THE PRESIDENT: Yesterday, counsel for defendant Sievers offered an affidavit of the defendant Sievers. The Tribunal sustained an objection on the part of the Prosecution to the admission of that affidavit. If counsel for defendant Sievers wishes to reoffer the document in evidence, the Tribunal will rescind its ruling and admit the affidavit in evidence and give it an exhibit number in accordance with the sequence of the affidavits on the part of the defendant Sievers.
DR. WEISGERBER: (Counsel for defendant Sievers) Mr. President, at the moment I do not have the document before me. With the permission of the President, I shall get it immediately and offer it to the Tribunal.
THE PRESIDENT: The Tribunal admits the document in evidence. The exhibit number may be added to the document and the Prosecution will be given a copy with the exhibit number. The document may be filed with the Secretary General as admitted in evidence with Sievers' appropriate exhibit number.
DR. WEISGERBER: Thank you, Your Honor.
MR. HARDY: It is my understanding, Your Honor, the Tribunal will adjourn until Wednesday to hear the legal arguments on the conspiracy charge.
THE PRESIDENT: The session on Wednesday will be a combined session of all Tribunals. It is not a part of the trial of Tribunal No. 1. The Tribunal will convene in back of this court room on next Wednesday, July 9th to hear arguments on the legal grounds presented with demurrers to the charge of conspiracy as an act contained in the indictment. The session will convene Wednesday morning at 9:30 o'clock.
MR. HARDY: Will all the defendants be present at that time?
THE PRESIDENT: The defendants will not be present. It is merely a legal argument and the defendants in all the trials could not be present in court as it is not a matter of submitting evidence, but arguing a pure question of law. The presence of the defendants in the court is unnecessary, according to the ruling of the Tribunal.
MR. HARDY: Then the Tribunal will again convene on the 14th of July?
THE PRESIDENT: The Tribunal will then convene at 9:30 o'clock on the morning of July 14th to hear the arguments of counsel in accordance with the procedure to be followed with arguments for the prosecution and defense. When counsel for the defendants have determined how long they will take for their arguments, if they Will take the matter up with me sometime next week and I will be glad to hear from them.
DR. SAUTER: Mr. President, before the Tribunal adjourns, I should like to make an application to you on behalf of defense counsel. Tomorrow we shall not be able to talk to our clients because it is a Holiday, Saturday the prison downstairs is closed for defense counsel and that also applies to Sunday. A number of the defense counsel have expressed the wish that before the conclusion in submitting of their closing briefs and pleas, they would once more like to discuss a number of essential points with their clients.
We would be grateful to you, Mr. President, if you could see to it that defense counsel could get into contact with the defendants of this trial - this trial only - either tomorrow morning or Saturday morning in order to enable us to conclude our closing briefs and final pleas and in order that there be no delay.
THE PRESIDENT: I shall take that matter up with the prison authorities and arrange for some time, either tomorrow or Saturday, any reasonable time that counsel desires, for consultation with their clients as requested.
DR. SAUTER: Perhaps on Saturday morning or Saturday afternoon. There will probably be some difficulties tomorrow.
THE PRESIDENT: If Dr. Sauter and another counsel will come to my office when the Tribunal is in recess, we shall discuss the matter and I shall take it up with the prison authorities with the request of the Tribunal that they grant the request to permit such consultations as desired.
DR. SAUTER: Thank you very much, Mr. President.
DR. PELCKMANN (Counsel for defendant Schaefer.) I should one more like to remind you of an application, which I already put to you sometime ago. I have the courage, as well as the modesty, to declare the following quite openly. It is neither the inefficiency of the Prosecution nor the skill of the defense counsel, but the matter of a just matter, which with overwhelming logic demands that the defendant Schaefer be dismissed and he be released from prison.
I have fully understood the precaution taken by the Tribunal in not complying with my application in that regard in my opening statement. It was still before the submission of evidence on behalf of the defense. Even they very submission of evidence on the part of the Prosecution shows that the defendant cannot be guilty but there, was still then the possibility that in the submission of evidence on behalf of the defense for the other co-defendants, he could be incriminated. Perhaps even his examination or cross-examination could incriminate him, even that could happen. I also understand why the High Tribunal has postponed my renewed application at the end of Schaefer's examination until the end of the entire submission of evidence. Theoretically, there could still have appeared incriminating evidence against the defendant Schaefer. We witnessed this until the very end. The gypsies appeared with considerable surprises of various nature, but the longer the submission of evidence of the sea-water case, after Schaefer's examination lasted, the more it became obvious that Schaefer had nothing at all to do with it. His name was not even mentioned, but with one single exception. The expert, Professor Ivy, mentioned his name repeatedly, always lauding him and giving him credit. He emphasized particularly Schaefer's rejection of the Berka method, his rejection of the experiments with that method and his reasons for it had been the only proper thing to do.
We feel the only correct thing and even without closing briefs or without pleas, it has become clear already today, Schaefer is not guilty.
I even maintain that no reasonable suspicion of having committed a crime has ever existed. For many months he has been robbed of his personal liberty, which he thought he had regained when the American troops occupied Germany.
I ask the High Tribunal to set an example with this case of Schaefer by recognizing the unconditional liberty of every individual, every German, especially after these periods of war, which have confused these concepts and which confusion still lasts until today.
The regulations of procedure of the Military Tribunal gives you, Your Honors, the formal authorization to comply with my application. Even if you cannot give a final decision now, please decide upon the combination of his imprisonment, We are still seven weeks away from the handing down of the judgment. During this time Schaefer will still be robbed of his most valuable freedom. It is a demand made by Justice that you decide the following matter and render justice. There is no suspicion at this time, there is no danger that the defendant will try to escape, there is no danger that he will in any way camouflage his acts or destroy evidential material or that he will try to influence witnesses, therefore, Schaefer should be released from prison.
THE PRESIDENT: The Tribunal has heard the application of counsel for Defendant Schaefer, which is a motion for the dismissal of the case, at the conclusion of all the evidence, this motion as these previously made on behalf of the Defendant Schaefer, will be taken under advisement by the Tribunal.
Is there any further matter to be called to the attention of the Tribunal?
The Tribunal then declares the evidence closed and the Tribunal will be in recess until Monday morning, July 14th at 9:30 o'clock when the arguments of counsel for the prosecution and the defense will be heard.
THE MARSHAL: The Tribunal will be in recess until Monday morning July 14th at 9:30 o'clock.
(The Tribunal adjourned until 14 July, at 0930 hours.)
Official Transcript of the American MilitaryTribunal in the matter of the United States of America against Karl Brandt, et al, defendants, sitting at Nuernberg, Germany, on 14 July 1947, 0930, Justice Beals presiding.
THE MARSHAL: Persons in the courtroom will please find their seats.
The Honorable, the Judges of Military Tribunal I. Military Tribunal I is now in session. God save the United States of America and this honorable Tribunal. There will be order in the court.
THE PRESIDENT: Mr. Marshal, have you ascertained if the defendants are all present in court?
THE MARSHAL: May it please Your Honor, all the defendants are present in the court.
THE PRESIDENT: 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.
The Tribunal has convened this morning to hear arguments of the prosecution and counsel for defense in the case which has been pending before this Tribunal. Counsel for the prosecution may now proceed with its argument.
MR. MC HANEY: May it please the Tribunal:
INTRODUCTION Today marks the closing week of this trial, which began on December 9, 1946.
Today we have behind us 133 trial days, approximately 33 of which were consumed by the prosecution in presenting the case-inchief and rebuttal evidence. Thirty-two witnesses gave evidence orally for the prosecution and thirty witnesses, in addition to the twentythree defendants, gave evidence for the defense. The prosecution submitted in evidence 570 exhibits, most of which were German documents captured by the Allied armies. Defense exhibits totalled 855, consisting primarily of affidavits. By the time the judgment has been read, the record will exceed 12,000 pages.
It is appropriate, in looking back over the history of this proceeding, to note the fairness with which the trial has been conducted. Whatever the defendants could say in their behalf, they were allowed to say.
The Tribunal has been unstinting in its efforts to procure such witnesses, documents, and facilities as the defense has requested. As Justice Jackson has stated, "They have been given the kind of a trial which they, in the days of their pomp and glory, never gave to any man."1 Several of these defendants are peculiarly able to appreciate that fact to the fullest. The defendant Karl Brandt, for example, is no stranger to Nazi justice. In April 1945, as a result of difficulties with Hitler and Bormann, he was afforded a trial of a few hours on a charge of treason. Tried by an SS Obergruppenfuehrer, he was sentenced to death. Only the confusion of the dying days of the war saved him for this reunion. Brandt admitted to this Tribunal that there was some fault to be found with that trial because, as he put it, "the sentence had been established beforehand."2 The responsibility of a fair trial to the defendants has been discharged.
So also for the prosecution has that obligation to the peoples and races on whom the scourge of these crimes was laid. The crimes which these defendants perpetrated in the name of medical science have been established by clear and overwhelming proof which is indelibly written in the record of this proceeding. No one can doubt that these incredible events were fact and not fable. The time for suspended judgment is now passed. The time for decision has been reached.
Before proceeding to outline the prosecution's case, it may perhaps be desirable to anticipate several legal questions which will undoubtedly be raised with respect to war crimes and crimes against humanity, as defined in Article II of Control Council Law No. 10. Law No. 10 is, of course, the law of this case and its terms are conclusive upon every party to this proceeding. This Tribunal is, we respectfully submit, bound by the definitions in Law No. 10, just as the International Military Tribunal was bound by the definitions in the London Charter. It 1. I.M.T. transcript, p. 14333 2. Transcript, p. 2622 was stated in the I.M.T. judgment that:
"The jurisdiction of the Tribunal is defined in the Agreement and Charter, and the crimes coming within the jurisdiction of the Tribunal, for which there shall be individual responsibility, are set out in Article 6. The law of the Charter is decisive, and binding upon the Tribunal...
* * * * * * * "The Tribunal is, of course, bound by the Charter, in the definition which it gives both of war crimes and crimes against humanity."
1 In outlining briefly the prosecution's conception of some of the legal principles underlying war crimes and crimes against humanity, I shall, with the Tribunal's permission, adopt some of the language from the opening statement of the prosecution in the case against Friedrich Flick, et al.
, now pending before Tribunal No. IV. General Taylor there said:
"The definitions of crimes in Law No. 10, and the comparable definitions in the London Agreement and Charter of 8 August 1945, are statements and declarations of what the law of nations was at that time and before that time. They do not create 'new' crimes; Article II of Law No. 10 states that certain acts are 'recognized' as crimes. International law does not spring from legislation; it is a 'customary' or 'common' law which develops from the 'usages established among civilized peoples' and the 'dictates of the public conscience.' (2) As they develop, these usages and customs become the basis and reason for acts and conduct, and from time to time they are recognized in treaties, agreements, declarations, and learned texts. The London Charter and Law No. 10 are important items in this stream of acts and declarations through which international law grows; they are way stations from which the outlook is both prospective and retrospective, but they are not retroactive. Mr. Henry L. Stimson has recently expressed these principles with admirable clarity: (3) 'International law is not a body of authoritative codes or statutes; it is the gradual expression, case by case, of the moral judgments of the civilized world.
As such, it corresponds precisely to the common law of Anglo-American tradition. We can understand the law of Nuremberg only if we see it for what it is - a great new case in 1. Trial of the Major War Criminals, Vol.
1, pp. 218, 253.
2. Hague Convention No. IV of 18 October 1907.
3. "The Nuremberg Trial: Landmark in Law", Henry L. Stimson, published in "Foreign Affairs", January 1947.
the book of international law, and not a formal enforcement of codified statutes.'
"Law No. 10 is all this and something more besides. It is a legislative enactment by the Control Council, and is therefore part of the law of and within Germany. One of the infirmities of dictatorship is that, when it suffers irretrievable and final military disaster, it usually crumbles into nothing and leaves the victims of its tyranny leaderless amidst political chaos. The Third Reich had ruthlessly hunted down every man and woman in Germany who sought to express political ideas or develop political leadership outside of the bestial ideology of Nazism. When the Third Reich collapsed, Germany tumbled into a political vacuum. The Declaration by the Allied Powers of 5 June, 1945, announced the 'assumption of supreme authority' in Germany 'for the maintenance of order' and 'for the administration of the country', and recited that:
'There is no central government or authority in Germany capable of accepting responsibility for the maintenance of order, the administration of the country, and compliance with the requirements of the victorious powers.'
Following this declaration, the Control Council was constituted as the repository of centralized authority in Germany. Law No. 10 is an enactment of that body, and is the law of Germany, although its substantive provisions derive from and embody the law of nations. The Nurnberg Military Tribunals are established under the authority of Law No. 10,1 and they render judgment not only under international law as declared in Law No. 10, but under the law of Germany as enacted in Law No. 10. The Tribunals, in short, enforce both international law and German law, and in interpreting and applying Law No. 10, they must view Law No. 10 not only as a declaration of international law, but as an enactment of the occupying powers for the governance of and administration of justice in Germany. The enactment of Law No. 10 was an exercise of legislative power by the four countries to which the Third Reich surrendered, and, as was held by the International Military Tribunal: 2 '......the undoubted right of these countries to legislate for the occupied territories has been recognized by the civilized world.
'"
MR. McHANEY: That's the end of the quotation from General Taylor's statement. War Crimes are defined in Law No. 10 as atrocities or offenses in violation of the laws or customs of war. This definition is based primarily upon the Hague Conventions of 1907 and the Geneva Con 1. Control Council Law No. 10, Article III, pa.
rs 1 (d.) and 2; Military Government Ordinance No. 7, Article II.
2. Judgment of the International Military Tribunal, Vol. I, Trial of the Major War Criminals, p. 218.
vention of 1929, which declare the law of nations at those times with respect to land warfare, the treatment of prisoners of war, the rights and duties of a belligerent power when occupying territory of a hostile state, and other matters. The laws and customs of war apply between belligerents, but not domestically or among allies. Crimes by German nationals against other German nationals are not War Crimes, nor are acts by German nationals against Hungarians or Roumanians. The War Crimes charged in this Indictment all occurred after 1 September 1939, and it is therefore unnecessary to consider the somewhat narrow limitation of the scope of War Crimes by the International Military Tribunal to acts committed after the outbreak of the war. One might argue that the occupations of Austria and the Sudetenland in 1938 and of Bohemia and Moravia in March 1939 were sufficiently similar to a state of belli gerency to bring the laws of war into effect but such questions are academic for purposes of this case.
However, in the case of some of the defendants, and this is especially true with respect to Gebhardt, Fischer, and Oberhauser in connection with the sulfanilamide experiments, it is to be expected that the argument will be made that crimes against Polish, and perhaps also Czech, nationals do not constitute War Crimes within the meaning of Control Council Law No. 10. This argument is based upon the proposition that Germany was no longer bound by the rules of land warfare in many of the territories occupied during the war because Germany had completely subjugated those countries and incorporated them into the Third Reich, and therefore Germany had the authority to deal with the occupied countries as though they were part of Germany. Thus, the defense placed in evidence the Russo-German Boundary and Friendship Treaty of 30 December 1939 as well as certain German decrees concerning the administration of occupied Poland.1 Without stopping to argue the poing that that part of Poland administered by the so-called Governor General, from which came the Polish subjects for the sulfanilamide experiments, was never incorporated into the Reich, it will be sufficient to point out that this 1. Gebhardt Exhibits 13, 14 and 15.
argument was disposed of by the International Military Tribunal. In its Judgment, the following was said:
"In the view of the Tribunal, it is unnecessary in this case to decide whether this doctrine of subjugation, dependent as it is upon military conquest, has any application where the subjugation is the result of the crime of aggressive war. The doctrine was never considered to be applicable so long as there was any army in the field attempting to restore the occupied countries to their true owners, and in this case, therefore, the doctrine could not apply to any territories occupied after 1 September, 1739."1 The argument also has no validity with respect to Czech nationals.
The International Military Tribunal said that:
"As to War Crimes committed in Bohemia and Moravia, it is a sufficient answer that these territories were never added to the Reich, but a mere protectorate was established over them."1 In connection with the charge of Crimes against Humanity, it is also anticipated that an argument will be made by the defense to the effect that crimes committed by German nationals against other German nationals cannot constitute Crimes against Humanity as defined by Article II of Control Council Law No. 10 and hence are not within the jurisdiction of this Tribunal.
The evidence of the Prosecution has proved that in substantially all of the experiments prisoners of war or civilians from German occupied territories were used as subjects. This proof stands uncontradicted save by general statements of the defendants that they were told by Himmler or some unidentified person that the experimental subjects were all German criminals or that they spoke fluent German. Thus, for the most part, the acts here in issue constitute War Crimes and hence, at the same time, Crimes against Humanity. Certainly there has been no proof whatever that an order was ever issued restricting the experimental subjects to German criminals as distinguished from non-German nationals. If, in this or that minor instance, the proof has not disclosed the precise nationality of the unfortunate victims or 1. Trial of the Major War Criminals, Vol.
1, p. 254 has been shown them to be Germans, we may rest assured that it was merely a chance occurrence.
Be that as it may, the Prosecution does not wish to ignore a challenge to the jurisdiction of the Tribunal even though it is of minor importance to this case. One thing should be made clear at the outset: we are not here concerned with any question as to jurisdiction over crimes committed before September 1, 1939, whether against German nationals or otherwise. That subject has been mooted and is in issue in another case now on trial, but the crimes in this case all occurred after the war began.
Moreover, we are not concerned with the question whether crimes against humanity must have been committed "in execution of or in connection with any crime within the jurisdiction of the Tribunal". The International Military Tribunal construed its Charter as requiring that Crimes against Humanity be committed in execution of, or in connection with, the crime of aggressive war. Whatever the merit of that holding, the language of the Charter of the International Military Tribunal which led to it is not included in the definition of Crimes against Humanity in Control Council Law No. 10. There can be no doubt that Crimes against Humanity as defined in Law No. 10 stand on an independent footing and constitute crimes per se. In any event, the crimes with which this case is concerned were in fact all "committed in execution of, or in connection with, the aggressive war". This is true not only of the medical experiments, but also of the euthanasia program, pursuant to which a large number of non-German nationals were killed. The Judgment of the International Military Tribunal expressly so holds.1 Thus, it is clear that the only issue which is raised in this case as to Crimes against Humanity is whether the Tribunal has jurisdiction over crimes committed by Germans against Germans.
Does the definition of Crimes against Humanity in Control Council Law No. 10 comprehend crimes by Germans against Germans of the type with which this case is concerned. The provisions of Law No. 10 are binding upon the Tribunal 1. Trial of the Major War Criminals, pp.
231, 247, 252, 254, 301.
as the law to be applied to the case.1 The provisions of Section 1(c) of Article II are clear and unambiguous. Crimes against Humanity are there defined as:
"Atrocities and offenses, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated."
The words "any civilian population" cannot possibly be construed to exclude German civilians. If Germans are deemed to be excluded, there is little or nothing left to give purpose to the concept of Crimes against Humanity. War Crimes include all acts listed in the definition of Crimes against Humanity when committed against prisoners of war and the civilian population of occupied territory. The only remaining significant groups are Germans and nationals of the satelite countries, such as Hungary or Roumania. It is one of the very purposes of the concept of Crimes against Humanity, not only as set forth in Law No. 10 but also as long recognized by international law, to reach the systematic commission of atrocities and offenses by a State against its own people. The concluding phrase of the definition of Crimes against Humanity, which is in the alternative, makes it quite clear that crimes by Germans against Germans are within the jurisdiction of this Tribunal. It reads "or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated". This reference to "domestic laws" can only mean discriminatory and oppressive legislation directed against a State's own people, as for example the Nurnberg laws against German Jews.
The matter is put quite beyond doubt by Article III of Law No. 10, which authorizes each of the occupying powers to arrest persons suspected of having committed crimes defined in Law No. 10, and to bring them to trial "before an appropriate tribunal". Paragraph 1(d) of Article III further provides that:
"Such Tribunal may, in the case of crimes committed by 1. Trial of the Major Mar Criminals, pp.
174, 253.
persons of German citizenship or nationality against other persons of German citizenship or nationality, or stateless persons, be a German court, if authorized by the occupying authorities."
This constitutes an explicit recognition that acts committed by Germans against other Germans are punishable as crimes under Law No. 10 according to the definitions contained therein, in the discretion of the occupying power. This has particular reference to Crimes against Humanity, since the application of Crimes against Peace and War Crimes, while possible, is almost entirely theoritical. If the occupying power fails to authorize German courts to try crimes committed by Germans against other Germans (and in the American zone of occupation no such authorization has been given), then these cases are tried only before non-German tribunals, such as these Military Tribunals.
What would be the effect of a holding that crimes by Germans against Germans can under no circumstances be within the jurisdiction of the Tribunal? Is this Tribunal to ignore the proof that tens of thousands of Germans were exterminated pursuant to a secret decree, because a group of criminals in control of a police State thought them "useless eaters" and an unnecessary burden, or that German prisoners wore murdered and mistreated by the thousands in concentration camps, in part by medical experimentation? Military Tribunal II in the Milch case held that crimes against nationals of Hungary and Roumania were Crimes against Humanity. There is certainly no reason in saying that there is jurisdiction over crimes by Germans against Hungarians but not against Germans.
The Judgment of the International Military Tribunal shows a clear recognition of its jurisdiction over crimes by Germans against Germans. After reviewing a large number of inhumane acts in connection with War Crimes and Crimes against Humanity, the Tribunal concluded by saying that:
".....from the beginning of the war in 1939 War Crimes were committed on a vast scale, which were also Crimes against Humanity; and insofar as the inhumane acts charged in the Indictment, and committed after the beginning of the war, did not constitute War Crimes, they were all committed in execution of, of in connection with, the aggressive war, and therefore constituted Crimes against Humanity."
1 Since War Crimes are necessarily also Crimes against Humanity, the broader definition of the latter can only refer to crimes not covered by the former, namely, crimes against Germans and nationals of countries other than those occupied by Germany.
Moreover, the Prosecution in that case maintained that the inhumane treatment of Jews and political opponents in Germany before the war constituted Crimes against Humanity. The Tribunal said in this connection:
"With regard to Crimes against Humanity there is no doubt whatever that political opponents were murdered in Germany before the war, and that many of them were kept in concentration camps in circumstances of great horror and cruelty. The policy of terror was certainly carried out on a vast scale, and in many cases was organized and systematic. The policy of persecution, repression, and murder of civilians in Germany before the war of 1939, who were likely to be hostile to the Government, was most ruthlessly carried out. The persecution of Jews during the same period is established beyond all doubt."1 The Tribunal was there speaking exclusively of crimes by Germans against Germans.
It held that such acts were not Crimes against Humanity, as defined by the Charter, not because they were crimes against Germans, but because they were not committed in execution of, or in connection with, aggressive war. Indeed, the Tribunal went on to hold that the very same acts committed after the war began were Crimes against Humanity. No distinction was drawn between the murder of German Jews and Polish or Russian Jews. And, noreover, no distinction was drawn between criminal medical experimentation on German and non-German concentration camp inmates or the murder of German and non-German ci 1 ibid, p. 254.
vilians under the euthanasia program. The Tribunal held them all to be War Crimes and/or Crimes against Humanity.
What is charged in the Indictment against these defendants? What is the nature of the crimes for which they are on trial? In Count I of the Indictment all of the defendants are charged with having participated in a common plan or conspiracy to commit, and which involved the commission of, criminal medical experiments on involuntary human subjects, which resulted in murders, atrocities, and other inhumane acts. The Tribunal has already heard argument on the question of jurisdiction to entertain the charge of conspiracy, and accordingly I shall limit myself, at a later point, to a few remarks on the law of conspiracy as such, the forms of participation set forth in Section 2 of Article IV of Law No. 10, and the application of both to the facts of this case.
Under Counts II and III (War Crimes and Crimes against Humanity, respectively), certain of the defendants are charged with participation in the murder of persons pursuant to the euthanasia program, the murder and ill-treatment of tubercular Poles, and the murder of 112 Jews for a skeleton collection. Under Paragraphs 6 and 11 of the same counts, all of the defendants are charged with participation in criminal medical experimentation on human subjects without their consent, which resulted in murders, atrocities, and other inhumane acts. It should be emphasized, as the Prosecution has frequently pointed out during the trial, that the basic charge under Paragraphs 6 and 11 of the Indictment is participation in criminal experiments, whatever those experiments may have been. Particulars concerning certain experiments were set forth in the Indictment and certain of the defendants were listed as having been specially active in and responsible for them. This, nowever in no way limits the Prosecution in supporting the basic charge by whatever evidence is in the record. It is a completely erroneous conception of the Indictment to view it as charging this or that defendant with having participated in this or that experiment.
This amounts to confusing the proof to sustain the charge with the charge itself.
Moreover, the proof with respect to a given defendant should not be viewed by dismembering it and examining its separate parts. The evidence must be viewed as a whole to reach a judgment as to the real guilt of the defendants. It is impossible to assess the cumulative effect of the proof if the documents are separately considered and weighed as so many pieces of lifeless paper. I venture to predict that in the closing statements of defense counsel there will be a tedious torturing of each document, each to be discarded before proceeding to the next, without ever meeting the case established by the full sweep of the proof. One is sometimes able to break individual sticks from a tree. But if those same sticks are bound together, the result is unbreakable. So it is with proof.
No more can the experiments be viewed as hermetically scaled containers. Various experiments must be considered together to appreciate the full guilt of a defendant even though a judgment of guilt may not be sought with respect to each such experiment. For example, all of the Luftwaffe defendants would have the Tribunal find that in the high altitude experiments the dead Rascher was somehow exclusively responsible for all fatalities, even though at the time he was on active duty with the Luftwaffe. When the defendants Ruff and Romberg allegedly first learned of his "extracurricular" murders by having one killed in front of Romberg, they only hung around Dachau working with Rascher for another 6 weeks or so, and after all, according to Romberg, he saw just two more men killed in that time. Now, if one were somehow to think for a moment that there is some faint mitigating circumstance in the exemplary conduct of these two knights of Luftwaffe medical virtue, let us test the truth of their alleged disassociation from Rascher by looking at the freezing experiments which began less than 30 days after Ruff, Romberg, and Rascher published their joint report on the high altitude "tea party". Did the Luftwaffe Medical Service have anything to do with these experiments on inmates in Dachau after that blackguard Rascher had killed men in their decompression chamber?