period in question Yamashita failed to provide effective control of his troops as was required by the circumstances. The Supreme Court stated the question for their decision in the following languages "It is not denied that such acts directed against the civilian population of an occupied country and against prisoners of war are recognized in international law as violations of the law of war ..... But it is urged that the charge does not allege that petitioner has either committed or directed, the commission of such acts, and consequently that no violation is charged against him.
But this overlooks the fact that the gist of the charge is an unlawful breach of duty by the petitioner as an army commander to control the operations of the members of his command by permitting them to commit the extensive and widespread atrocities specified. The question then is whether the law of war imposes on an army commander a duty to take such appropriate measures as are within his power to control the troops under his command for the prevention of the specified acts which are violations of the law of war and which are likely to attend the occupation of hostile territory by an uncontrolled soldiery, and whether he may be charged with personal responsibility for his failure to take such measures when violations result".
The Court held that the charge was sufficient and that the law of war "plainly imposed on the petitioner, who at the time specified was military governor of the Philippines, as well as commander of the Japanese forces, an affirmative duty to take such measures as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian population. This duty of a commanding officer has heretofore been recognized, and its breach penalized by our own military tribunals".
This decision is squarely in point as to the criminal responsibility of our defendants in this dock who had the power and authority to control the agents through whom these crimes were committed. It is not incumbent upon the Prosecution to show that this or that defendant was familiar with all of the details of all of these experiments. Indeed, in the Yamashita case, there was no charge or proof that he had knowledge of the crimes. In the case before the International Military Tribunal, proof was submitted that the Reichsbank, of which the defendant Funk was president, had received from the SS the personal belongings of victims who had been exterminated in concentration camps.
In that connection the Tribunal said in its Judgment:
"Funk has protested that he did not know that the Reichsbank was receiving articles of this kind. The Tribunal is of the opinion that he either knew what was being received or was deliberatelyclosing his eyes to what was being done".
But we need not discuss the requirement of knowledge on the facts of this case. It has been repeatedly proved that those responsible leaders of the German medical services in this dock not only know of the systematic and criminal use of concentration camp inmates for murderous medical experiments, but also actively participated in such crimes. Can it be held that Karl Brandt had no knowledge of these crimes when he personally initiated the jaundice experiments by Dohmen in the Sachsenhausen Concentration Camp and the phosgene experiments of Bickenbach? Can it be found that he knew nothing of the criminal euthanasia program when he was charged by Hitler with its execution? Can it be said that Handloser had no knowledge when he participated in the conference of 29 December 1941 There it was decided to perform the Buchenwald typhus crimes, when reports were given on criminal experiments at meetings called and presided over by him? Was Rostock an island of ignorance when he arranged the program for an presided over the meetings at which Gebhardt and Fischer lectured on their sulfanilamide experiments, when he classified as "urgent" the criminal research of Hirt, Haagen, and Bickenbach? Did Schroeder lack knowledge when he personally requested Himmler to supply him with inmates for the sea water experiments? Can it be found that Genzken had no knowledge of those crimes when the miserable Dr. Ding was subordinated to and received orders from him in connection with the typhus experiments in Buchenwald, when his office supplied Rascher with equipment for the freezing experiments? Was Blome insufficiently informed in the fact of proof that ho collaborated with Rascher in the blood coagulation experiments, issued a re 1 Trial of the Major War Criminals, Vol.
1, p. 306.
search assignment to him on freezing experiments and to Hirt on the gas experiments, as well as performed bacteriological warfare and poison experiments himself?
No, it was not the lack of information as to the criminal program which explains the culpable failure of these men to destroy this Frankenstein's monster. Nor was it lack of power. Can anyone doubt that Karl Brandt could have issued instructions to Handloser and Conti that doctors subordinated to them were not to experiment on concentration camp inmates. It is no excuse to say that Hitler and Himmler approved the policy and that his efforts may have failed. Certainly they approved it. But the fact is that Brandt also approved of and personally participated in the program. He was the "highest Reich authority" in the medical services, not Himmler. The medical services were Brandt's primary function, while Himmler had a few other tasks to keep him busy, such as running the SS, the Ministry of Interior, the German Police, and the Home Army, to mention a few.
Nothing could have been easier for Handloser than to issue a general directive that officers of the Medical Services of the Wehrmacht were to keep out of concentration camps. If he could not have done so, then we must conclude that no one could have. Handloser had no peer in the military medical services. And what Handloser could have done for all branches of the Wehrmacht, Schroeder, Genzken, and Blome could have done with respect to the Luftwaffe, the Waffen SS, and the Reich Health Department.
The conclusion is inescapable that the crimes of these responsible leaders is a hundred fold greater than that of the wretches who executed the murderous experiments in the concentration camps. Theirs was the power, the opportunity, and the duty to control and their failure is their everlasting guilt.
Dr. Hochwald will continue the presentation for the prosecution. BY DR. HOCHWALD:
May it please the Tribunal:
This Tribunal is faced with no difficult legal questions as to whether the acts proved in this case constituted crimes. Many of the medical experiments with which this case is concerned have long since been held to have been criminal by a number of different courts, The International Tribunal stated that:
"The inmates were subjected to cruel experiments at Dachau in August 1942, victims were immersed in cold water until their body temperature was reduced to 28° Centigrade, when they died immediately. Other experiments included high altitude experiments in pressure chambers, experiments to determine how long human beings could survive in freezing water, experiments with poison bullets, experiments with contagious diseases, and experiments dealing with sterilization, of men and women by X-rays and other methods." 1 The International Military Tribunal held that the foregoing experiments constituted War Crimes and Crimes against Humanity.
In the case against Erhard Milch, recently concluded before Military Tribunal No. II, the high altitude and freezing experiments performed at Dachau were adjudged to be crimes. Similarly, in U. S. vs. Weiss at al., tried before a Military Commission in Dachau, a large number of Dachau concentration camp officials were found guilty on proof including the high altitude, freezing, malaria, sepsis, and seawater experiments. Dr. Claus Schilling was sentenced to death for his part in the malaria experiments. In a recent case in the British Zone concerning atrocities committed in the Ravensbruck Concentration Camp, Scheidlausky, Rosenthal, and Treite, who were camp doctors in Ravensbruck, were all tried and sentenced to death, in part on the basis of evidence of the sulfanilimide and bone, muscle, and nerve regeneration experiments which were performed by the defendants Gebhardt, Fischer and Oberhauser.
The law with respect to the criminality of the so-called euthanasia program in the Third Reich is equally clear. This Tribunal is not called upon to define with juridical nicety what a state may lawfully legislate 1 Trial of the Major War Criminals, Vol.
1, p. 252.
with respect to euthanasia. The Prosecution asks only that this Tribunal find, as other Tribunals have already held, that there was no valid law in the Third Reich permitting euthanasia and that the execution of persons under the guise of euthanasia, with the connivance and assistance of the defendants Karl Brandt, Brack, Blome and Hoven, constituted the crime of murder and was a War Crime and Crime Against Humanity. Again, the foremost authority on the legality of euthanasia as practiced under the Nazis is in the Judgment of the International Military Tribunal. It was there hold that:
"During the war nursing homes, hospitals, and asylums in which euthanasia was practiced as described elsewhere in this judgment, came under Fricks jurisdiction. He had knowledge that insane, sick, and aged people, 'useless eaters', were being systematically put to death. Complaint of these murders reached him but he did nothing to stop them. A report of the Czechoslovak War Crimes Commission estimated that 275,000 mentally deficient and aged people, for whose welfare he was responsible, fell victim to it." 1 This finding draws no distinction between German nationals executed under the program and non-German nationals.
These executions are described with the word "murder" and constitute War Crimes and Crimes against Humanity under the Charter and Control Council Law No. 10. This was one of the principle crimes which led to the judgment or guilty and the sentence of death against Frick. How much greater is the guilt of the defendant Karl Brandt.
The review of the Deputy Theater Judge Advocate in the case of the U.S. vs. Klein, Wahlman, et al., held at Wiesbaden, 1 Ibid.
, Vol. 1, p. 301; see also p. 247.
Germany from 8 through 15 October 1945, is a clear precedent that the execution of non-German nationals pursuant to the euthanasia program constituted the crime murder. Since the end of the war, German and Austrian courts have repeatedly held that the killing of persons of any nationality under the guise of euthanasia was in violation of German Criminal Code and punishable as murder. It is interesting to note that in a case before the District Court for Criminal Cases in Vienna in July 1946, Dr. Ernst Illing, who was charged with putting to death children under the euthanasia program, testified that he was called up by Hefelmann, one of the subordinates of the defendant Brack, and given a letter signed by Adolf Hitler according to which the defendant Karl Brandt was given the task of putting into effect and working out administrative regulations for the killing of incurable idiotic children. Illing stated that after examination and decision by a scientific medical committee, Dr. Brandt, or the deputy designated by him, would give the order in each individual case. Illing was found guilty as charged and sentenced to death by hanging.
The Court of Assizes in Berlin, in the session on 25 March 1946, found the defendants Hilde Wernicke and Helene Wieczorek guilty of murder and sentenced them to death for their activities in the euthanasia program. The Court of Appeals in the same case rejected the appeals of both defendants. The court stated that, "It cannot be mistaken that the defendants Wernicke and Wieczorek are only the last links of a long chain, and that they were preceded by persons whose guilt is still greater." In Karl Brandt and Victor Brack we have in this dock the first and third links in that long chain. The second link, Mr. Bouhler, has found his salvation in self destruction with a time bomb. Not far behind in this chain of organized mass murder was the defendant Blome and while Hoven may not have sat among the leaders, he was more tangibly rewarded by way of bribes as the paid killer of Buchenwald.
Defenses Time does not permit a detailed analysis of the proof against these defendants.
The Prosecution is filing with the Tribunal briefs against each of the defendants, and I shall therefore restrict myself to a few observations about the common defenses and a number of the more interesting specific defenses.
The defense evidence comes from three main sources -- affidavits, witnesses, and testimony of the defendants. The overwhelming bulk of the defense documents consists of affidavits. These, for the most part, are affidavits as to character, which are replete with such statements as ".....I cannot imagine that he approved or even knew of the 'scientific' experiments which scorn all humanity and all medical ethics."1 Then there was a great flood of affidavits swapped around among the defendants themselves, which usually take the form of saying, in effect, "I didn't mean what I said about you before the trial began." There is scarcely a defendant in the dock who was not the grateful beneficiary of a few kind words from that resistance worker Sievers. This reached the extreme when several defendants submitted affidavits in their own behalf.
When one sifts through this mountain of affidavits, a small residue is finally reached which bears, to a greater or lesser degree, upon the ultimate facts in issue. These we find are, in the most part, sworn to by parties to the very crimes which they seek to explain away. Among them, to name a few, are statements by Miss Crodel, assistant to Haagen in the Natzweiler typhus experiments; Blemenreuter, chief of the office for Chemical and Pharmaceutical Service under Genzken and supplier of equipment for a number of experiments, including the sulfanilamide and freezing crimes; Cremer, Chief of the Medical School for Mountain Troops at St. Johann under Handloser, and a collaborator with Rascher; and Vonkennel, chief of the Experimental Department V in Leipzig and a collaborator of Poppendick in the Buchenwald typhus experiments. Such affidavits 1. Handloser Ex. 49 lack any credibility whatever.
Vonkennel, to give a specific case, solemnly assured us in his sworn statement that his Research Department V "never had anything to do with the hormone experiments of Dr. Vaernet, with typhus, or with experiments concerning burns".1 However, in a letter from Poppendick to Mrugowsky, which was submitted by the Prosecution after Herr Vonkennel's affidavit, he requested that a drug developed by Vonkennel be tested as to its therapeutical effect on typhus in the experimental, station in Buchenwald and concluded his letter by stating that:
"Professor Dr. Vonkennel considers it very advisable that Dr. Ding should call on him in his clinic in Leipzig for the purpose of discussing this rather different therapy. The necessity for absolute secrecy is stressed to all institutions concerned."2 I need not remind the Tribunal that the drug was in fact sent to Buchenwald for testing in the criminal typhus experiments.
Then there are the affidavits which attempt to explain away this or that document which shows the crime on its very face, Schroeder and Becker-Freyseng, finding themselves in this embarrassing dilemma with respect to the report on the seawater conference of 19 and 20 May 1944, obtained from the obliging Christensen, who signed the damning report, an answer to their figurative appeal to "say it ain't so". Christensen in his sworn statement said, in effect, that the report was drawn up from memory several days after the event by his assistant Schickler, who was really a pretty stupid fellow anyway and was not apt to understand or remember much which went on in the meeting, that although he (Christensen) signed the report he didn't read it, and in any event Schroeder's office called him after their receipt of the report and pointed out numerous, but unspecified, mistakes, and that he didn't change the report because it was superseded by a latter meeting.
Yes, it was all sweetness and light, if one finds if possible to 1. Poppendick Ex. 7 2. NO-1184, Pros.
Ex. 476, R. 5639 believe the statements of these parties to the crimes.
What has been said with respect to the defense affidavits is also true of the defense witnesses. Those few who were in a position to know what they were talking about were testifying as much for themselves as for the defendants. It is patently impossible to deal with the testimony of all those witnesses, but one may take Bernhardt Schmidt and Eugene Haagon as typical cases. The Ding Diary on the typhus experiments in Buchenwald proves that on 8 February 1943; Dr. Eyer of the Typhus and Virus Institute of the OKH in Cracow, which was subordinated to Handloser, and Dr. Schmidt, a hygienist attached to Handloser's staff, inspected the typhus experimental station. This entry in the Ding Diary was corroborated by the work report of the Typhus and Virus Institute of the Waffen SS in Buchenwald for the year 1943. Schmidt was called as a witness for the defendant Handloser and testified that he and Eyer made the long trip to Buchenwald for the very important purpose of demonstrating to certain SS doctors, whom he could not name, how a glass container of yellow fever vaccine should be broken open. Although Eyer and Schmidt were very much interested in typhus problems, and although there was a typhus experiment in progress in Buchenwald on the very day they were there, Dr. Schmidt asks the Tribunal to credit his testimony that they knew nothing of that. Even the defendant Rose found Dr. Schmidt's testimony somewhat hard to accept. He said: "Berhardt Schmidt's testi-money is clear proof to me what sort of nonsense a witness can say when he is under the pressure of fear and is afraid he will express himself to publicity and to the public eye by his testimony".1 Eugene Haagen, who was called principally on behalf of Schroeder, Rose and Becker-Freyseng, to explain his typhus experiments in Schir-mock and Buchenwald, told an equally incredible story.
He carried out vaccinations in these concentration camps only because the camp commander feared an epidemic and Haagen wished to do what he could to avoid this 1. Transcript, p. 6201 - 2.danger.
Although there was insufficient typhus vaccines in Germany to vaccinate all personnel especially exposed to the disease, Haagen showed admirable concern for the concentration camp inmates. He affirmed to the Tribunal time and again that he carried out no vaccinations in Schirmeck after May 1943 and in Natzweiler after February 1944. He testified that the Prosecution witness Hirtz perjured himself when he said that two of the inmates used by Haagen as experimental subjects in Schmirmeck in the Summer of 1943 died. Haagen was squarely impeached on these and other significant points by the notes on his own typhus experiments, which he identified as having been written by Miss Crodel, his trusted assistant for many years. The entry for 6 July in these notes proves that on that day Haagen was in Schirmeck for the purpose of withdrawing blood from ten inmates who had been used to test a new living typhus vaccine. The entry gives the serum titer value of 8 of the experimental subjects, and is concluded with the laconic note "the other two were not here any more".1 Thus, it would seem to even the most critical observer that the testimony of Hirtz, who personally sewed up the bodies of these two inmates in paper bags and delivered them for cremation, is somewhat more reliable than that of Haagen. The Crodel notes show that not only did Haagen conduct experiments in Schirmeck after May 1943, but that he was still doing so as late as January 1944. With respect to the criminal experiments in Natzweiler which he swore were finished in February 1944, the entry for 25 May 1944 states that 30 persons were innoculated in Natzweiler"...during the incubation period (a transport containing also sick people) 13 became sick in the period from 29 May to 9 June, of these 2 died".
Insufficient time is available to give the perjurous testimony of Haagen the attention it so richly deserves. But I think it fair to say by way of summary that substantially the only truthful answer he gave to questions propounded both by the defense and prosecution was when 1. NO-3852, Pros.
Ex. 521, R. 9660 my distinguished opponent, Dr. Tipp, opened the examination by saying:
"Your name is Dr. Eugene Haagen. You were born on the 17 June 1898 in Berlin. At present you are a prisoner in the court prison in Nurnberg. You are a doctor of medicine by profession and your specialty is hygiene and bacteriology", to which the witness responded: "Yes, that is correct.
That other great source of defense proof -- the testimony of the defendants themselves -- must also be described, if one wishes to be charitable, as not above reproach. How many times have the defendants said, "I have heard of that for the first time here in Nurnberg." This propensity for perjury on the part of the defendants was typified by the "highest Reich authority" in the medical services, Karl Brandt. Under questioning during cross-examination as to his connection with the phosgene gas experiments performed by Otto Bickenbach, Brandt testified that this research came to his attention in the fall of 1943 on the occasion of a visit to Strassbourg to see a cyclotron; that later he helped Bickenbach to obtain a laboratory for his work; that he assisted him in obtaining experimental animals even to the extent of having them flown from Spain; that Bickenbach did not conduct experiments on human beings; that he helped him in 1944 after the laboratory had been established in the vicinity of Strassbourg. The defendant Rostock was with Brandt when he saw Bickenbach in 1943 and later classified his research as "urgent". The Sievers Diary for 1944 proves that Bickenbach was performing his work under the control of Brandt. The entry for 2 February states that:
"....met Prof. Bickenbach in Karlsruhe, and he advises that he has put his research work under the control of General Commissioner Prof. Dr. Brandt."2 Brandt admitted that he was in Natzweiler with Bickenbach but insisted that, strangely enough, only animal experiments were conducted in this concentration camp.
Evidence submitted by the Prosecution following this 1. Transcript p. 9409 2. 3546-PS, Pros.
Ex. 123, R. 2629 cross-examination proved beyond controversy that Brandt was advised of the details of Bickenbach's criminal experiments on Russian prisoners of war and that, indeed, this research was carried out with his support.
An affidavit from Bickenbach himself states that he discussed the necessity of carrying out phosgene gas experiments on human beings with Brandt before they were performed and that Brandt later advised him that the experiments had to be executed.
The Reports by Bickenbach on his experiments were all addressed to Brandt as Commissioned General of the Health and Medical Services. They show on their face that the experiments were performed on forty Russian prisoners of war and that four were killed as a result.
The defendant Gebhardt, who figuratively beat his chest and loudly proclaimed his willingness to tell the full truth, was not above false testimony on his own behalf as well as a few gratuitous perjuries for his colleagues Genzken and Mrugowsky, among others. Gebhardt, while assuming responsibility for the sulfanilamideexperimentsonn Polish women in the Ravensbrueck Concentration Camp. attempted to dissociate himself from the vivisections performed in the course of the bone, muscle, and nerve experiments. He testified that his sulfanilamide experiments were completed by December 1942 and he had no further connection with experimental work in Ravensbrueck. The affidavit of Fritz Suhren, Camp Commander of Ravensbrueck, squarely contradicts Gebhardt in that regard. He stated that in the beginning of 1943 he contacted Gruppenfuehrer Mueller of the RSHA to have the experiments stopped because, among other reasons, they could not be kept secret, and that Mueller agreed. A short time later an assistant of Gebhardt's requested additional women for experimental purposes which Suhren refused. That same evening Gebhardt reprimanded Suhren and threatened to submit the matter to the Reichsfuehrer. Sometime later Suhren was forced to go to Hohenlychen and apologize to Gebhardt, as he puts it "in a very humiliating way". He was ordered to make three additional women available for Gebhardt's experiments. No one who has had occasion to observe Gebhardt's vain and overbearing manner in this courtroom can doubt the truth of Suhren's statements.
In his zealousness to protect his fellow defendants and heap all the guilt on Grawitz, Gebhardt testified that neither the Hygiene Institute of the Waffen SS nor the defendant Mrugowsky, who at that time was subordinated to Genzken, played any part in the sulfanilamide experiments, and that the infection material was sent to him by Grawitz.
Genzken and Mrugowsky, needless to say, ardently supported Gebhardt on this point. A preliminary report by Gebhardt on these experiments, certified as a true copy by Grawitz's assistant Poppen-dick, proves precisely the contrary. It states that "SS Oberfuehrer Dr. Blumenreuter put the complete surgical instrumentations and medicamentations at my disposal. SS Stendartenfuehrer Mrugowsky put his laboratory and co-workers at my disposal." The report also states that:
"Since in this experiment too a definite gangrene could be produced clinically speaking, yet its picture did not in any way correspond to the one known in war-surgery, after further consultation with the collaborators in the Hygiene Institute of the Waffen SS the vaccine was changed by adding wood shavings."
CAPTAIN HOCHWALD: The Prosecution requests an adjournment for noon recess at this time to permit the interpreters to complete the translation of the documents.
THE PRESIDENT: The Tribunal will now be in recess until 1:30 o'clock.
(A recess was taken until 1330 hours.)
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 14 July 1947)
DR. HOCHWALD: Hay it please the Tribunal, even the most eminent scientist in the dock, the defendant Rose, tried to shield his guilt by a tissue of lies. The entries in the Ding Diary for 19 August 1942 and 8 March 1944 prove that typhus experiments were carried out in Buchenwald by Ding at the suggestion of Rose. Ten inmates were killed during the course of these experiments. Rose expressly denied the accuracy of these entries in the Ding Diary. He denied ever having sent vaccine to Mrugowsky or Ding to have tested in Buchenwald. He denied that Mrugowsky ever asked him for vaccines to be used in typhus experiments or that he ever negotiated with Mrugowsky in that regard. Mrugowsky has cheerfully testified that he, also had nothing whatever to do with Ding's experiments in Buchenwald. He stated that: "If he had come to me I would have sent him on to someone else. I would have said, 'My dear man, that does not have anything to do with me'." 1 The perjurous testimony of these two defendants was clearly revealed by the subsequent introduction of the correspondence between them on the very experiments with which they denied any connection. On 16 May 1942 Mrugowsky wrote to Rose as follows:
"The Reich Physician SS and Police has consented to the execution of experiments to test typhus vaccines. May I therefore ask you to let me have the vaccines.
"The other question which you raised, as to whether the louse can be infected by a vaccinated typhus patient, will also be dealt with. In principle, this also has been approved. There are, however, still some difficulties at the moment about the practical execution, since we have at present no facilities for breeding lice.
"Your suggestion to use Clzscha had been passed on to the Personnel Department of the SS Medical Office. It will be given consideration in due course."2 This letter forms the basis for the experiments carried out by Ding in Buchenwald on 19 August 1942 as reported in the Ding Diary.
1. NO-2734, Pros. Ex. 473, R. 5622.
2. NO-1754, Pros. Ex. 491, R. 6460.
These defendants were again thoroughly impeached by the letter of Rose to Mrugowsky of 2 December 1945 which reads, in part, as follows:
"At present I have at my disposal a number of samples of a new murine virus typhus vaccine which was prepared from mice livers and proved in animal experiments to be quantitatively a 1000 times more effective than the vaccine prepared from mice lungs. To decide whether this first rate murine vaccine should be used for protective vaccination of human beings against lice typhus it would be desirable to know if this vaccine showed in your and Ding's experimental arrangement at Buchenwald an effect similar to that of the classic virus vaccines.
"Would you be able to have such an experimental series carried out? Unfortunately I could not reach you over the phone. Considering the slowness of postal communications I would be grateful for an answer by telephone."1 This letter in turn substantiates the entry in the Ding Diary for 8 March 1944.
These defendants, without exception, showed a very remarkable practice of economizing in the use of truth. The record is full of their outright false statements, double talk, fantastic explanations, absurd professions, dissimulations, and evasions. We have not even been spared the experience of at least one instance of deceitful and contemptuous alteration of original documents in a vain attempt to mask the truth. These things typify the philosophy of the National Socialists. As Justice Jackson said:
"When for years they have deceived the world, and masked falsehood with plausibilities, can anyone be surprised that they continue the habits of a lifetime in this desk? Credibility is one of the main issues of this trial. Only those who have failed to learn the bitter lessons of the last decade can doubt that men who have always played on the unsuspecting credulity of the generous opponents would not hesitate to do the s same, now."2 One of the common defenses which has been utilized rather extensively in this case is a variation of the old "shell game" -- now you see it, now you don't. This comes into most active play when we have a criminal who had two or more titles.
Thus, for example, Haagen was simultaneously 1. NO-1186, Pros.
Ex. 492, H. 6463 2. I.M.T. Transcript, p. 14377.
Consulting Hygienist to Air Fleet Reich with the rank of Stabsarzt and the Director of the Hygiene Institute of the University of Strassbourg. Also, Generalarzt Schreiber, one of the principal subordinates of Handloser as Army Medical Inspector, was Commander of the Scientific Group of the Military Medical Academy and at the same time Plenipotentiary for the Combatting of Epidemics in the Reich Research Council. In the face of proof that both of these men engaged in a variety of crimes, the incriminated defendants have made the effort to hide the pea which is the crime under the shell for which they deny responsibility, while at the same time hopefully ignoring the obvious fact that the pea is under both shells. Thus, Schroeder, Rose and BeckerFreyseng would have the Tribunal make the fantastic finding that the Rector of the University of Strassbourg was exclusively Haagen's boss and, if he did anything wrong, it was the Rector's responsibility. Handloser takes a similar line with the very unpopular Schreiber, and by some wondrous working of fate, every time Schreiber was sponsoring a criminal experiment he was acting in his capacity as a member of the Reich Research Council. Blome, according to his story, was only deputy to the "good" Conti while the "bad" Conti went his criminal way without the assistance of his chief collaborator. Poppendick and Grawitz had the same unique relationship. Cenzken and Mrugowsky perform a similar bi-section of Ding; while his right hand was in the vaccine production plant at Buchenwald under their command, his left hand performed the criminal typhus experiments at the direction of Grawitz, and never the twain did meet. I will not consume the time and patience of this Tribunal by pointing up the wealth of evidence which proves that Haagen, as he indeed admitted, and Schreiber and Ding were performing their criminal research with the knowledge and active support of these defendants who are now so anxious to disown them. The Prosecution does not dissent from the consensus that other persons are also guilty of these crimes, including most certainly the Rector of the University of Strassbourg and the members of the Reich Research Council. After all, we have in Karl Brandt and Blome, two of the six doctors who were members of the Reich Research Council, But the fact that other persons are equally quilty in no way serves to exculpate these defendants.
The fact that these criminal experiments were performed with the knowledge and assistance and for the benefit of several different agencies only goes to prove that they were executed pursuant to a common design. Thus, the report on the first typhus experiment in Buchenwald, which cost the lives of five inmates, was sent by Mrugowsky to Conti as Reich Health Leader, in which capacity Blome was his deputy, Grawitz, Genzken, Eyer of the Typhus and Virus Institute subordinated to Handloser, and Dr. Demnitz of the Behring Works, The "shell game" is no defense. Guilt was indeed widespread, but that is neither exculpation nor mitigation for these defendents.
Mr. MacHaney will proceed with the closing statement.
MR. MCHANEY: 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 rewarm 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 is this spurious defense run much deeper. Concentration camps were not ordinary penal institutions, such as are known in other countries, for the committment 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".1 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 1. Transcript, p. 4025.
for still further detention. A memorandum of 18 September 1942 by Minister of Justice Theirack concerning a conversation with Himmler tells us the fate of those unfortunates:
"The delivery of anti-social elements from the execution of their sentence to the Reichsfuehrer 38 to be worked to death. Persons under protective arrest, Jews, Gypsies, Russians and Ukranians, Poles with more than 3 year sentences, Czechs and Germans with 8 year sentences, according to the decision of the Reich Minister for Justice".1 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 here 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 1 654-PS, Pros.
Ex. 562, R. 10695 the crime of his initial unlawful detention as well as to commit the additional crime of murder or torture.