TRIALS

OF

WAR  CRIMINALS

BEFORE  THE

NUERNBERG  MILITARY  TRIBUNALS

UNDER

CONTROL  COUNCIL  LAW  No.  10

 

 

 

 

VOLUME  II

 

 

NUERNBERG

OCTOBER 1946-APRIL 1949

 

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

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

The Medical Case

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:

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—

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—

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:

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:

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:

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:

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:

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

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 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—

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

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:

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

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:

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”,

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

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

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.

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

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

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

Excerpt from “Infection Experiment on Human Beings”

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

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

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

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

MALARIA

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

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

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

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

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

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

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

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

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

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

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

These experiments showed that—

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

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

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

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

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

DIPHTHERIA

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

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

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

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

51. (LV. 141) BOEHME and RIEBOLD (Boehme and Riebold,
One Way of Active Immunization against Diphtheria, Munich
Medical Weekly 1924, 232) were the first to use living diphtheria
bacilli for vaccination of human beings. After extensive experiments
on guinea pigs, they proceeded to experiment on human
beings. They used a diphtheria lymph, which they named Diphcutan,
a mixture of living, highly toxic diphtheria bacilli cultures in
N_aC1. Sixty-two persons were vaccinated with this lymph with
10-20 scratches each on the upper arm. Those vaccinated were—

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

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

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

TYPHUS

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

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

PLAGUE

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

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

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

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

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

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

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

SMALLPOX

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

81. (LV. 220) JENNER started from these premises. (Jenner,
quoted from Paschen, K.Kr.U., Manual on pathological micro-organisms,
T. VIII, 1, P821). In his first test, he inoculated with

variola 16 persons who had suffered from cowpox previously.
They did not fall sick.

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

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

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

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

CROSS-EXAMINATION

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

Witness Dr. Ivy: Yes.

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

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

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

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

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

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

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

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

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

A. The question is not clear.

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

A. No. My first research started in 1939.

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

A. Yes.

Q. With human experimental subjects, of course?

A. Yes, and on myself.

Q. And with a low pressure chamber?

A. Yes.

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

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

Q. Did you take part in these experiments as the director of

the experiments, as the person responsible, or were you usually
the experimental subject yourself?

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

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

A. In 1939.

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

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

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

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

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

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

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

A. Yes.

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

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

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

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

A. Yes, in some of the experiments.

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

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

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

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

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

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

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

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

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

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

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

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

A. Yes.

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

A. Yes.

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

A. They were locked up in their cells.

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

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

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

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

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

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

Q. You spoke only of prisoners then?

A. That is correct.

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

A. Prisoners who have already received some sentence.

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

A. But not necessarily to death.

Q. Yes, other sentences, aside from the death sentence, included.
Did you as a scientist interest yourself in the question

of why a person was sentenced, for what crimes he was sentenced?

A. No, I did not.

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

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

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

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

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

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

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

A. Yes. They may be.

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

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

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

A. Not to my knowledge.

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

A. Not to my knowledge.

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

A. I did not say that.

Q. What did you say then?

A. It was more or less as I quoted it, as I remember, I said
that under the circumstances which surrounded the first death
in high-altitude experiments at Dachau, which Dr. Romberg is
alleged to have witnessed, Dr. Rascher killed the subject; that

the death could be viewed only as an execution or as a murder;
and if the subject were a volunteer, then his death could not be
viewed as an execution.

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

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

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

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

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

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

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

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

Q. Witness, you spoke yesterday of a number of experiments
carried out in the United States and in other countries outside of

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

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

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

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

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

Q. That is the only case you know of?

A. That’s all that I know of.

EXTRACT FROM THE TESTIMONY OF DEFENDANT ROSE^[29]

CROSS-EXAMINATION

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

Defendant Rose: That question cannot simply be answered
with “yes” or “no”. It is, on the whole, not very probable that
without the war, typhus would have broken out in the German
camps, but it is not altogether beyond the bounds of possibility

because in times of peace too typhus has broken out in individual
cases from time to time. The primary danger in the camps is the
louse danger, and infection by lice also occurs in times of peace.
If typhus breaks out in a camp that is infected with lice, a typhus
epidemic can arise in peacetime too, of course.

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

A. Not for many decades, no.

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

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

Q. What is the usual mortality in plague?

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

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

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

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

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

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

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

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

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

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

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

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

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

A. So far as I know, yes.

Q. And one of those died?

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

Q. What is the mortality in typhus?

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

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

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

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

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

Q. Among the controls, you figured thirty percent?

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

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

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

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

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

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

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

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

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

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

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

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

MILITARY TRIBUNAL I

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

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

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

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

Mr. President, your Honors:

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

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

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

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

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

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

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

It results therefrom that the internal affairs of a country
cannot be affected by the London Charter and, consequently,

by Law No. 10. Punishment by this Tribunal of acts committed
by Germans against Germans is therefore inadmissible.

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

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

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

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

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

Now, I shall read my statement proper:

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

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

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

Here the result of interrogations made in the initial proceedings

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

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

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

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

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

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

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

The charges advanced against the defendant Karl Brandt include
medical experiments on human beings and euthanasia. In

both cases the defendant is charged with having committed
crimes against humanity.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The question is why, with the legal position so clear, a man
like Keitel refused to have such experiments carried out in the
Wehrmacht, and why some of the defendants themselves try to

disprove any connection with the experiments. The answer is that
a measure may be as unavoidable as war and yet be abhorred
in the same way.

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

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

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

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

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

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

If one compares the actual risk with the advantage granted,
one cannot admit the consent of these “voluntary prisoners” as
legal, in spite of all the protective forms they have to sign, for
these can only have been obtained by taking advantage of inexperience,
imprudence, or distress.

Looking through medical literature, one cannot escape the growing
conviction that the word “volunteer”, where it appears at
all, is used only as a word of protection and camouflage; it is

hardly ever missing since the struggle over this problem became
acute.

I will touch only briefly on what I have explained in detail in
my closing brief. No one will contend that human beings really
allowed themselves to be infected voluntarily with venereal disease;
this has nowhere been stated explicitly in literature. Cholera
and plague are also not minor inconveniences one is likely to
undergo voluntarily for a trifle in the interest of science. Above
all, it is not customary to hand over children for experimental
purposes, and I cannot believe that in the 13 experiments carried
out on a total of 223 children, as stated in Document Karl Brandt
117, Karl Brandt Exhibit 103, the mothers gave their consent.
Would not the mothers have deserved the praise of the scientist
for the sacrifice they trustfully made in the interest of science,
praise which is otherwise liberally granted to real volunteers in
reports on experiments?

Is it not likely to have been similar to the experiments carried
out by Professor McCance? (Karl Brandt 93, Karl Brandt Ex.
29.) The German authorities who condemn the defendants in a
particularly violent form have no objection to raise here against
the order to hand over weakling children to a research commission
for experimental purposes. The questionnaires which the
Tribunal approved for me in order to get further information
about this matter have not been answered as the higher authorities
did not give permission for such statements to be made.
This silence says enough; it is proof of what is supposed to be
legal today in the line of “voluntariness”.

It is repeatedly shown that the experiments for which no consent
was given were permitted with the full knowledge of the
government authorities. It is further shown that these experiments
were published in professional literature without meeting
any objection, and that they were even accepted by the public
without concern as a normal phenomenon when reports about
them appeared in popular magazines.

This happens at a time when the same press is stigmatizing as
crimes against humanity the German experiments which were
necessary in the interests of the state. Voluntariness is a fiction;
the emergency of the state hard reality.

In all countries experiments on human beings have been performed
by doctors, certainly not because they took pleasure in
killing or tormenting, but only at the instigation and under the
protection of their state, and in accordance with their own conviction
of the necessity for these experiments in the struggle for
the existence of the people.

The German doctor who acted in conformity with the German

regulations can no more be punished than the American doctor
who complied with the requests of his state in the way which is
customary there.

Justice is indivisible.

To what extent is the defendant Karl Brandt implicated in
the medical experiments?

The prosecution says he is implicated in almost all the experiments
and refers to his position and his connections. They state
that he was the highest Reich authority in the medical spheres;
there, however, they are misled by an error in translation, for
Karl Brandt only had the powers, regulated in a general way, of
an “Oberste Reichsbehoerde” [Supreme Reich Authority], and
the practice of those powers was restricted to special cases.

This is apparent from the three known decrees and from the
explanation thereof given by witnesses. Moreover, Karl Brandt
was not given these functions until 1944 when these experiments
were practically finished, as is shown by the time schedule submitted
to the Tribunal for comparison.

It has been proved that the defendant Karl Brandt himself, in
a broadcast, publicly called his position as Reich Commissioner
a “Differential”. In fact, Karl Brandt’s task was not to order but
to adjust; it was a task designed to fit his character.

We have also learned from the presentation of evidence that
the defendant Karl Brandt did not have the machinery at his
disposal for issuing orders which was necessary for a supreme
Reich authority; he lacked the staff and the means. No one who
is acquainted with a government administration will think it
possible that, under these circumstances, the defendant Karl
Brandt might have been able to enforce his point of view against
the resistance of the old agencies; no one will even think it probable
that anything would have been done to facilitate such an
attempt by the “new master”.

Consequently, Karl Brandt’s position was not such as to justify
the conclusion drawn by the prosecution as to his general knowledge.
There was no official channel by which everything was
bound to come to his knowledge, for he was not the superior
of other authorities.

It is true that the defendant Karl Brandt was supposed to be
informed about fundamental matters, that he had the right to
intervene, and so on. But these were only possibilities, not in
conformity with conditions in practice. We have seen that Conti
opposed him and that Himmler prohibited direct contact with
Karl Brandt within his sphere.

Therefore Karl Brandt can be brought into connection only
with the events in which he participated directly.

Here it is first of all striking that the defendant Karl Brandt,
who is supposed to have been the highest authority, appears only
very rarely.

There are three so-called troop experiments: the testing of
drinking water, concentrated food, and an ointment for burns.

Further, three medical experiments are connected with the
defendant Karl Brandt. The hepatitis experiments, which he is
said to have suggested, were not carried out. While that research
was continued during the following years, Karl Brandt, who is
said to have sponsored it particularly, is mentioned by none of
the numerous witnesses and experts, and his name is not mentioned
in any document. Is it not, therefore, a plausible explanation
that Grawitz confused the names?

The second case is the request to hand over 10 prisoners for
two days for an experiment not named. This cannot refer to a real
medical experiment, for such an experiment cannot be carried out
in such a short time with the necessary tests and observations.
The speedy return of the experimental subjects indicates that the
experiment was not dangerous.

Finally, the defendant Karl Brandt is connected with the
phosgene experiments by Bickenbach, which caused the death of
four Germans sentenced to death. But precisely here Bickenbach’s
affidavit shows that the defendant Karl Brandt was outside the
whole framework of the experiment in Himmler’s sphere, and that
he was merely approached to mediate. The order came from
Himmler. The experiments must have seemed innocuous to the
defendant Karl Brandt since Bickenbach wanted to carry them
out on himself.

On the other hand, there was the state emergency and the
enormous importance of the discovery that the taking of a few
urotropin tablets might give the ardently desired protection to all
against the expected gas attack and, as the result of the experiment
shows, actually did so.

Now the prosecution endeavors to establish a connection of
Karl Brandt with the other experiments via the Reich Research
Council. It is true that one can establish such a connection theoretically
on paper, but the links of the chain break when one
examines them closely. Only the head of the specialized department
decided on the so-called research assignments, and he only
investigated whether the aim was necessary for war, not how
the experiment was to be carried out. He could not inform others
of matters about which he did not know himself.

The defendant Karl Brandt is further charged with not having
protested in one case when he heard about deaths caused by experiments
on persons sentenced to death in the well-known lecture

on sulfanilamide. I must point out that even if this experiment
had been inadmissible, silence would not be a crime, for assent
after the act is without importance in criminal law, and one can
only be connected with plans and enterprises as long as they have
not been concluded.

Now the prosecution has introduced in its closing brief a new
charge holding the defendant Karl Brandt responsible for negligence.
In this respect I should like to point out that no indictment
for negligence has been brought in, and that the concept
of crime against humanity committed by negligence cannot exist.

Therefore, it will be sufficient to emphasize that the alleged
negligence depends on the existence of a duty of supervision and
the right to give orders through other agencies. In every state
the spheres of competence are separated, and it is not possible
for everyone to interfere in everything on the basis that everyone
is responsible for everything.

The prosecution says that the defendant Karl Brandt ought to
have used his influence and availed himself of his intimate relations
with Hitler to stop the experiments. Even presuming that
he was aware of the facts as crimes, his guilt would not be of a
legal, but only of a political or moral nature. Until now nobody
has been held criminally responsible for the conduct of a superior
or a friend; the question of criminal law, however, is the only
one the Tribunal has to consider. As a matter of fact this close
relationship did not exist. The defendant Karl Brandt was the
surgeon who had to be in attendance on Hitler; Dr. Morell, the
latter’s personal physician, soon tried to undermine the confidence
placed in Karl Brandt so that he was given commissions which
removed him further and further from the sphere of his medical
activity.

The alleged intimate relations were eventually crowned by the
dictation of a death sentence against Karl Brandt without his
having been granted even a hearing on the charges advanced
against him.

If one sums up everything relating to the medical experiments
and follows to a large extent the charges of the prosecution, it
is an established fact that it is not shown that the defendant
Karl Brandt participated in any way in experiments on prisoners
of war and foreigners, or that he was cognizant of them. Therefore,
no war crime or crime against humanity has been committed,
and consequently punishment under Law No. 10 is excluded.
I refer in this connection to the legal arguments in my
closing brief.

The second problem is euthanasia.

The authorization of 1 September 1939 was issued before the

period of the medical experiments, at a time when the defendant
Karl Brandt was still closely attached to the Fuehrer’s headquarters
and to Hitler as an accompanying physician.

In my closing brief I have explained in detail that the defendant
Karl Brandt did not participate in the Action 14 f 13, with
the “special treatment” of prisoners in concentration camps, occurrences
which were given the name of euthanasia only here in
the trial.

Neither did the defendant Karl Brandt take any part in the
extermination of Jews in Auschwitz, which again has nothing in
common with the idea of euthanasia.

I have further shown that the so-called “wild euthanasia”,
which was carried out simultaneously with and immediately after
legal euthanasia, was not instigated by Karl Brandt. The stopping
of euthanasia in August 1941 has been proved, and therefore that
was the end of the defendant Karl Brandt’s duties; for what
would have been the meaning of this cessation if, after it, increased
activity was to set in? The contacts of Karl Brandt after
the cessation have been clarified as being the consequence of his
activities connected with evacuation for air protection. Where
the name of the defendant Karl Brandt is mentioned otherwise,
it obviously serves only as means of information for uninformed
people who never saw or heard anything of him themselves.

I shall deal here with euthanasia only to the extent that it is
officially dealt with under the ordinance of 1 September 1939.
Concerning the “Reich committee”, I refer to my closing brief.

The presentation of evidence has established that the defendant
Karl Brandt actually had no “administrative and medical
office” from which the whole organization might have been administered.
On the contrary, it is a fact that Bouhler declared
himself solely responsible for the procedure; this is testified to
by unequivocal documents.

Nor has any regulation or instruction become known which was
issued by Karl Brandt. Not a single document was signed by him.
He made no speeches and conducted no discussions.

But what did he do and what was his duty?

His duty was not to carry out euthanasia; he was only to be
informed in special cases in order to be able to report to Hitler.
This was in conformity with the existing conditions—his presence
at and simultaneous attachment to the Fuehrer’s headquarters,
and to Hitler.

Only once was Karl Brandt seen active, and that is in the
negotiations with Pastor von Bodelschwingh, which led to the
result, amazing for us, that the defendant Karl Brandt won
Bodelschwingh’s sympathy, and after the collapse the latter said

in a radio interview that Brandt was an idealist but not a criminal.

But the defendant Karl Brandt took note of interrogation forms,
he inspected a registrar’s office, and he co-signed the authority
for physicians to execute euthanasia.

What could the defendant Karl Brandt learn from the forms?

The prosecution thinks that Jews and foreigners were to be
affected in the first instance. The affidavit by the director of the
Jewish lunatic asylum, in which all the insane Jews of Germany
were concentrated, proves that this was not the case.

The prosecution says that all persons unfit for work were to
be killed as “useless eaters”. But it is a fact that even work-houses
were requested to give information only about cases of
really grave insanity.

What did the defendant Karl Brandt know about the procedure?

He knew that the authorization which was issued was not an
order given to the doctor, but only conferred on him the right to
act on his own responsibility after the most careful consideration
of the patient’s condition. This was a clause inserted in the
ordinance of 1 September 1939 on Karl Brandt’s initiative.

The defendant Karl Brandt knew that the specialists, whom he
did not know, were chosen by the Ministry of the Interior, and
that the experts were eminent men in their special spheres.

The defendant Karl Brandt also knew that the authorities
concerned saw no reason to object to the execution of the measure,
and that even the chief jurists of the Reich declared the legal
foundations to be irreproachable, after having been informed of
the facts.

Within this framework the defendant Karl Brandt approved of
official euthanasia and supported it.

But the prosecution even calls euthanasia a thousand-fold murder.
In their opinion there was no formal law, and it is alleged
that the expert Dr. Lammers confirmed this.

Yes, but he also stated that even an informal ordinance was
valid. Even an order issued by the Fuehrer had the force of law,
as can be clearly seen from the indisputable effects of such orders,
in particular in relation to foreigners.

But for the defendant Karl Brandt it is of no importance
whether the ordinance of 1 September 1939 was actually valid or
not; the only important thing is that he had reason to believe it
was valid and that he could rely on this opinion.

German courts have already dealt with cases of the practice
of euthanasia; but these cases occurred after the official procedure
had been stopped, as at Hadamar, or after persons had
been killed who could never have come under the powers conferred

by the ordinance, or other crimes were committed.

It should be observed that these sentences always confirm the
base motives of the offenders. On the other hand, these courts
were concerned with the question of public law only to the extent
that they confirm that no formal law was available. In one case
the court restricted itself to information given by a member
of the prosecution staff in the trial before the International Military
Tribunal.

The real objections to euthanasia are not based on a formal
point of view, but rather on the same reasons which are advanced
against the admissibility of the medical experiments.

Even an insane person of the lowest grade may not be killed
it is said. No human being may presume to kill another human
being.

But the right to kill in war is accepted in international law, and
public law allows the suppression of a revolt by violence.

What prevents the state from ordering killing in the sphere
of euthanasia too?

The answer is that there is no motive which might justify an
action of this kind.

The economic motive of eliminating “useless eaters” is certainly
not sufficient for such measures. Such a motive was never upheld
by the defendant Karl Brandt; it was apparently mentioned by
others as an accompanying contingency and later taken up by
counter propaganda.

The defendant Karl Brandt considered the motive of pity for
the patient to be the decisive one. This motive is tacitly accepted
for euthanasia on the deathbed, and doctors in all countries increasingly
acknowledge it.

In former times the courts were repeatedly concerned with
killings committed out of pity, and in sensational trials, juries
found offenders not guilty who freed their nearest relatives from
the torment of life.

Who would not have the desire to die while in good health
rather than to be forced by all the resources of medical science
to continue life degraded to an animal’s existence! Only misguided
civilization keeps such beings alive; in the normal struggle
for existence Nature is more charitable.

But the legislator has hitherto refrained from giving authority
to kill in such cases. But he can solve the problem if he wants to.
The reasons for his restraint are exactly those which led in this
case to the disguising of those measures and to the secrecy observed.
There is the fear of base intrigues concerning inheritance,
the mental burden of the relatives, and so on. The individual
does not want to bear this burden, nor is he able to do so. It can

be taken over only by the state, which is independent of the desires
of those concerned.

That such is the will of the great majority of those who really
come into touch with these problems was shown by the result of
the inquiry conducted by Professor Meltzer, which has been offered
in evidence. It was carried out by him many years ago in
order to obtain an argument against euthanasia and its principal
supporters, Binding and Hoche. He obtained the reverse of what
he had himself expected as an expert.

But I see a third motive which unconsciously plays an important
part; it is the idea of sacrifice.

A lunatic may cause the mental and economic decay of a family
and also ruin it morally.

If healthy human beings make great sacrifices for the community
and lay down their lives by order of the state, the insane
person, if he could arouse himself mentally and make a decision,
would choose a similar sacrifice for himself.

Why should not the state be allowed to enact this sacrifice in
his case and impose on him what he would want to do himself?

Is the state to be forbidden to carry out such euthanasia until
the whole world is a hospital, while the creatures of nature keep
unblemished through what is believed to be the brutality of
Nature?

The decision as to whether such an order given by the state
is admissible or not depends on the conception of the social life
of mankind and is, therefore, a political decision.

Neither the defendant Karl Brandt nor anyone else who participated
in legalized euthanasia would ever have killed a human
being on his own authority, and in the German sentences passed
the blameless former life of the persons stigmatized as mass-murderers
is always emphasized.

This is a warning to be cautious. Did they really commit brutalities,
or were they sentenced only because they were not in a
position to swim against the tide of times and to oppose it with
their own judgment?

A Christian believing in dogma will turn away in pity from this
way of thinking. But if the order to use euthanasia to the desired
limited extent was really in such contradiction to the commandment
of God that everyone could realize it, then it is incomprehensible
why Hitler, who never withdrew from the church,
was not excommunicated.

This must remove the burden of guilt which one now wants
to pile up. Then humanity would have clearly realized at the
time that in this devilish struggle man cannot prevail for God
stands for Justice.

If there are offenders there are many co-offenders, and one
understands Pastor Niemoeller saying: “We are all guilty.”

This is a moral or a political guilt, but cannot be shifted to a
single person as criminal guilt.

I have thus shown the fundamental lines along which the actions
of the defendant Karl Brandt have to be judged.

The primary consideration for the judgment of this Tribunal
is that no prisoners of war or foreigners were submitted to euthanasia
with the knowledge or the desire of the defendant Karl
Brandt.

Thus the defendant Karl Brandt cannot be punished under
Law No. 10 on this count either. What happened between Germans
is not subject to the decision of this Tribunal.

Finally, the defendant Karl Brandt is also charged with having
been a member of the SS, an organization which has been
declared criminal. Evidence to show that the defendant Karl
Brandt knew of a criminal aim of this organization and approved
of it must be brought by the prosecution. A reference to the general
assertions in these proceedings is not sufficient proof, for
precisely here the prosecution cannot prevail with their assertions
in regard to Karl Brandt.

As to the details, I refer to the statements made in my closing
brief.

The fact that the defendant Karl Brandt was the only member
of the SS who at the same time retained his position as a medical
officer in the army shows that his honorary rank in the SS was
really only a formality, and that he was no true member of this
organization.

When the defendant Karl Brandt testified here that he wore
the uniform of the SS with pride, this only shows that he, like
the majority of the SS men, knew nothing about the criminal
aims. In judging the organization of the SS, the International
Military Tribunal was aware only of a small part of the whole,
looking, so to speak, through a keyhole into a dark corner.

Nor could the defendant Karl Brandt have any personal knowledge
of Himmler’s secrets, for Himmler rejected him personally,
as is shown by a number of affidavits. Since the defendant Karl
Brandt could not obtain information even in his own sphere
of medicine, how is he to have obtained knowledge of other
matters?

I do not want to repeat the affidavits which give information
about the basic attitude of the defendant Karl Brandt and show
that he adopted an attitude which was incompatible with the
mentality supposed to be typical of the SS. In this connection
I merely refer to the statements made by Pastor Bodelschwingh,

Dr. Gerstenmaier, Meyer-Bockhoff, Philipp Prince of Hesse, and
others.

If I, as the defense counsel, consider Karl Brandt’s conduct as
a whole and see the wounds he has received in the struggle of
life, I must acknowledge that he is a man and not a criminal.

For the Tribunal’s decision, however, the only conclusive fact
is that the defendant Karl Brandt did not disturb the circle of
international law, for he committed no war crimes and consequently
no crimes against humanity. I, therefore, ask that defendant
Karl Brandt be acquitted.

A. Final Statement of Defendant Karl Brandt^[33]

There is a word which seems so simple—order; and how
colossal are its implications. How immeasurable are the conflicts
which hide behind the word obey. Both affected me, obey and
order, and both imply responsibility. I am a doctor and on my
conscience lies the responsibility of being responsible for men
and for life. Quite dispassionately the prosecution has brought
the charge of crime and murder and they have raised the question
of my guilt. It would have no weight if friends and patients
were to shield me and speak well of me, saying I had helped and
I had healed. There would be many examples of my actions
during danger and my readiness to help. All that is now useless.
As far as I am concerned I shall not evade these charges. But the
attempt to vindicate myself as a man is my duty towards all
who believe in me personally, who trusted in me and who relied
upon me as a man as well as a doctor and a superior.

No matter how I was faced with the problem, I have never regarded
human experiments as a matter of course, not even when
no danger was entailed. But I affirm the necessity for them on
grounds of reason. I know that opposition will arise. I know
things that disturb the conscience of a medical man, and I know
the inner distress that afflicts one when ethics of every form
are decided by an order or obedience.

It is immaterial for the experiment whether it is done with
or against the will of the person concerned. For the individual
the event seems senseless, just as senseless as my actions as a
doctor seem when isolated. The sense lies much deeper than that.

Can I, as an individual, detach myself from the community? Can
I remain outside and do without it? Could I, as a part of this
community, evade it by saying I want to live in this community,
but I don’t want to make any sacrifices for it, either of body or
soul? I want to keep a clear conscience. Let them see how they
can get along. And yet we, that community and I, are somehow
identical.

Thus I must suffer these contradictions and bear the consequences,
even if they remain incomprehensible. I must bear them
as my lot in life, which allocates to me its tasks. The meaning
is the motive—devotion to the community. If on its account I am
guilty, then on its account I will be answerable.

There was war. In war, efforts are all alike. Its sacrifices affect
us all. They were incumbent upon me. But are those sacrifices
my crime? Did I tread on the precepts of humanity and despise
them? Did I pass over human beings and their lives as if they
were nothing? Men will point at me and cry “euthanasia”, and
falsely, “the useless”, “the incapable”, “the worthless”. But what
actually happened? Did not Pastor Bodelschwingh, in the middle
of his work at Bethel last year, say that I was an idealist and
not a criminal? How could he say that?

Here I am, subject of the most frightful charges, as if I had not
only been a doctor, but also a man without heart or conscience.
Do you think that it was a pleasure to me to receive the order
to permit euthanasia? For 15 years I had toiled at the sickbed
and every patient was to me like a brother. I worried about every
sick child as if it had been my own. My personal lot was a heavy
one. Is that guilt?

Was it not my first thought to limit the scope of euthanasia?
Did I not, the moment I was included, try to find a limit and
demand a most searching report on the incurables? Were not the
appointed professors of the universities there? Who could there
be who was better qualified? But I do not want to speak of these
questions and of their execution. I am defending myself against
the charge of inhuman conduct and base intentions. In the face
of these charges I fight for my right to humane treatment! I
know how complicated this problem is. With the utmost fervor
I have tortured myself again and again, but no philosophy or
other wisdom helped me here. There was the decree and on it
there was my name. It is no good saying that I could have feigned
sickness. I do not live this life of mine in order to evade fate if
I meet it. And thus I assented to euthanasia. I fully realize the
problem; it is as old as mankind, but it is not a crime against
man nor against humanity. It is pity for the incurable, literally.
Here I cannot believe like a clergyman or think as a jurist. I am

a doctor and I see the law of nature as being the law of reason.
In my heart there is love of mankind, and so it is in my conscience.
That is why I am a doctor!

When I talked at the time to Pastor Bodelschwingh, the only
serious admonisher I knew personally, it seemed at first as if our
thoughts were far apart; but the longer we talked and the more
we came into the open, the closer and the greater became our
mutual understanding. At that time we were not concerned with
words. It was a struggle and a search far beyond the human
sphere. When the old Pastor Bodelschwingh left me after many
hours and we shook hands, his last words were: “That was the
hardest struggle of my life.” For him as well as for me that
struggle remained; and the problem remained too.

If I were to say today that I wish this problem had never come
upon me with its convulsive drama, that would be nothing but
superficiality in order to make me feel more comfortable in myself.
But I am living in these times and I see that they are full
of antitheses. Somewhere we all must make a stand. I am fully
conscious that when I said “Yes” to euthanasia I did so with the
deepest conviction, just as it is my conviction today, that it was
right. Death can mean deliverance. Death is life—just as much
as birth. It was never meant to be murder. I bear a burden, but
it is not the burden of crime. I bear this burden of mine, though
with a heavy heart, as my responsibility. I stand before it, and
before my conscience, as a man and as a doctor.

B. Final Statement of Defendant Handloser^[34]

During my first interrogations here in Nuernberg, in August
1946, the interrogator declared to me:

First, you have been the Chief of the Army Medical Service.
Whether or not you knew of inadmissible experiments does not
matter here. As the Chief, you are responsible for everything.

Secondly, do not make the excuse that among other nations
the same or similar things have happened. We are not concerned
with that here. The Germans are under indictment, not the
others.

Thirdly, do not appeal to your witnesses. They, of course, will
testify in your favor. We have our witnesses, and we rely upon
them.

Those were the guiding principles of the prosecution up to the
last day of these proceedings. They have remained incomprehensible

to me, because I always believed a criminal to be a man
who did wrong, and because I was of the opinion that even the
prosecution endeavored to be objective, at least after the end of
the presentation of evidence. The final plea by the prosecution,
however, has shown me that I made a mistake. The speech by
the prosecution did not take into account the material submitted
in evidence, but it was a summarized repetition of one-sided statements
by the prosecution without taking into account that which
was submitted in the course of the presentation of evidence in
my case.

I am quite convinced that the high Tribunal has gained a true
impression of my activity and of my attitude. Just as I have tried
throughout my entire life to fulfill the tasks allotted to me by
fate according to the best of my capacity and in the full knowledge
of my responsibility, so have I also tried to stand this most
serious task before this Court with the aid of the strongest
weapon which I possess—that is the truth.

If there is anything which could console me for the mental
suffering of the last months, it is the consciousness of knowing
that before this Court, before the German people, and before the
people of the world, it has been made clear that the serious general
charges of the prosecution against the Medical Corps of
the German Armed Forces have been proved to be without any
foundation.

It can be seen how unjust these charges were by the fact that
no charges have been raised or any proceedings initiated against
a single leading doctor of the German Armed Forces in combat
or at home. As the last Medical Inspector of the Army, and as
Chief of the Medical Service of the Armed Forces of Germany,
I think with pride of all the medical officers to whose untiring
devotion countless wounded and sick patients of this dreadful
war owe their lives and cure and their possibilities of existence.
Never and nowhere were the losses of an army medical corps
greater than those among the medical officers of the German
Armed Forces in carrying out their duties.

More than 150 years ago, the motto and guiding principle
created for German military doctors and their successors was
“Scientiae, Humanitati, Patriae” (For Science, Humanity, and
Fatherland). Like the medical officers in their entirety I also
have remained true to that guiding principle in thought and in
deed. Realizing the outcome of the events of these recent times,
may the joint endeavors of all the nations succeed in avoiding in
future the immeasurable misfortune of war, the dreadful side of
which nobody knows better than the military doctor.

C. Final Statement of Defendant Rostock^[35]

I have nothing to add to the pertinent statements by my defense
counsel, Dr. Pribilla, regarding the individual points of the indictment
in this trial; but with regard to the general position of
German medical science during this war, there are a few words,
which I would like to say from this dock.

During my direct examination I have already stated why I, as
the Chief of the so-called “Science and Research” department
undertook to work for medical science as late as 1943 and 1944.
At that time the problem was to avoid, or at least to minimize,
the great and acute danger of teaching and research, and with
that Germany’s universities, becoming completely destroyed.
When this had been prevented at the very last moment, there
arose the task and the duty of improving the means and the
possibilities of basic research which had been more and more
restricted in the course of the war, and through dwindling resources
research in Germany would have come to a standstill. Due
to the chaotic development of the last year of the war, success
was comparatively small. There were, however, some results and
there were a few things which were saved after the end of the
war.

Today through the evidence produced in this trial, I know the
reasons which paralyzed the work at the time. It was the striving
for power on the part of certain organizations which used the
effective support of certain executive departments of the Third
Reich who held unrestricted power. It was the principle of totalitarianism
which these organizations followed particularly in the
case of what they called the “university science”. It was there,
however, that we had founded the tradition of German science
recognized the world over. In contrast to that, their aim, as shown
in some of the testimonies given in this trial and some of the
documents submitted, was to found a “politically directed science”
of their own. That was the reason why my personal efforts and
those of the health and medical services, which I have referred
to in this trial, did not achieve complete success. Today, at the
end of this trial, that is now clear to me. At that time, in the year
1944, we did not know of this masterly camouflaged and, therefore,
so very dangerous opponent to that branch of science with
which I myself had grown up.

Throughout my life I have never worked for one form of a
state or another, or for any political party in Germany, but
simply and solely for my patients and for medical science.

D. Final Statement of Defendant Schroeder^[36]

It is very difficult for a defendant to find the right final words
here. In methodical, detailed work throughout the last months, the
defense has tried to rebut the charges of the prosecution.

When now the prosecution states in its final plea that details
do not matter so much, but that the entire complex of questions
has to be considered as a whole, that one has to look at matters
as at a bundle of sticks, not as individual branches and twigs of
the bundle. If, furthermore, the prosecution refers to a sentence
pronounced in the Far East by an American Military Court, by
which a Japanese general and military commander was sentenced
only because, as a commander, he bore the responsibility
for all the acts of his troops, regardless of whether he ordered
them, knew of them, approved of them, or did not even know of
them—if, gentlemen of the Tribunal, these principles are decisive
for proceedings, then I have to ask, why bother at all to start
proceedings of that kind, to prepare them, and to carry them out?
Those decisions could be made much more quickly.

What can I, as a defendant, bring against these arguments?
That can be said in a few words: myself, my work, my acts as a
doctor and a soldier in 35 years of service. Not the craving for
glory and honor was the purport of my life’s work, but the firm
intention to put my entire capacity, my full knowledge, into the
service of my beloved Fatherland; to help the soldier, as a physician,
to heal the wounds caused by wartime and peacetime service,
both as a physician for the individual, as well as a medical officer
for the mass of troops which were in my care.

That was the aim and object of my work. I do not believe that
I have deviated from that path. My eyes always looked towards
the final goal: to help and to heal.

E. Final Statement of Defendant Genzken^[37]

During my testimony I stated before the Tribunal that I took
no part in the types of experiments of which I am accused. I have
nothing to add to what my defense counsel Dr. Merkel has said.
I have striven to lead a decent life as a doctor and as a soldier.
If my fatherly concern for my 2,500 doctors and 30,000 men of
the Medical Service of the Waffen SS was mentioned here in this
courtroom, it is nevertheless my duty to speak from this place
on behalf of those men who, in the majority, were decent and
brave doctors and medical attendants. I am proud to have been

their leader, a leader of those who sacrificed their lives and blood
with unceasing fervor to help me in building up the organization
of the Medical Service of the Waffen SS, and to overcome the
tremendous losses among the ranks of our comrades at the front.

The soldiers of the Waffen SS have proved to history—in the
focal points of uncounted battles during an uneven struggle—that
they could rank among the finest troops on this earth as far
as training, efficiency, readiness of sacrifice, soldierly valor, and
contempt of death were concerned. Actions of modern warfare
have presented to some extent a picture of murder and horror on
both sides. Who dares to raise his head before God and gainsay
that?

The men of the Waffen SS went as vanquished into captivity,
out of unimaginable physical and mental war distress. That captivity
was not free of bloodshed, ill-treatment and degradation of
various kinds. To the men of the Waffen SS there was added to
the weight of such captivity the frightful realization of the fact
that their supreme commander, Himmler, had misused their cloak
of honor and deceived them, that they had been cheated and
then deserted by him. These decent men of the front Waffen SS
certainly did not deserve that fate, the fate of being branded as
members of a criminal organization.

My request and my wish is that our former opponents should
realize the honest idealism of these victims, do justice to it, and
give them back belief in justice.

F. Final Statement of Defendant Gebhardt^[38]

I wish to thank the high Tribunal for having granted me an
opportunity, in the witness box, to describe my personal position
in 1942 in such detail.

The historical situation at that time placed me in a totalitarian
state which, in turn, placed itself between the individual and the
universe. Virtues in the service of the state were paramount virtues.
Beyond that I do not know anywhere where the intellect
was not debased as a tool for war. Everywhere, in some way
values and solutions were put into the service of the war. And
here again, in the intellectual field, the first step is the decisive
one. I may be permitted to recall that in the war of nerves, it
was propaganda with and for “medical preparations” which
caused the first step, the order to examine the question of sulfanilamides.

In my final statement today may I be permitted to describe my

entire attitude. In doing so, I may perhaps utilize the most important
of the four American freedoms, that is to say the freedom
of speech, until the very end in such a way that I will refrain
from any denunciation or from incriminating others.

Without exaggerating the importance of my own person, a
physician can only be measured according to his conception of
medical science. Basically, I was neither a cold technical specialist
nor a pure scientist. I believe that I have always tried, for example
when carrying out surgical experiments, to see every disease
as a human condition of suffering. I did not look on my task
as something to serve my own advantage, or as a cheap gesture
of theoretical pity, but as a personal active support to the trembling
existence of the suffering patient. My goal as a physician
was not so much purely technical therapy for the individual
patient, as therapeutical care for the particularly underprivileged
group of the poor, the children, the cripples, the neurotics.

I am anxious that it should be believed that it was not due to
moral baseness nor to the selfish arrogance of the scientist that
I came into contact with experiments on human beings. On the
contrary, during the entire period in question I had experiments
in my field of research carried out on animals. It was only because
I was the competent responsible surgical expert that I was informed
about the imminent experiments on human beings in my
field of surgery, which had been ordered by the state authorities.
After the order had been given, it was no longer a question of
stopping these experiments, but the problem was the method of
their execution.

My problems as an expert consisted of the following: For one,
the experiments that had been ordered had to be of practical scientific
value, for the purpose of testing immunization to protect
thousands of injured and sick. On the other hand, I considered
humane safety measures for the experimental subjects most important.
The main point for me was never the purpose and the
object of the experiments, but the manner in which they were
carried out. To realize that in a humane way I did not remain
aloof and restrict myself to theoretical instruction in the field of
surgery, but I myself took part, with my clinic and with all its
safety measures.