They did not know him personally, he was from them what propaganda made of him, but this he was so uncompromisingly that everybody who saw him from close to and saw otherwise, knew clearly that resistance was absolutely useless and, in the eyes of other people, was not even martyrdom.
Would it therefore not be a self-contradictory proceeding if both the following assertions were to be realized at the same time in the rules of this trial?....
.....The functionaries had neither the right nor the duty to examine the orders of the monocrat to determine their legality. For them these orders could not be illegal at all, with one exception of these cases in which the monocrat placed himself - according to the indisputable values of our times - outside every human order, and in which a real question of right or wrong was not put at all and thus a real examination was not demanded.
HITLER's will was the ultimate authority for their considerations on what to do and what not to do. The Fuehrer's order cut off every discussion. Therefore: A person who, as a functionary of the hierarchy refers to an order of the Fuehrer's, is not trying to provide a ground for being exempted from punishment for an illegal action, but he denies the assertion that his conduct is illegal; for the order which he complied with was legally unassailable.
Only a parson, who has understood this, can have a conception of the difficult inner struggles which so many German officials had to fight out in these years in face of many a decree or resolution of Hitler's. For them such cases were not a question of a conflict between right and wrong:
Disputes about legality sank into insignificance. For them the problem was one of legitimacy: as time went on, human and divine law opposed each other ever more strongly and more frequently.
Therefore: Whatever the Charter understands by the orders which it sets aside as a. ground for exemption from punishment, can the Fuehrer's order be meant by this?
Can it come within the meaning of this rule? Must one not accept this order for what it was according to the interior German constitution as it had developed, a constitution which had been explicitly or implicitly recognized by the community of states?... ....The one supreme will became, quite simply, technically indispensable. It became the mechanical connecting link for the whole. A functionary who met with objections or even resistance to one of his orders from other functionaries only needed to refer to an order of the Fuehrer's to get his way. For this reason many, very many, among those Germans who felt Hitler's regime to be intolerable, who indeed hated him like the devil, looked ahead only with the greatest anxiety to the time when this man would disappear from the scene: for what would happen when this connecting link disappeared? It was a vicious circle.
I repeat: An order of the Fuehrer's was binding - and indeed legally binding - on the person to whom it was given, even if the directive was contrary to international law or to other traditional values."
So far the statements of Prof. JAHREISS before the International Military Tribunal. The development presented here seems to be particularly relevant for the case of the defendant Fischer, since he himself in the witness box described his attitude towards the Fuehrer's command in a way which, because of his very youth, his idealistic conception of life and duty and his manly confession, was particularly convincing.
It is true that in the face of all this reference will be made to Article 8 of the Charter for the International Military Tribunal which reads? "The fact that a Defendant acted pursuant to the order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires."
Accordingly, Law No. 10 of the Control Council, Article II, paragraph 4 reads:
"b) The fact that a person acted pursuant to the order of his Government or of a superior does not free him from responsibility for a crime but may be considered in mitigation."
In the face of this objection the following is to be pointed out:
At the time of their actions the defendants were subject to German law according to which the degree of their responsibility was determined and, oven to day, must justly be referred back to that moment. The following should be emphasized, however, in case the Tribunal should not apply the legal provisions in force at the time of the act, but should base its judgment on Law No. 10 of the Control Council, though it represents a manifest violation of the prohibition of retroactive application of penal laws.
Even from the above named provision of the Law of the Control Council the principle cannot be derived that every command of a superior should under the aspect of Penal Law, be irrelevant under all circumstances. This also applies to the problem of the exemption from responsibility and exemption from penalty. The provision only states that the existence of such a command in itself does not exempt one from the responsibility for a crime; it does not however preclude by any means that in connection with other facts it may be relevant for this problem as well.
The guiding legal aspect underlying these deliberations is contained in the concept of the so-called conflict of duties which has been repeatedly mentioned before. This aspect doss not coincide eo ipso with the "objective" principle of balancing interests, as discussed in examining the case of the Defendant Karl GIBHARDT. In addition one must insist on consideration of the "subjective" position of the person committing the act.
In other words, in order to arrive at a just appreciation of the case, the personal situation of the person committing the act at the moment of it being committed will have to be weighed as well. This applies particularly to the personal situation into which the person committing the act has been put by reasons of a higher command which is binding for him and influences him. Besides the general "objective" principles of balancing interests, such ** a special "subjective" state of coercion can and must therefore be considered in his favor also. A "command" can, therefore, according to the concrete situation shift the boundaries of culpability further in his favor.
Reinhardt FRANK, the great German criminologist, has with regard to the problem of the so-called conflict of duties established the maxim: "Inasfar as the conflict of duties has not been expressly regulated the maxim should prevail that the higher, the more significant, the more important duty is to be fulfilled at the expense of the less high one and that, therefore, omission to fulfill the latter one is not contrary to law."
With good reason it has always been emphasized that in such a situation of conflict of diversified duties the decision is, in the end, not to be found in positive law, but it is of an ethical nature. That is why, in such a situation, a certain leeway must be left to the personal conscience: it is not possible here to arrive at everything through the coarse means of an outward penal provision. This completely "personal" character of genuine ethical conflicts has also been fully recognized and emphasized in the authoritative philosophical literature. Nicolai HARTMANN, Ethic (2nd edition, 1935, P/ 421/22) says for instance, with regard to genuine conflicts of values: "It is a fateful error to believe that such problems can be solved on principle in theory. There are borderline cases in which the conflict in conscience is grave enough to require a different solution according to the particular ethos of the person. For it lies in the very nature of such conflicts that values are balanced, and that it is not possible to emerge from them without becoming guilty. Accordingly, a man in this situation cannot help making a decision* A person faced with this serious conflict, incurring such a measure of responsibility, ought to decide this: To follow the dictates of his conscience to the best of his ability, i.e. according to his own live sense of the level of values and accept the consequences."
No further argument should be needed for demonstrating that just from an ethical point of view measuring of such personal decisions by standards of Penal Law is out of the question.
I would like to ask the Tribunal to read points 6 and 7 and I would like to come to the next point of my final plea which deals with the membership of the defendant Fritz Fischer in the SS. The Tribunal will find that on page 31 of the original, which is page 33 of the English text.
In Count IV of the Indictment Defendant Fritz FISCHER is charged with the membership in an organization declared to be criminal by the International Military Tribunal, i.e. the membership of the Schutzstaffeln of the NSDAP (commonly known as the "SS").
The evidence has shown that Defendant joined the Reiter-SS (cavalry-SS) in 1934. Defendant has when interrogated as a witness on his own behalf explained in detail the reasons for his joining up. They were the same reasons which, in the years after the seizure of power by the National Socialists, forced and caused many hundreds of thousands of young Germans to join any of the formations or affiliations of the Party. The necessity for such a step was - just in the case of young university students not only derived from the fact that granting of privileges during the course of study and the admission to examinations was rendered dependent upon it, but over and beyond this, it was, of their duty to join any of the formations of the Party and to do service there, owing to the decrees of the German Studentship as the legal representation of the German Universities.
It is true, though, that membership of the SS was not precisely prescribed. Membership of the SA, the NationalSocialist Motor Corps, or, the National Socialist Aviator Corps would have been sufficient. Defendant would have made his choice much more carefully, could he have had the faintest idea that 12 years afterwards this organization would be declared criminal. That the Defendant Fritz FISCHER joined the SS was rather more in the nature of an accident, and was, last not least, occasioned by the fact that among the Party formations only the SS gave him the opportunity at that time to indulge in horseback-riding.
The Defendant joined a Reitersturm (Cavalry unit) of the SS in 1934. This fact is relevant in so far, as in the Judgment of the International Military Tribunal of 30 September 1946, declaring the SS a criminal organization, the so-called Reiter-SS was expressly excepted.
Apart from this fact, there seems to be good cause to consider, from a general point of view, the question of condemning a Defendant for his membership in an Organization declared criminal.
The International Military Tribunal has , in spite of all its restrictions and exceptions, in spite of time limits in its Judgment of 30 September 1946, violated a principle which forms an integral part of modern Criminal Law and present-day conception of law in general. It is the fundamental axiom that there can be no punishment when there is no guilt.
In this connection, the reasons should be briefly examined which, after the seizure of power by the National Socialists, in 1933, caused many hundreds of thousands of young Germans to join the Party formations-apart from the pressure brought to bear upon them.
Defendant Fritz FISCHER has explained these reasons in detail in the witness box, and I may be allowed to refer to this for the details. It is a fact that many young Germans, and last not least many members of the young student-group, silenced the misgivings they had for the very reason ultimately that they had to witness the former enemies of Germany after the First World War again and again denying political equality to democratically and parliamentarily governed Germany, and doing nothing, in realization of a truly constructive idea, to take into account the just interests of the German people. The misgivings about much abuse of National Socialism were bound to lose a good deal of their strength, when it was shown, in the years after the seizure of power , that also the other nations of Europe and the rest of the world did not hesitate to recognize the National-Socialist State, and, far from drawing the political or economical conclusions of their allegedly ideological antipathy - even went as far as to send their diplomatic representatives to the great demonstrations of the Party and to be officially represented at the Reich Party Congresses.
This state of affairs is relevant from the point of view of the evidence, insofar as it is proven in any case that with regard to the bad faith and the criminal intent of the individual members of the Organizations declared criminal, proof must be required in every individual case. A general assumption cannot be considered to be sufficient to justify condemnation on this Count.
In the case of the Defendant Fritz FISCHER it may be said in addition that after the outbreak of war he did not volunteer for the Waffen-Ss, but was, on account of his membership of the General-SS, like every German liable for military service, called up for the Army.
With the exception of his work in the military hospital of Hohenlychen, Defendant served with the Waffen-Ss always at the battle front. During the whole of the course of his service at the battle front he was medical officer with the Divisions of the Waffen-SS which suffered the greatest losses, which were always dispatched to those sectors of the front where danger was imminent, and where units had to be used which would not only fight with admirable valor, but could not be deterred either by any losses or personal sacrifices. During the whole of the time of his membership of the SS, Defendant FISCHER did front line service which differed in nothing from the service of a soldier as experienced in the units of the Army. He has offered his sound limbs for his country and has given proof of the honesty of his ideas and his views. Such conduct of a young man of 26 years at the outbreak of war cannot now be declared criminal. The evidence has not furnished any clue as to Defendant Fritz FISCHER having had any knowledge of acts which caused the International Military Tribunal to declare the SS a criminal organization. In view of the fact that he did not join the Waffen-Ss voluntarily, but was called up for it, that he himself neither committed a war crime, nor a crime against humanity in connection with the war, nor had any knowledge of it, conditions for condemnation according to Count IV of the Indictment do not appear to be fulfilled.
CERTIFICATE OF TRANSLATION 9 June 1947 I, E.J. Hinchliffe, Civ.
No. Military Permit 026034, hereby certify, that I am thoroughly conversant with the English and German languages and that the above is a true and correct translation of the original document.
E.J. Hinchliffe Civ.
No. Military Permit 026034 "End" In view of the fact that the Prosecution in no case of my clients has made any specific application for sentence I shall refrain from any formal application as to the sentence.
THE PRESIDENT: The Tribunal will be in recess.
( A short recess was taken )
THE MARSHAL: Persons in the court room will be seated.
The Tribunal is again in session.
THE PRESIDENT: Dr. Marx, you may proceed with your argument.
DR. MARX: (Defense Counsel for defendant Schroeder) Your Honors, I now begin the plea for the defendant Professor Dr. Schroeder.
Today we are at the end of this trail against German physicians which has been conducted for many months with greatest care and with the aid of every conceivable piece of evidence introduced by prosecution and defense.
It is now the task of the defense to show whether the serious charges which were leveled not only against the indicted physicians of this trial, but also against the entire German medical profession can be weakened or restricted to a certain degree.
In his opening speech of 9 December 1946, the chief Prosecutor General Taylor declared:
"...The paralyzing poison of Nazi superstition spread insidiously through the entire medical profession and in the same manner in which it destroyed character and morals, it blunted the reason....."
It can be said that such charges cannot be applied to the entire German medical profession. The majority of the German medical profession. The majority of the German medical profession knows itself innocent of the charge of degenerating medical morals, and there can be no question of a departure from medical ethics with these representatives of the German medical profession. They have rather, always retained their high ideals and concepts of the duties of the medical profession. The German medical profession in their majority did not know anything of the events which took place in concentration camps during the war and, when the learned of them, they turned away with disgust and indignation from actions which could have no further connection with the medical profession and which they themselves considered criminal.
Can the charges and accusations of the prosecution be applied to my client, Prof. Dr. Schroeder? Can it be asserted that the "paralyzing poison of Nazi superstition" crept into the system of this man and this his character and his morals were destroyed by it, if on the other hand it can be said that Prof. Schroeder had nothing to do in the least with National Socialism, that he was never a member of the Party and that he rejected completely its aims.
Would it be possible to bring such a man in connection with criminal aims, a man to whom all subordinate medical officers looked with high esteem, for whose noble care the German Nursing profession always has been grateful, to whom learned men outside of the Wehrmacht showed considerable respect and maintained their faith and consideration even at this moment, when he being under the most serious charges has to fight for his honor, liberty and life?
The Defense hopes to prove that Prof. Schroeder is not guilty and that his shield of honor as a physician and an officer remains unblemished.
The Prosecution speaks in the first place of a criminal planning and conspiracy for the execution of war crimes in which even leading men of the medical service of the German Wehrmacht and, amounts them the defendant Prof. Dr. Schroeder, allegedly participated.
If one speaks at all of a criminal conspiracy, and if my client Prof. Schroeder in particular can be accused of participation in such a conspiracy, there ought to exist certain facts justifying the suspicion of his participation in criminal plans.
The Prosecution was not in a position to present even one single document showing Schroeder's personality in connection with such plans. For a conspiracy there must be a group of men acting on the basis of a common understanding, having common ideas, being in connection with one another and driving at a common aim. They are usually directed by a central office.
The Prosecution seems to believe that a connection existed between Prof. Schroeder in his capacity as chief of the Luftwaffe Medical Service and his subordinate officers for such a common plan. Because the assertion of the Prosecution that seven more defendants who were members of the Luftwaffe and subordinate to Schroeder cannot be understood otherwise.
It was pointed out however that the relations between Schroeder and the seven other defendants of the Luftwaffe were merely of an official nature, and were the same as between Prof. Schroeder and the Chief of the Wehrmacht Medical Service, his co-defendant, Prof. Handloser.
A look at the defendants dock will further convince you that no connections existed and can have existed between Prof. Schroeder and the majority of the other co-defendants. Three groups of defendants are to be distinguished: 1. The group of the Wehrmacht and Luftwafffe medical officers, 2. the group of the SS doctors, 3. a group that does not consist of physicians, but of higher administrative officials of SS and Party. It is not necessary to mention that in view of Schroeder's political and ideological attitude there can be no connection between him and the other two groups.
Prof. Schroeder's personality as well as the picture of his life and character will in the following briefly be described.
The numerous affidavits voluntarily put at the disposal of the Defense, and all the documents concerning Schroeder's life and professional work, clearly prove that Prof. Schroeder always put the highest demands to his own professional work, to the medical Ethics, that he had the highest concept of the service and the stand of the officer and, that he was deeply concerned with the welfare of the suffering mankind.
Prof. Schroeder in a really exemplary manner endeavored to organize the care for the wounded and the sick in the best possible way. He had not only the evidence and the statements, although they also mention much of it, but all the numberous field hospitals built under Schroeder's decisive influence give proof of his efforts to utilize the newest technical and medical discoveries for the benefit of his sick and wounded. The hospitals of Brunswic, Hamburg, Westerland, Wismar, Greifswald, Hall, Frankfurt, Nuernberg, to mention only a few of the large number, speak a more vivid language than simple words.
Professor Schroeder was also vice-president of the German Hospital System.
This is not the place to give a detailed picture of Schroeder a s personality and physician, it will be done elsewhere. I only want to deal with one point being of a decisive importance for the judgment Prof. Schroeder's life and work, and that is the description of Schroeder as a soldier.
Your Honors: A man in his sentiments, ideas and acts, in his relationships to other men and to his work depends not only on his character and his innate qualities, but he depends very much on his attitude and his surroundings.
What were Prof. Schroeder's surroundings? A glance at his life history will show. He was a soldier from his 19th year until the collapse in 1945. For 35 years without interruption he belonged to the Wehrmacht. Before world war I he entered the army with the intention to be come a medical officer. He remained in the 100,000 men army, joined the new Wehrmacht, and in 1935 joined the Luftwaffe. His entire professional life was dedicated to the service of his people and country, and he never decided himself for any political party. His adjutant, Dr. Augustinick very justly said here before this Tribunal of his old chief: "Prof. Schroeder was an unpolitical man."
He was a soldier, the model of the old conscientious medical officer. The entire country, not a people divided into groups of parties and interests, was the meaning of life for the soldier, Schroeder He kept far from political activities. The witness Dr. Hielscher, when examined before this Tribunal characterized the ignorance of the German officer with regard to his political surroundings, recognizing and appreciating at the same time his professional achievements He was right. The education and military orders made the old officer a stranger in these matters. He accustomed to obey the orders of the government leaders. He was not entitled to criticize them. In his honesty of conviction, in the sincerity of his thinking, and in his firm belief in the government he objected to it.
Then came the year 1933; the government was taken over by the National Socialists, the reorganization of the Wehrmacht was begun and welcomed by the old officer, because now the possibility was given to rebuild the Wehrmacht for the protection of the country. The new duties filled time and thoughts completely. There was no time left for personal matters, and even less for politics or party.
If the officer of the old school however, had at first welcomed the reconstitution of the order, he very soon was deeply disillusioned, when he had to recognize that the party continuously became more radical and that those elements were striving for the leadership, that from his point of view he could not respect. If in view of his education and his ideological attitude he disagreed with the way of thinking and the aims of the party, his dislike still increased when he noticed that there was an influx of elements into the positions of officers of the Wehrmacht, who were, as men and soldiers not suitable for the profession of an officer.
I have now described with a few strokes the position which faced an officer of the old school during the last few years, and Prof. Schroeder found himself in the same position.
One is here confronted with a simple question which appears quite natural: Why didn't that old soldier draw the simple conclusion from this development, which contradicted this basic attitude, and why didn't he leave, so that those men who desired to give an entirely new character to the German armed forces could do so freely? Would it not have been the simplest, clearest and, for an old officer cleanest solution of an inner conflict to leave the service?
The answer to that question for him could have been only a "no", for it would have meant his leaving the field without a battle and to surrender it to an inner enemy. The old soldier, the old officer, sensed the unsound character of the development, but he hoped yet to be able to give a turn to matters and to bring about a healthier course of things.
Therefore, he did not withdraw from the fields he tried by quiet purposeful work, by strict performance of his duty, as had been his life for decades, to be an example and a model, to be joined by a constantly growing group of like-minded people -- so he hoped, so he worked, quietly. Prof Schroeder held to these thoughts and this attitude even after he had risen to the highest positions in the medical circles of the Wahrmacht. He refused to join the Party, even when membership in the Party was open, and can say with pride that he has only his own achievements to be thanked for his promotion in the medical service. Undisturbed by any outside influences, Schroeder went his way and was a model of loyalty and fulfillment of duty to the medical officers under him. Such a man could never have given his assistance to a criminal plot.
As a specially clear proof of criminal plans the prosecution cites the annual meetings of the consulting physicians of the Wehrmacht, the purpose of which, according to the prosecution, was to announce and to evaluate the results of criminal experiments. In answer to that I can say: The minutes of these meetings show very clearly that this assumption of the prosecution cannot be correct. These meetings show very clearly that this assumption of the prosecution cannot be correct. These meetings were no different from similar meetings of representatives of medical science in other countries for the purpose of exchanging new medical knowledge gained in the meantime in all fields.
The same applied to the meetings of the consultant physicians where the experience gathered meanwhile, so important for the medical care of the Army was to be exchanged and made accessible to a larger circle of people.
This can be seen from the composition of the consultant physicians. They were the leading men of German medical science, university teachers and chiefs of recognized hospitals or scientific institutes, including scientists of well established repute who today, once more, are the teachers and leaders at German universities, hospitals and medical institutes. It is impossible to charge such men with criminal intent.
Thus, the prosecution has failed to supply any proof for the existence of a criminal group, criminal intent or conspiracy. Even less has it supplied any substantial indication for the fact that the defendant Prof. Dr. Schroeder had been part of a conspiracy, or from his character been capable of having been involved.
It is unthinkable to connect a man of his professional concepts and sense of honor with conspiratorial aims of a criminal nature, such as is charged by the prosecution. Conspiracies to commit crimes grow on a different soil from the one I have endeavoured to describe.
Otherwise it would not have been possible for men of science who today again hold leading positions with German hospitals and universities and whose name are of repute throughout the world of science, for well known clergymen in high positions to have taken his part openly and without reserve without his or my solicitation. The picture they drew was that of a helpful and war-hearted doctor, a medical officer inspired by exemplary concepts of honor and profession, and of a man filled with love of humanity and respect for the dignity of the individual. Prof. Dr. Schroeder's life has been an exemplary one, free of all prejudices of race and class.
Prof. Dr. Meyer of the University of Teheran has drawn a partic ularly fitting picture of my client.
He emphasized that when he, Meyer, was a racially persecuted man and was in need of help, Prof. Schroeder gave him vigorous support in those troublesome days and remained a loyal friend.
Thus the accusation raised by the prosecution against German medical science and particularly the assertion that through the contamination of the unholy Nazi spirit a general lowering of medical ethics and the sense of responsibility expected from a doctor could be noted, can certainly not apply to Prof. Dr. Schroeder. Never did he abandon the fundamental principle of his work as a doctor; to help and to heel and to avoid anything that would lead to permanent injury.
In detail, Prof. Dr. Schroeder has been indicted for participation in, or knowledge of the following human experiments in the concentration camp: high altitude experiments; freezing experiments; sulfonamide experiments; yellow fever experiments; typhus experiments; experiments concerning hepatitis epidemica and sea-water experiments.
Before going into the relevant details here, I wish to make the following basic remarks:
Your Honors, a clear distinction must be made between the periods when Prof. Schroeder was not yet chief of the Medical Services of the Luftwaffe and the time when the held that office. We are concerned here with the period from the beginning of 1940 to the end of 1943. During that period Prof. Dr. Schroeder was the leading Medical Officer of Airfleet 2, and as such continually on service outside of Germany. It was only from 1 January 1944 onwards that he held the position of Chief of Medical Service of the Luftwaffe.
This shows clearly that Prof. Dr. Schroeder can not be held responsible for all experiments in concentration camps which were carried out prior to 1st Jan. 1944. His sphere of duties was confined to the medical care of the Airfleet units under him and he was without any official points of contact with the Medical Inspectorate unless the latter was competent for his position as an Airfleet doctor.
To give a picture of Prof. Schroeder's duties at that time, I draw attention to the fact that the personnel strength of Airfleet 2 amounted to 200,000 to 300,000 men.
When dealing with Prof. Schroeder's responsibility for the high altitude experiments in Dachau, the prosecution had a overlooked the fact that at the time in question, Prof. Schroeder was Airfleet doctor and maintained that during that time he was, after Prof. Dr. Hippke the Medical Chief, the second highest Medical Officer of the Luftwaffe. From that circumstance, the prosecution draws the inference that Prof. Schroeder, as the second highest Medical Officer, was the obvious deputy for Hippke and therefore had to know about the most important events concerning the Medical Inspectorate.
The defendant Prof. Schroeder has in his defense proven beyond doubt that he was not the most senior Medical Officer after Hippke and therefore not Hippke's deputy. As Generalarzt and Generalstabsarzt he simply had the rank next to that of the Medical chief as did the other five Airfleet doctors. Above him in rank were two Generalstabsaerzte, namely Generalstabsarzt Dr. Neumueller and Dr. Blaul. The former had his office in Berlin and was in fact Hippke's deputy if and when necessary.
Prof. Dr. Schroeder has also refuted the further assumption of the prosecution that his relations with Prof. Dr. Hippke had been particularly close, for which reason Hippke had informed him about the highaltitude experiments. In particular the witness, Dr. Augustinick, Schroeder's personal adjutant, during his service as an Airfleet doctor, has confirmed that relations between Hippke and Schroeder were extremely tense and unpleasant and that they confined themselves to discussing only the necessary things on the occasion of their highly infrequent official meetings.
Thus the assertion of the prosecution that by virtue of his official position, Prof.