As to all this, the proof is clear that Becker-Freyseng was actively employed in organizing and was present at the so-called "Cold Congress." But, more than the evidence discloses is needed to establish that he had any later part in or connection with the experiments themselves, or that he had any controlling relationship to their initial establishment.
TYPHUS EXPERIMENTS:
The evidence is insufficient to disclose any criminal responsibility of the defendant Becker-Freyseng in connection with the typhus experiments.
SEA WATER EXPERIMENTS:
We Have discussed the sea water experiments in that portion of our Judgment which deals with the case of the defendant Schroeder. As was pointed out there, two methods of making sea water drinkable were available to the Luftwaffe. One, the so-called Schaefer method, had been chemically tested and apparently produced, potable sea water; the other, the so-called Berka process, which changed the taste of the sea water but did not reduce the salt content.
Becker-freyseng as Chief Consultant for Aviation Medicine in the office of Schroeder arranged for a conference to be held in May 1944 to discuss the testing of these two methods. At the conference the defendant reported on various clinical experiments which had been conducted by certain von Sirany to test the Berka process. He came to the conclusion that the experiments had not been conducted under sufficiently realistic conditions of sea distress to make the findings conclusive.
As a result of the conference it was decided that new experiments should be conducted.
We learn from the report of the meeting which is in evidence that two series of experiments were to be conducted. The first, a maximum period of six days during which one group of subjects would receive sea water processed with the Berka method; a second group, ordinary drinking water; a third group no water at all; and the fourth group, such water as would be available in the emergency sea distress kits then used. During the duration of the experiment all persons were to receive only an emergency sea diet such as provided for persons in distress at sea.
In addition to the 6-day experiment it was determined that a 12-day experiment should be run. The report on this series reads as follows:
"Persons nourished with sea water and Berkatit, and as diet also the emergency sea rations.
"Duration of experiments: 12 days "Since in the opinion of the Chief of the Medical Service permanent injuries to health, that is, the death, of the experimental subjects has to be expected, as experimental subjects such persons should be used as will be put at the disposal by Reichsfuehrer SS."
By letter dated 7 June 1944 Schroeder requested the Reichsfuehrer SS to allow him to use concentration camp inmates for the sea water experiments. The letter stated, among other things, the following:
"As the experiments on human beings could thus far only be carried out for a period of four days, and as practical demands require a remedy for those who are in distress at sea up to 12 days, appropriate experiments are necessary.
"Required are 40 healthy test subjects, who must be available for 4 whole weeks. As it is known from previous experiments, that necessary laboratories exist in the concentration camp Dachau, this camp would be very suitable...."
When on the stand as a witness the defendant Becker-Freyseng admitted that he prepared the substance of the letter for Schroeder's dictation and signature.
Thus with actual knowledge of the nature of the Berka process and the fact that if used over prolonged periods it would cause suffering and death, Becker-Freyseng counselled and conferred with his Chief concerning the necessity for experiments wherein the process would be used. He gave advice upon the exact procedure to be used in the 6-day and 12-day experimental series. He framed, the letter to Himmler requesting the use of concentration camp inmates at Dachau for experimental subjects. He called the defendant Beiglboeck to Berlin to explain to him the details and purpose of the experiments. He issued the order under which Beiglboeck went to Dachau to begin the experiments. He received Beiglboeck's report after the experimental series had been concluded.
Throughout all stages of the affair, from its inception to its conclusion, the defendant knew of the dangerous nature of the experiments. He knew that deaths were reasonably to be expected. He knew that concentration camp inmates were to be used as experimental subjects. It is impossible to believe that he supposed that the inmates of the camps, who were to be furnished by Himmler, were to be volunteers. The entire language of the letter which was written to Himmler asking for experimental subjects entirely refutes such implication.
The evidence shows conclusively that Gypsies of various nationalities were used as experimental subjects. They were former inmates of Auschwitz who had been tricked into coming to Dachau under the promise that they were to be used in a special labor battalion. When they arrived at Dachau they were detailed to the sea water experiments without their voluntary consent being asked or given.
During the course of the experiment many of the experimental subjects were treated brutally and endured much pain and suffering.
It is apparent from the evidence that Becker-Freyseng was criminally connected with the experiments, and that the experiments were essentially criminal in their nature.
To the extent that the crimes committed by him or under his authority were not war crimes, they were crimes against humanity.
CONCLUSION Military Tribunal I finds and adjudges the defendant Hermann BeckerFreyseng guilty under Counts Two and Three of the Indictment.
SCHAEFER The defendant Schaefer is charged under Counts Two and Three of the Indictment with personal responsibility for and participation in seawater experiments.
Konrad Schaefer was a scientist whose special field of research was chemical therapy. In 1 November 1941 he was drafted into the Luftwaffe. In spring of the following year he was transferred to the Luftwaffe Replacement Depot in Salow and from there to the Luftwaffe base at Frankfurt on the Oder. In summer of 1942 he was transferred to Berlin and assigned to the staff of the Research Institute for Aviation Medicine. His chief assignment at the Institute was to do research on the problem of sea emergency for the Luftwaffe. This included research work on various methods to render sea water potable. Schaefer remained in his position at the Institute without ever having attained officer rank.
In May 1944 the defendant was ordered to be present at a meeting to be held at the German Air Ministry in Berlin, called to consider further research on making sea water potable. Some months previous to the meeting, Schaeder had developed a process which actually precipitated the salts from sea water, but it was thought by the Chief of the Luftwaffe Medical Service to be too bulky and expensive for military use by the Luftwaffe.
Present were Schaefer; Becker-Freyseng, research adviser to Schroeder; Christensen, of the Technical Bureau of the Reich Ministry of Aviation; and others. The subject of discussion was the feasibility of using the Schaefer process, or of turning to another process known as the Berka method.
The latter method, while cheap, did not precipitate salts time - as Schaefer, previous to the meeting, had already reported to Schroeder. Nevertheless, these in command, of the meeting agreed that that experiments should be conducted on concentration camp inmates to determine the extent to which the Berka method might be usable.
The experiments later conducted have been described at length in dealing with the case of Schroeder. Due to his attendance at this meeting, Schaefer is- sought to be held, criminally responsible in connection with the sea water experiments.
The record has received careful attention from the Tribunal. You where have we been able to find that Schaefer was a principal in, or accessory to, or was otherwise criminally involved in or connected with the experiments mentioned. In fact, the record fails to show such as might be implied from his attendance at several meetings of the parties who were actively interested therein. Nowhere in the testimony or elsewhere is it revealed that Schaefer voted, for commencement or prosecution of the experiments or in any other manner aided in their execution.
CONCLUSION Military Tribunal I finds and adjudges the defendant Konrad Schaefer not guilty of the charges contained in the Indictment and directs that he be released from custody under the Indictment when the Tribunal presently adjourns.
HOVEN The defendant Hoven is charged under Counts Two and Three of the Indictment with special responsibility for and participation in Typhus and other vaccine experiments; gas oedema experiments; and the euthanasia program.
In Count Four he is charged with being a member, after 1 September 1939, of an organization declared criminal by the International Military Tribunal.
Hoven joined the SS in 1934 and the Nazi party in 1937. Soon after the outbreak of the war he joined the Waffen-SS. In October 1939 he became assistant medical officer in the SS Hospital at Buchenwald Concentration Camp. In 1941 he was appointed medical officer in charge of the SS troops stationed in the camp. He became assistant Medical Officer at the camp inmate hospital and in July 1942 he became Chief Camp Physician. He remained in the latter position until September 1943. At that time he was arrested on the order of the SS Police Court in Kassel for having allegedly murdered an SS non-commissioned officer who was a dangerous witness against Koch, the camp commander.
TYPHUS AND OTHER VACCINE EXPERIMENTS:
The vaccine experiments with which Hoven is charged were conducted at Buchenwald under the supervision of SS Sturmbannfuehrer Dr. Ding alias Ding-Schuler. They have already been described at length in other portions of this judgment.
The Prosecution has shown beyond a reasonable doubt that Hoven was a criminal participant in these experiments In collaboration with the SS camp administration he helped select the concentration camp inmates who became the experimental subjects. During the course of selection he exercised the right to include some prisoners and to reject others.
While perhaps not empowered to initiate new series of experiments on his own responsibility -- that apparently being a power which only Ding could exercise -- the defendant worked with Ding on experiments then in progress. He supervised the preparation of diary notes, fever charts, and report sheets of the experiments. Occasionally he injected some of the subjects with the vaccines. He acted as Ding's deputy in the conduct of the experiments. He was in command of Experimental Block 46 in Ding's absence. During the period of Hoven's activity in the experimental station no less than 100 inmates were killed as a result of the typhus experiments. Many of these victims were non-German nationals who had not given their consent to be used as experimental subjects.
GAS OEDEMA EXPERIMENTS:
It is asserted in an affidavit made by Dr. DingSchuler, who was in charge of Blocks 46 and 50, Buchenwald, that toward the end of 1942 a conference was held in the Military Medical Academy, Berlin, for the purpose of discussing the fatal effects of gas oedema serum on wounded persons. During the conference Killian of the Army Medical Inspectorate and the defendant Mugrowsky reported several cases in which wounded soldiers who had received oedema serum injections in high quantities died suddenly without apparent reason. Mugrowsky suspected that the fatalities were due to the phenol content of the serum. To help solve the problem Mrugowsky ordered Ding to take part in a euthanasia killing with phenol and to report on the results in detail. A few days later Hoven, in the presence of Ding, gave phenol injections to several of the concentration camp inmates with the result that they died instantly.
In accordance with instructions Ding made a report of the killings to his superior officer.
The fact that Hoven engaged in phenol killings is substantiated by an affidavit voluntarily made by Hoven himself prior to the trial which was received in evidence as a part of the case of the prosecution. In the affidavit Hoven makes the following statement: "There were many prisoners who were jealous of the positions held by a few political prisoners and tried to discredit them. These traitors were immediately killed and I was later notified in order to make out statements that they had died of natural causes.
"In some instances I supervised the killings of these unworthy inmates by injections of phenol at the request of the inmates, in the hospital assisted by several inmates. Dr. Ding came once and said I was not doing it correctly, and perform a some of the injections himself, killing three inmates who died within a minute.
"The total number of traitors killed was about 150, of whom 60 were killed by phenol injections, either by myself or under my supervision, and the rest were killed by heating, etc. by the inmates."
EUTHANASIA PROGRAM:
The details of the euthanasia program have been discussed by us at length in dealing with the charges against certain other defendants; consequently they will not be repeated here.
In the Hoven pre-trial affidavit, portions of which were quoted while discussing gas oedema serum experimentation, the defendant gives us a partial picture of the euthanasia program, in the following statement:
"In 1941 Koch, the Camp Commander, called all the important SS officials of the camp together and informed them that he had received a secret order from Himmler that all mentally and physically deficient inmates should be killed, including Jews. 300 to 400 Jewish prisoners of different nationalities were sent to the "Euthanasia Station"at B*rnburg for extermination. I was ordered to issue falsified statements of the death of these Jews, and obeyed that order. This action was known as '14 f '13."
When the defendant Hoven took the stand in his own defense he attempted to discredit the effects of the statements contained in his affidavit by testifying that the affidavit was taken as a result of interrogations propounded to him by the Prosecution in English and that he was not sufficiently familiar with the language to be fully aware of the inculpatory nature of the statements he was making.
The Tribunal is not impressed with these assertions. The evidence shows that prior to the war the defendant had lived for several years in the United States, where he had acquired at least an average understanding and comprehension of the English language. When he was on the witness stand the Tribunal questioned him at length in order to ascertain the extent of his knowledge of English, and in particular, of his understanding of the meaning of the words used by him in his affidavit. As a result of this questioning the Tribunal is convinced that no undue or improper advantage was taken of the defendant in procuring the affidavit, and that at the time of his interrogation by the Prosecution Hoven know and understood perfectly well the nature of the statements he was making.
The facts contained in the Hoven affidavit were convincingly substantiated by other evidence in tho record; the only real difference being that tho evidence shows the defendant to have been guilty of even many hundreds more murders than are admitted by him in his affidavit. As stated, in essence, by one of the Prosecution witnesses in connection with the subject: Hoven personally killed inmates in the hospital barracks by injection. These people were mostly suffering from malnutrition and exhaustion. Hoven must have killed 1,000 of every nationality. These inmates were killed on the initiative of Hoven with no request from the illegal camp administration or the political prisoners.
It is obvious from the evidence that throughout his entire Service at Buchenwald, Hoven attempted to serve three masters: The SS Camp Administration, the criminal prisoners, and the political prisoners of the camp. As a result he became criminally implicated in murders committed by all three groups involving tho deaths of non-German nationals, some of whom were prisoners of war and others of whom were civilians. In addition to these, he committed murders on his own individual responsibility. There can be nothing said in mitigation of such conduct. To the extent that the crimes committed by Hoven were not war crimes, they were crimes against humanity.
MEMBERSHIP IN CRIMINAL ORGANIZATION:
Under Count Four of the Indictment the defendant is charged with being a member of an organization declared criminal by the Judgment of the International Military Tribunal, namely, the SS.
The evidence shows that Hoven became a member of the SS in 1934, and remained in this organization throughout the war. As a member of the SS he was criminally implicated in the commission of War Crimes and Crimes against Humanity, as charged under Counts Two and Three of the Indictment.
C O N C L U S I O N Military Tribunal I finds and adjudges the defendant Waldemar Hoven guilty, under Counts Two, Three and Four of the Indictment.
THE PRESIDENT: Judge Sebring will continue with the reading of the judgment.
JUDGE SEBRING: BEIGLBECK
"The defendant Beiblbeck is charged with personal responsibility for, and participation in, seawater experiments.
The defendant Beiglbeck, an Austrian citizen, was a Captain in the Medical Department of the German Air Force from May 1941 until the end of the war. In June, 1944, while stationed at the hospital for Paratroopers at Tarvie, Italy, He receive orders from his military and medical superior, defendant Becker-Freyseng, to carry out seawater experiments at Dachau.
The seawater experiments have been described in detail in that portions of the Judgment dealing with defendants Schroeder and Becker-Freyseng.
The defendant Beigloeck testified that he reported to Berlin at the end of June 1944, where Becker-Freyseng told him the nature and purpose of the experiments. Upon that trip he also reported to and talked with the defendant Schroeder. From these conversations he learned that the prime purpose of the experiments was to test the process developed by Berka for making seawater potable and also to ascertain whether it would be better for a shipwrecked person in distress at sea to go completely without seawater or to drink small quantities thereof.
It appears from the record that the persons used in the experiments were 40 Gypsies of various nationalities who had been formerly at Auschwitz but who had been brought to Dachau under the pretex that they were to be assigned to various work details. These persons had been imprisoned in the concentration camps on the basis that they were "Associal persons." Nothing was said to them about being used as human subjects in medial experiments. When they reached Dachau some of them were told that they were being assigned to the seawater experiment detail.
Beigloeck testified that "before beginning the experiments he called the subjects together and told them the purpose of the experiments and asked them if they wanted to participate. He did not tell them the duration of the experiments, or that they could withdraw if ever they reached the physical or mental state that continuation of the experiment should seem to them to be impossible. The evidence is that none of the experimental subjects felt that they dared refuse becoming experimental subjects for fear of unpleasant consequences if they voiced any objections.
The defendant testified that pursuant to the order that had been given him, it was necessary that the subjects to thirst for a continuous period; and that the question of when, if ever, they should be relieved during the course of the experiment was a matter which he reserved for his own decision.
During the course of the experiments the subjects were locked in a room. As to this phase of the program the defendant testified that "They should have been locked in a lot better than they were because then they would have had no opportunity at all to get fresh water on the side."
At the trial the defendant produced clinical charts which he said were made during the course of the experiments and which, according to the defendant, showed that the subjects did not suffer injury.
On cross-examination the defendant admitted that some of the charts had been altered by him since he reached Nurnberg in order to present a more favorable picture of the experiments.
We do not think it necessary to discuss in detail what is shown by the charts either before or after the fraudulent alterations. We think it only necessary to say that a man who intends to rely on written evidence at a trial does not fraudulently alter such evidence from any honest or worthy motive.
The defendant claims that he was at all times extremely reluctant to perform the experiments with which he is charged, and did so only out of his sense ob obedience as a soldier to superior authority.
Under Control Council Law No. 10 such fact does not constitute but will be considered, if at all, only in mitigation of sentence.
In our view the experimental subjects were treated brutally. Many of them endured much pain and suffering, although from the evidence we cannot find that any deaths occurred among the experimental subjects.
It is apparent from the evidence that the experiments were essen-tailly criminal in their nature, and that non-German nationals were used without their consent as experimental subjects. To the extent that the crimes committed by defendant Beiglboeck were not war crimes they were crimes against humanity.
CONCLUSION Military Tribunal I finds and adjudges the defendant Wilhelm Beiglboeck guilty under Counts Two and Three of the Indictments We will now turn to the case of Pokorny.
POKORNY The defendant Pokorny is charged with special responsibility for and participation in criminal sterilization experiments, as set forth in Counts Two and Three of the indictment.
It is conceded by the prosecution that in constradistinction to all other defendants the defendant Polorny never held and position of responsibility in the Party or State Hierarchy of Nazi Germany. Neither was he a member of the Nazi Party or of the SS. Formerly a Czechoslovakian citizen, he became a citizen of the Greater German Reich, under the Munich Agreement of October 1938. During the war he served as a medical officer in the German Army and attained the rank of captain.
The only direct evidence bearing on the guilt of the defendant is a letter written by Pokorny to Himmler in October 1941, suggesting the use of a drug, caladium seguinum, as a possible means of medical sterilization of peoples of the occupied territories.
The letter follows:
"To the Reich Commissioner for the Consolidation of German Folkdom SS H i m m l e r, Chief of Police, BERLIN.
"I beg you to turn your attention to the following arguments. I have requested Professor Hoehn to forward this Letter to you, I have chosen this direct way to you in order to avoid the slower process through channels and the possibility of an indiscretion in regard to the eventually enormous importance of the ideas presented.
"Led by the idea that the enemy must not only be conquered but destroyed, I feel obliged to present to you, as the Reich Commissioner for the Consolidation of German Folkdom the following:
"Dr. Madaus published the result of his research on a medicinal sterilization (both articles are enclosed). Reading these articles, the immense importance of this drug in the present fight of our people occurred to me. If, on the basis of this research it were possible to produce a drug which after a relatively short time, affects an imperceptible sterilization on human beings, then we would have a new powerful weapon at our disposal. The Thought alone that the 3 million Bolsheviks, at present German prisoners, could be sterilized so that they could be used as laborers but he prevented from reproduction, opens the most far reaching perspectives.
"Madaus found that the sap of the Schweigrehr (Caladium seguinum) when taken by mouth or given as injection to male but also to female animals, also after a certain time produces permanent sterility. The illustrations accompanying the scientific articles are convincing.
If my ideas meet your approval the following course should be taken:
1.) Dr. Madaus must not publish any more such articles (The enemy listens.)
2.) Multiplying the plant (easily cultivated in greenhouses!)
3.) Immediate research on human beings (criminals!) in order to determine the dose and length of the treatment.
4.) Quick research of the constitutional formula of the effective chemical substance in order to
5.) produce it synthetically if possible.
"As German physician and Chief physician of the reserves of the German Wehrmacht, retired, 9d.R.a.D), I undertake to keep secret the purpose as suggested by me in this letter.
Heil Hitler!
Signed: Dr. Polorny Specialist for skin and veneral diseases."
Komotau, October 1941.
The defendant has attempted to explain his motives for sending the letter by asserting that for some time prior to its transmittal he had known of Himmler's intentions to sterilize all Jews and inhabitants of the Eastern territories and had hoped to find some means of preventing the execution of this dreadful program. He knew, because of his special experience as a specialist in skin and venereal diseases; that sterilization of human beings could not be effected by the administration of caladium seguinum. He thought, however, that if the articles written by Madaus could be brought to the attention to Himmler the latter might turn his attentions to the unobtrusive method for sterilization which had been suggested by the articles and thus be diverted, at least temporarily, from continuing his program of castration and sterilization by well-known, tried, and tested methods. Therefore the letter was written -- so explained the defendant -- not for the purpose of furthering, but of sabotaging the program.
We are not impressed with the defense which has been tendered by the defendant and have great difficulty in believing that he was motivated by the high purposes which he asserted impelled him to write the letter. Rather are we inclined to the view that the letter was written by Porkorny for very different and more personal reasons.
Be that however as it may, every defendant is presumed to be innocent until he has been proven guilty. In the case of Polorny the Prosecution has failed to sustain the burden. As monstrous and base as the suggestions in the letter are, there is not the slightest evidence that any steps were ever taken to put them into execution by human experimentation. We find, therefore, that the defendant must be acquitted -- not because of the defense tendered, but in spite of it.
CONCLUSION Military Tribunal I finds and adjudges that the defendant Adolf Polorny is not guilty of the charges contained in the Indictment, and directs that he be discharged from custody under the Indictment when the Tribunal presently adjourns.
JUDGE SEVERING: Judge Crawford will continue with the reading of the judgment.
JUDGE CRAWFORD: The case of the Defendant Oberheuser OBERHEUSER The defendant Oberheuser is charged under Counts Two and Three of the indictment with Sulfanilamide, Bone, Muscle and Nerve Regeneration and Bone Transplantation, and Sterilization Experiments.
The charge of participation in the sterilization experiments has been abandoned by the prosecution and will not be considered further.
The defendant Oberheuser joined the league of German Girls (B. D. M.) in 1935 and held the rank of "Block Leader". In August 1937 she became a member of the Nazi Party. She was also a member of the Association of National Socialist Physicians. She volunteered for the position of a camp doctor in the women's department of the Ravensbruck Concentration camp in 1940, and remained there until June 1943. She was then given a position as assistant physician in the Hohenlychen Hospital under the defendant Gebhardt.
Regarding her connection with both the Sulfanilamide and the Bone, Muscle and Nerve Regeneration and Bone Transplantation Experiments, the same facts are applicable as were presented in the case of defendants Fischer and Gebhardt.
Fischer and Oberheuser were Gebhardt's active agents in carrying out these experiments. They did a great deal of the actual work. They personally committed atrocities involved therein.
A few facts produced in evidence regarding the special work of defendant Oberheuser in these experiments are entitled to comment.
Oberheuser was thoroughly aware of the nature and purpose of the experiments. She aided in the selection of the subjects, gave them physical examinations, and otherwise prepared them for the operation table. She was present in the operating room at the time of the operations and assisted in the operational procedures. She faithfully cooperated with Gebhardt and Fischer at the conclusion of each operation by deliberately neglecting the patients so that the wounds which had been given the subjects would reach the maximum degree of infection.
Testimony of the witness Zofia Maczka, an X-ray technician in the camp at Ravensbruck, is that deaths occurred among the experimental subjects. Most of these deaths could have been averted by proper post-operative care or proper treatment or by the amputation of badly infected members.
In one instance -- the ca*e of a Krystyna Dabska -- small pieces of bone were cut from both legs of the subject. Witness Maczka testified that she read on the cast of the patient that one one leg periosteum had been left and on the other leg periosteum had been removed to ether with bone. Because she was of the opinion that the purpose of the experiment had been to check regeneration, the witness asked the defendant Oberheuser, "How do you expect to get regeneration of bone if the bones are with periosteum?" To this the defendant replied. "That is just what we want to check."
Non-consenting non-German nationals were used in at least some of the experiments.
Many of them died as a result of the experiments. To the extent that the crimes committed were not way crimes, they were crimes against humanity.
CONCLUSION Military Tribunal I finds and adjudges that the defendant Oberheuser is guilty under Counts Two and Three of the indictment.
JUDGE SEVERING: The case of the Defendant Fischer.
FISCHER The defendant Fischer is charged under Counts Two and Three with Sulfanilamide and Bone, Muscle and Nerve-Regeneration and BoneTransplantation Experiments.
Fritz Fischer joined the Allgemeine-SS in February 1934 and the NSDAP in 1939. In the latter year he joined the Waffen-SS and was assigned to the SS unit in the Hohenlychen Hospital as a physician subordinated to the defendant Gebhardt. In June 1940 he was transferred to the SS regiment Leibstandarte "Adolf Hitler", and returned the same year to Hohenlychen as assistant physician to Gebhardt, where he remained until May 1943. He then served as a surgeon on "both the Eastern and Western Fronts and, after having been wounded in August 1944, came back to Hohenlychen as a patient. In December 1944 he was assigned to the Charity Hospital in Berlin, but returned again to Hohenlychen as Gebhardt's assistant in April 1945. In the Waffen--SS he attained the rank of Strurmbannfuchrer (Major).
SULFANILAMIDE EXPERIMENTS:
Gebhardt, as shown elsewhere in this Judgment, was in personal charge of the work being done in this field by his assistant Fritz Fischer. That the latter performed most of the Sulfanilamide experimental work is not denied by him; on the contrary, he freely admits it. The defense offered in his behalf is twofold; that the experimental subjects were to have alleged death sentences, then impending, commuted to something less severe in the event they survived the experiments; and that defendant Fischer was acting under military orders from his superior officer Professor Gebhardt. These defenses have been considered rejected in other parts of this Judgment.
It is true, however, that paragraph 4 (b) of Article II of Control Council Law No. 10 reads:
"The fact that any person acted pursuant to the order of his government or of a superior does not free him from responsibility for crime, but may be considered in mitigation."
It is unnecessary to take up and answer all the arguments that might be presented upon whether or not Fischer is entitled to a mitigation of sentence due to the circumstances claimed as the basis of such mitigation. He acted with the most complete knowledge that what he "was doing was fundamentally criminal, even though directed by a superior. Under the circumstances his defense must be rejected, and he must be held to be guilty as charged.
BONE, MUSCLE AND NERVE REGENERATION AND BONE TRANSPLANTATION:
The experiments have been discussed in connection with the case of the defendant Gebhardt, who was assisted therein by the defendant Fischer. Testimony and exhibits now constituting parts of the record in this case reveal that Fischer has offered no substantial defense to the charge. Indeed, criminal connection with these experiments is admitted, and the admission includes the defendant's own testimony that he personally performed at least some of the operations. It only remains for the Tribunal to hold that on the specification above mentioned the defendant Fischer is guilty.
To the extent that the crimes committed by defendant Fischer were not war crimes they were crimes against humanity.
MEMBERSHIP IN CRIMINAL ORGANIZATION Under Count Four of the Indictment Fritz Fischer is charged with being a member of an organization declared criminal by the Judgment of the International Military Tribunal, namely the SS.
The evidence shows that Fritz Fischer became a member of the SS in 1934 and remained in this organization until the end of the war. As a member of the SS he was criminally implicated in the commission of War Crimes and Crimes against Humanity, as charged under Counts Two and Three of the Indictment.