
A. Yes. They represent the basic principles approved by the American
Medical Association for the use of human beings as subjects in medical
experiments.
JUDGE SEBRING: How do the principles which you have just enunciated
comport with the principles of the medical profession over the civilized
world generally?
A. They are identical, according to my information. It was with that
idea in mind that I cited the principles which were mentioned in this
circular letter from the Reich Minister of the Interior dated 28
February 1931 to indicate that the ethical principles for the use of
human beings as subjects in medical experiments in Germany in 1931 were
similar to those which I have enunciated and which have been approved by
the House of Delegates of the American Medical Association.
MR. HARDY: Is it possible that in some field of scientific research
investigation by animal experimentation would be inadequate?
A. Will you repeat that question? I did not get it.
Q. Is it possible in some fields of medical research that
experimentation or investigation on animals would be inadequate?
A. Yes. The experiment on trench fever is a very good example.
Q. How would you investigate the danger of the experiment prior to
resorting to the use of human beings?
A. The hazard would have to be determined by a careful study of the
natural history of the disease.
Q. Does malaria also fall into that category?
A. We can use animals to some extent in malarial studies, canaries and
ducks, for example, develop malaria; and in research designed to
discover a better drug for the treatment of malaria we can use Avian
Malaria as a sort of screen method to detect which compounds might be
employed with some assurance and might be effective in human malaria. In
that way we decrease the random and unnecessary experimentation on man.
Q. To your knowledge have any experiments been conducted in the United
States wherein these requirements which you set forth were not met?
A. Not to my knowledge.
MR. HARDY: Your Honor, I have no further questions concerning medical
ethics to put to Dr. Ivy; however, I do have one question concerning the
high-altitude experiments which I wish to go back to at the conclusion
of that complex, in high altitude, and I will have completed my direct
examination.
PRESIDING JUDGE BEALS: The Tribunal has no questions of the witness. Do
I understand that you have completed your examination of the witness?
MR. HARDY: No. I have not; I have a further question to put to him, but
I was going to leave the case of medical ethics.
PRESIDING JUDGE BEALS: We have no questions on that subject; you may
proceed.
MR. HARDY: Dr. Ivy, in medical science and research is the use of human
subjects necessary?
WITNESS DR. IVY: Yes, in a number of instances.
Q. Is it frequently necessary and does it perform great good to
humanity?
A. Yes. That is right.
Q. Do you have an opinion that the state, for instance, the United
States of America, could assume the responsibility of a physician to his
patient or experimental subject, or is that responsibility solely the
moral responsibility of the physician or scientist?
A. I do not believe the state can assume the moral responsibility that a
physician has for his patient or experimental subject.
DR. SEIDL: I object to this question in that it is a purely legal
question which the Court has to answer.
DR. SAUTER (for the defendants Ruff and Romberg): If I am not mistaken,
a document was read this morning which said that the state assumes the
responsibility. I believe that I am not mistaken in this. I also want to
point out something else, gentlemen, in order to supplement what Dr.
Seidl just said.
The question asked here is always what the opinion of the medical
profession in America is. For us in this trial, in the evaluation of
German defendants, that is not decisive. In my opinion the decisive
question is for example, in 1942, when the altitude experiments were
undertaken at Dachau, what the attitude of the medical profession in
Germany was. From my point of view as a defense counsel I do not object
if the prosecution asks Professor Ivy what the attitude or opinion of
the medical profession in Germany was in 1942. If he can answer that
question, all right, let him answer it, but we are not interested in
finding out what the ethical attitude of the medical profession in the
United States was. In my opinion a German physician who in Germany
performed experiments on Germans cannot be judged exclusively according
to an American medical opinion, which moreover dates from the year 1945
and was coded in the years 1945 and 1946 for future use; it can also
have no retroactive force.
PRESIDING JUDGE BEALS: The first objection imposed by Dr. Seidl might be
pertinent if the question of legality was concerned, a legal
responsibility, that would be a question for a court. The question of
moral responsibility is a proper subject to inquire of the witness.
As to Dr. Sauter’s objection, the opinion of the witness as to medical
sentiment in America may be received. The counsel’s objection goes to
its weight rather than to admissibility. The witness could be asked if
he is aware of the sentiment in America in 1942 and whether it is
different from this of the present day or whether it does not differ.
The witness may also be asked whether he is aware of the opinion as to
medical ethics in other countries or throughout the civilized world. But
the objections are both overruled.
MR. HARDY: It is your opinion, then, that the state cannot assume the
moral responsibility of a physician to his patient or experimental
subject?
WITNESS DR. IVY: That is my opinion.
Q. On what do you base your opinion? What is the reason for that
opinion?
A. I base that opinion on the principles of ethics and morals contained
in the oath of Hippocrates. I think it should be obvious that a state
cannot follow a physician around in his daily administration to see that
the moral responsibility inherent therein is properly carried out. This
moral responsibility that controls or should control the conduct of a
physician should be inculcated into the minds of physicians just as
moral responsibility of other sorts, and those principles are clearly
depicted or enunciated in the oath of Hippocrates with which every
physician should be acquainted.
Q. Is the oath of Hippocrates the Golden Rule in the United States and
to your knowledge throughout the world?
A. According to my knowledge it represents the Golden Rule of the
medical profession. It states how one doctor would like to be treated by
another doctor in case he were ill. And in that way how a doctor should
treat his patient or experimental subjects. He should treat them as
though he were serving as a subject.
Q. Several of the defendants have pointed out in this case that the oath
of Hippocrates is obsolete today. Do you follow that opinion?
A. I do not. The moral imperative of the oath of Hippocrates I believe
is necessary for the survival of the scientific and technical philosophy
of medicine.
* * * * *
2. GERMAN MEDICAL PROFESSION
a. Introduction
The position of the German medical profession under the Hitler regime
was the subject of argument by both prosecution and defense. The
prosecution discussed the matter in the early part of its opening
statement (vol. I, p. 29 ff.). Selections from the argumentation of the
defense on this point have been taken from the final plea for the
defendant Blome and from the closing brief for the defendant Rostock.
These appear on pages 86 to 90.
b. Selections from the Argumentation of the Defense
_EXTRACT FROM THE FINAL PLEA FOR
DEFENDANT BLOME_[26]
* * * * *
Furthermore, I have another matter at heart, especially in my capacity
as defense counsel for this defendant: Blome was Deputy Reich
Physicians’ Leader; he will, therefore, to a certain degree, easily be
regarded as the representative of the German medical profession during
the Hitler regime. Now, there is great danger that the entire German
medical profession will be identified with its former leader, Dr. Conti,
and with the crimes he was charged with during this trial; the German
medical profession fears that those crimes which, _in fact_, were
committed by _individual_ doctors, who may have been rightly charged,
are to be taken as typical of the entire medical profession. Indeed,
during the last months we could hear in the press and on the radio that
the entire medical profession was here in the prisoners’ dock;
unfortunately, by thus generalizing, the matter was presented as though
the entire medical profession was corrupt and that the majority of
German physicians had committed such crimes or at least approved them,
as stated here in the indictment at the trial. This conception is wrong
and unjust. The German medical profession numbered about 80,000 members
and if we add the Wehrmacht physicians and the official physicians, one
arrives at about 100,000 physicians. Now let us compare with this total
number the small number of physicians and researchers here in the dock.
There are altogether 20 men. Of what importance is such an insignificant
number for the judging of the entire profession? If out of 5,000 German
physicians one single person committed a crime, it is impossible to draw
a conclusion from these few exceptions regarding the behavior and morals
of the whole class. And even if we suppose that perhaps another few
hundred physicians and researchers not here in the dock had taken part
in the “experiments on human beings” and in the “euthanasia action”, the
number of guilty persons in comparison with the total number of the
entire profession is still too small to entitle one to consider the
entire profession as criminal, and morally inferior because some
individuals committed a wrong.
There is yet another point of view. It stands to reason that not all
experiments on human beings can be excused and justified, not even
during a time of total warfare and under a dictatorship, and no decent
person would ever think of excusing the way and manner in which the
Hitler State carried out the “Euthanasia Program.” However, it is an
incontestable fact that large-scale experiments on human beings cannot
altogether be avoided and are, in fact, carried out throughout the whole
world, and that there are different viewpoints concerning the problem of
euthanasia, even to a limited extent in the circles of conscientious
physicians when this is carried out on a proper legal basis, and when,
in addition, full precautions are taken to prevent abuses. It must not
be overlooked that the deterioration of the medical profession claimed
in connection with this trial is connected exclusively with the problem
of experiments on human beings and with euthanasia, but that no
accusations are made against the professional practice of the German
physicians in any other respects; there are especially no accusations
referring to the relationship between the sick patient and the physician
whom he had chosen as a helper and confidant to restore his health. This
confidence in the attending physician felt by the patient has remained
completely untouched by this trial.
We Germans have our own opinion about our physicians, we know their
conscientiousness and willingness to render help; especially during the
war we have been able to observe and appreciate their readiness to
sacrifice themselves; we know that the good qualities that made the
German physicians and researchers a model in former decades were not
lost during Hitler’s time, and it would be a pity if the abuses, which
have been revealed and proved by this trial, should serve to undermine
the confidence of the German people in their physicians and expose them
to the contempt of all civilized nations.
Individual researchers, who out of ambition or a passion for research
did not value a human being’s life more than that of a rabbit, should
not be considered representative of the German physicians’ profession,
nor should those physicians of the concentration camps, who for lack of
a conscience or for some other wicked reason gave fatal injections to
prisoners or tortured them to death, be regarded as representative of
the German medical profession. No. Representative of a model German
physician during Hitler’s time, too, is the non-political, practicing
physician, who, even if he did perhaps formally belong to the Party,
strongly opposed from the bottom of his heart all kinds of violence and
intolerance, who is closely bound to his nation and its needs, the
practicing physician who cared for his patients in the most devoted
manner day after day and night after night during the time of total war
and fearful bombardments, which is especially hard for a physician; or
who as military physician served at the front far from home, from his
practice, from his family, fairly sharing all the hardships, dangers,
and privations with his soldiers. And the surgeon who, as director of
his clinic, operated and cured and helped from morning till night
wherever he could help without having time to breathe, let alone to take
part in political activity, he also is representative of the model
German physician during Hitler’s time too.
I do not know what verdict you will arrive at respecting one or the
other of these defendants; but, as defense counsel of the former Deputy
Reich Physicians’ Leader, I beg you to make it clear by your verdict
that in judging the defendant, if you must condemn him, you do not
condemn and defame the entire German medical profession, but that the
abuses which were committed were individual acts such as, perhaps,
happened in all professions during Hitler’s time without necessitating a
condemnation of the entire profession. These were individual acts
arising perhaps partly from personal criminal tendencies of individual
fanatics, partly from being connected with the excesses of a total war
in a dictatorship of unscrupulous violence.
If beside the 23 defendants there is a 24th sitting in the dock,
invisible to our eye, he is not of the German medical profession but the
SS spirit of Himmler and of a dozen other murderers of millions of
people. This spirit might have led a fanatic to forget his professional
ethics and to commit crimes. But the entire medical profession remained
sound and conscious of its duty.
May your verdict not completely rob the German people of their
confidence in their physicians but restore it to them, and I have no
doubt that after the present crisis has been overcome and in more normal
circumstances, the German medical profession will prove to its people
that as a body it never forgot nor will ever forget the professional
ethical commandments of the Hippocratic oath.
* * * * *
_EXTRACT FROM THE CLOSING BRIEF FOR
DEFENDANT ROSTOCK_
_Introduction_
Mr. President, your Honors:
The great English historian and sociologist, Thomas Carlyle, once said,
“Your life, and were you the humblest of human beings, is not a wild
dream but a lofty fact.” I do not want to speak to you in this courtroom
without first recalling this saying and thereby seeing before my eyes
the picture of the great number of our fellow human beings whose lives
have really become a wild dream. The fact on which this trial is based,
that defenseless human beings were used by doctors of my country for
experiments and in part died after suffering tortures, cannot be denied.
I, myself, would doubt the clarity of my judgment as a German jurist if
I did not realize that general human rights, such as the fundamental
standards anchored in all civilized nations, have been violated thereby.
Medical science should bring help and healing to suffering humanity. I
am proud to state that it was German doctors who, in the last century,
saved millions of human beings from the most serious and fatal diseases
by their research. Let me remind you only of names such as Robert Koch,
Emil von Behring, Paul Ehrlich, Theodor Billroth, and August Bier, or
medicines such as Germanin, atabrine, Salvarsan, diphtheria serum,
tetanus serum, and many others. If it were possible to achieve such
decisive results in any other way, this would only confirm the actual
truth, that no one, no matter how highly placed and no matter how
important his aims, has the right to lower other human beings to the
level of guinea pigs by force. How could a man venture to dispose in
that way of the life and health of his fellow men, be they ever so
humble? It seems to me that this involves a fundamental contradiction to
the duty of the doctor, a violation of the dignity of the individual,
and a presumption which cannot remain without horrible results. There
may be doubtful cases, there may be borderline cases, but the solution
of these questions can be based on only one principle, which is that all
creatures in human form have an equal right to life and health. Humanity
would be in a sad state if again and again there were not volunteers
from the ranks of physicians and laymen who made themselves available
for experiments, conscious of their contribution toward saving and
healing other human beings. But how can a man dare simply to designate
others to suffer and die, when they, too, like to live and be free from
want and fear, just like he himself? * * *
3. MEDICAL EXPERIMENTS IN OTHER COUNTRIES
a. Introduction
The practice of medical experimentation upon human beings in other
countries was brought out by the defense in an effort to show that the
medical experimentation in which these defendants engaged was not
criminal. Extracts from the argumentation of the defense have been
selected from the closing briefs for the defendants Karl Brandt and
Ruff. These appear below on pages 90 to 93. From the evidence on this
question, the following appear below on pages 95 to 121: Selections from
defense documents, followed by extracts from the cross-examination of
one of the prosecution’s expert witnesses Dr. Andrew C. Ivy and an
extract from the cross-examination of the defendant Rose.
b. Selections from the Argumentation of the Defense
_EXTRACT FROM THE CLOSING BRIEF FOR
DEFENDANT KARL BRANDT_
* * * * *
Reference has furthermore been made to the _extraordinarily large number
of persons_ available _for experiments_. With regard to the experiments
made and on the basis of the evidence of this trial, experiments on a
large scale have been made only in rare cases, and these may be compared
in size with experiments on a large scale outside of Germany, as they
were made even in peacetime; reference is made once more to the malaria
experiment. (_Karl Brandt 1, Karl Brandt Ex. 1._)
If one considers the _number of persons sentenced to death_ who were
subjected to experiments, the number is comparable to those eleven
condemned persons for the poison experiment in Manila. (_Becker-Freyseng
60a, Becker-Freyseng Ex. 59._)
One should compare, among others, the plague experiments by Strong in
1912 on 900 convicts, including an experiment on 42 persons some of whom
were persons sentenced to death, and the typhus experiments by Hamdi on
153 persons. (_Becker-Freyseng 60a, Becker-Freyseng Ex. 59._)
If the number of condemned persons used for experiments in these
proceedings appears high, it should be taken into consideration that the
number of persons sentenced to death under the laws of war is also
unusually high. For the protection of the country, criminal laws are,
during wartime, applied more rigorously in all countries in order to
guarantee safety at home during the absence of the male population at
the front. The number of ordinary criminals who have been punished on
account of acts committed by taking advantage of war conditions, and
especially of the blackout, is already unusually high; it is, therefore,
not even necessary to include herein the persons sentenced for political
crimes.
In this connection the viewpoint of the _English scholar Mellenby_ of
the London School of Hygiene and Tropical Medicine deserves special
consideration. (_Becker-Freyseng 60, Becker-Freyseng Ex. 58._) In the
well-known medical journal “The Lancet” of 1 December 1946, this doctor
quotes particularly the _political conditions_ in Germany as decisive
and as an excuse for the accused persons. One may not, therefore,
subsequently refer to the general conditions in Germany during the war
years in order to judge the _acts committed during this time_ more
severely.
The number of human guinea pigs used in the experiments alleged by the
prosecution is about 2,000. The number of human guinea pigs known to the
defense from published data amounts to more than 11,000 persons. If
among those, minor experiments are also to be found, it may be supposed
that the experiments published contain only the material fit to be known
to the public. Publications show the results but not the sacrifices and
undesirable incidents. That which the defense can present is not the
result of an exhausting criminal investigation.
Looking at only these experiments which were considered fit for
publication, one cannot possibly come to the conclusion that they were
made only with volunteers. I refer in this connection to the compilation
of experiments in Document Karl Brandt 117, Karl Brandt Exhibit 103,
namely 32 experiments on at least 1,580 persons: they are experiments on
persons sentenced to death, prisoners and soldiers, women and girls; the
experiments are often carried out in such a way that it cannot be
presumed the subjects volunteered.
Voluntary service of the human guinea pigs has not been claimed either;
only in two cases has it specifically been pointed out. The volunteers
in one of these experiments were medical students. Outstanding in this
document are 13 experiments with at least 223 children. One cannot
assume that the parents had given their consent. In this connection
reference is made to Document Karl Brandt 93, Karl Brandt Exhibit 29,
regarding the experiments of Professor McCance.
_EXTRACT FROM THE CLOSING BRIEF FOR
DEFENDANT RUFF_
* * * * *
Experiments which time and again have been described in international
literature without meeting any opposition do not constitute a crime from
the medical point of view. For nowhere did a plaintiff arise from the
side of the responsible professional organization, or from that of the
administration of justice, to denounce as criminal the experiments
described in literature. On the contrary, the authors of those reports
on their human experiments gained general recognition and fame; they
were awarded the highest honors; they gained historical importance. And
in spite of all this, are they supposed to have been criminals? No! In
view of the complete lack of _written_ legal norms, the physician, who
generally knows only little about the law, has to rely on and refer to
the admissibility of what is generally recognized to be admissible all
over the world.
The defense is convinced that the Tribunal, when deciding this problem
without prejudice, will first study the many experiments performed all
over the world on healthy and sick persons, on prisoners and free
people, on criminals and on the poor, even on children and mentally ill
persons, in order to see how the medical profession in its international
totality answers the question of the admissibility of human experiments,
not only in theory but also in practice.
It is psychologically understandable that German research workers today
will, if possible, have nothing to do with human experiments and will
try to avoid them, or would like to describe them as inadmissible even
if before 1933 they were perhaps of the opposite opinion. However,
experiments performed in 1905-1912 by a highly respected American in
Asia for the fight against the plague, which made him famous all over
the world, cannot and ought not to be labelled as criminal because a
Blome is supposed to have performed the same experiments during the
Hitler period (which, in fact, however, were not performed at all); and
experiments for which, before 1933, a foreign research worker, the
Englishman Ross, was awarded the Nobel prize for his malaria
experiments, do not deserve to be condemned only because a German
physician performed similar experiments during the Hitler regime. One
should not say that experiments, where different diseases or different
drugs from those referred to in this trial were dealt with, have no
connection with the charges of this indictment because of this
difference and that, therefore, they are of no importance as evidence.
In the foreground there stands the basic question as to the conditions
under which such experiments are permissible; whether they refer to
plague or typhus, to tuberculosis or jaundice, is a secondary question
which concerns the medical expert more than the jurist.
Decisive for this trial is the question whether the conditions under
which experiments were performed by the defendants were those
internationally recognized as for the experiments which were performed
by foreign research workers with the approval of all civilized humanity.
If one wants to arrive at a just and satisfactory decision, one must
disregard the fact that here German research workers are accused. On the
contrary, one has to strive toward obtaining an international basis to
represent the present international opinion on human experiments, one
which for decades, if not for centuries, will form the criterion for the
permissibility of human experiments. We, as jurists, can only render a
service to the development of medical science and therewith to humanity
if we endeavor to establish an incontrovertibly clear view of today’s
international opinion on human experiments, whether these experiments
were performed by Germans or by foreigners.
c. Evidence
_Defense Documents_
Doc. No. Def. Ex. No. Description of Document Page
Karl Brandt 1 Karl Brandt Ex. 1 Extract from “Life” 95
Magazine concerning
malaria experiments on
convicts in U. S.
penitentiaries.
Becker-Freyseng Becker-Freyseng Statement of Professor 95
60 Ex. 58 Dr. Hans Luxenburger and
Dr. Hans Halbach
concerning the report on
experiments on human
beings in world
literature
(Becker-Freyseng 60a,
Becker-Freyseng Ex. 59).
Becker-Freyseng Becker-Freyseng Extracts from report on 96
60a Ex. 59 experiments on human
beings in world
literature; excerpts from
various newspapers and
medical weeklies.
Karl Brandt 117 Karl Brandt Excerpts from the 103
Ex. 103 dissertation “Infection
Experiments on Human
Beings” by Alfred
Heilbrunn of the Hygiene
Institute of the
Wuerzburg University,
1937, concerning
experiments on human
beings in other
countries.
_Testimony_
Extracts from the testimony of prosecution expert witness Dr. 110
Andrew C. Ivy.
Extract from the testimony of defendant Rose 118
PARTIAL TRANSLATION OF DOCUMENT KARL BRANDT 1
KARL BRANDT DEFENSE EXHIBIT 1
EXTRACT FROM “LIFE” MAGAZINE CONCERNING MALARIA EXPERIMENTS ON CONVICTS
IN UNITED STATES PENITENTIARIES
_Extract from “Life”, Vol. 18, Nr. 23 of June 4, 1945_
_Prison Malaria_
Convicts expose themselves to disease so doctors can study it.
In three United States penitentiaries men who have been imprisoned as
enemies of society are now helping science fight another enemy of
society. At the United States Penitentiary in Atlanta, the Illinois
State Penitentiary, and New Jersey State Reformatory some 800 convicts
volunteered to be infected with malaria so medical men can study the
disease. The experimenters, who are directed by the Office of Scientific
Research and Development, have found prison life ideal for controlled
laboratory work with humans. Their subjects all eat the same food, sleep
the same hours, and are never far away. The prisoners are not pardoned
or paroled for submitting to infection.
Prison malaria experiments underline the fact that malaria is still a
very serious medical problem. In the United States there are 1,000,000
cases a year. The existing drugs (mainly quinine and atabrine) control
malaria but cannot keep it from recurring long after the original
infection. The goal of malaria research is to find a new drug which will
cure the disease permanently.
PARTIAL TRANSLATION OF DOCUMENT BECKER-FREYSENG 60
BECKER-FREYSENG DEFENSE EXHIBIT 58
STATEMENT OF PROFESSOR DR. HANS LUXENBURGER AND DR. HANS HALBACH
CONCERNING THE REPORT ON EXPERIMENTS ON HUMAN BEINGS IN WORLD LITERATURE
(SEE ALSO BECKER-FREYSENG 60a, BECKER-FREYSENG EX. 59)
_Experiments on Human Beings as Viewed in World Literature_
I, Professor Dr. med. Hans Luxenburger, specialist in nervous diseases,
resident at 35, Liebigstrasse, Munich, and I, Dr. ing. and Dr. med.
Erich Hans Halbach, physician, of Prien-Chiemsee, have first been
advised that we shall render ourselves liable to punishment if we give a
false affidavit. We declare under oath that we have ascertained the
correctness of the enclosed excerpts of scientific works and books, that
is to say, with respect to the excerpts bearing the following numbers:
1, 5, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 26,
27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 42, 44, 46, 47,
48, 54 * * * by comparison with the original; with respect to the
numbers 2, 3, 4, 6, 7, 9, 19, 41, 43, 45, 49, 50, 51, 52, 53 by
certified photostatic copies, copies, translations or excerpts submitted
to us by attorney at law Dr. Edmund Tipp.
We made the report “Experiments on Human Beings as Viewed in World
Literature” to the best of our knowledge for presentation as evidence
before the American Military Tribunal I in the Palace of Justice,
Nuernberg, Germany.
Munich, 14 April 1947
[Signed] Prof. Dr. Hans Luxenburger
Dr. Hans Halbach
PARTIAL TRANSLATION OF DOCUMENT BECKER-FREYSENG 60a
BECKER-FREYSENG DEFENSE EXHIBIT 59
EXTRACTS FROM REPORT ON EXPERIMENTS ON HUMAN BEINGS IN WORLD LITERATURE;
EXCERPTS FROM VARIOUS NEWSPAPERS AND MEDICAL WEEKLIES
_Excerpt from the Certified Translation_
_Author_: Ladell, W.S.S. (Med. Research Committee).
_Title_: Effects after Taking Small Quantities of Sea-Water. An
experimental study. (From the research staff, National Hospital, Queen
Square).
_Quotation_: The Lancet No. 6267 (October 1943) page 441.
_Purpose_: Contribution to the physiology of persons who received the
same food and drinking water as shipwrecked persons in lifeboats.
Studies regarding the effect of the drinking of sea water on the
chloride balance, urea excretion, urine amount, and loss of body weight
of shipwrecked persons.
_Procedure_:
1. Three experimental persons, after one day without water, drank
240 cc. fresh water and 180 cc. sodium chloride 3.5 percent solution
daily for 4½ days.
2. Ten experimental persons, after one day without water, drank
540 cc. fresh water and 180 cc. sea water daily for 5 days; the
following 4 days, 5 of these experimental persons drank 60 cc. fresh
water daily, the following 4 days the other 5 experimental persons
drank 60 cc. fresh water and 180 cc. sea water daily.
3. Eleven experimental persons, after one day without water, drank
540 cc. fresh water daily for 5 days; 6 of these experimental persons
received 60 cc. water and 180 cc. sea water daily for the following 4
days.
4. Two experimental persons, after one day without water, drank
370 cc. fresh water each for 2 days, for the following 3 days daily
240 cc. fresh water each, plus 400 cc. sea water, the next 36 hours
only 600 cc. sea water.
All experimental persons moreover took only sea-rescue emergency
rations in limited quantities, with 1 gr. sodium chloride at the
most.
_Experimental persons_: 17 experimental persons from a naval hospital
submitted “voluntarily to the severe experimental conditions”, without
physical injury.
_Excerpt from Certified Report 19_
_Author_: Cameron and Karunaratne.
_Quotation_: Journal of Pathology and Bacteriology 42, 13 (1936).
_Purpose_: Studies of the poisonous effect of carbontetrachloride on
human beings (report).
_Experiment_: Carbontetrachloride is administered to healthy criminals
before their execution. The effect of the poison on the liver is
determined by way of an autopsy. (Therapeutical normal doses 3.0 cc.:
maximum dose 5.0 cc.)
2 test persons receive twice 6 cc. (Nichols and Hampton)
3 test persons receive twice 4 cc. (Docherty and Nichols)
2 test persons receive twice 5 cc.^{*} (Docherty and Burgess)
1 test person receive twice 5 and 3 cc.^{*} (Docherty and Burgess)
3 test persons receive twice 10 cc. (Leach, Haughwout and Ash)
^{*} with subsequent laxative.
_Result_: In some cases changes in the liver, in others none.
_Test persons_: 11 criminals sentenced to death.
_Excerpt from Original 20_
_Author_: Lt. Col. Kendall, A.E., Lt. Col. Dickinson, S.P., Lt. Col.
Forrester, J.S.
_Title_: The Treatment of Bacillary Dysentery in Chinese Soldiers with
Sulfaguanidine and Sulfadiazine.
_Quotation_: American Journal of Medical Science 211,103 (January,
1946).
_Purpose_: Page 103: “The opportunity to make controlled observations of
the efficacy of sulfaguanidine and sulfadiazine in the treatment of
acute bacillary dysentery has recently presented itself to us. In an
Army general hospital in northeastern India caring for Chinese and
American troops, we have observed many hundreds of cases within the
past year. It early became apparent that we were dealing with a
relatively benign form of the disease with a uniformly favorable
outcome. Under these circumstances, it seemed both justifiable and
important to utilize the opportunity to determine to what extent
sulfonamide therapy shortened the course of the disease or otherwise
favorably influenced its course.”
_Experiment_: “The present communication describes the results of such
an investigation, carried out in the 7-month period from June through
December 1943, in which the results of treatment were compared in 334
Chinese patients with bacillary dysentery, one-third received
sulfaguanidine and one-third, sulfadiazine.”
_Results_: Page 109: “Neither drug shortened the course of the disease,
ameliorated the symptoms, nor altered the eventual outcome.”
_Test persons_: 334 Chinese soldiers patients.
_Excerpt from the Original Report No. 23_