Muder and manslaughter, bodily injury and deprivation of liberty committed against the responsible mainstays of such system are acts of self-defense in the interest of peace and humanity. They are lawful and not punishable, they are duty if there is no other remedy.
This question as to the lawfulness of political murder and the duty to commit political murder has at all times been pondered about not only by lawyers, but also by a wide circle of poets and philosophers. Friedrich von Schiller justifies the murder of Gessler as the last deperate attempt to gain liberty from servitude wit now way out. Thus the murder of a criminal tyrant in addition to being justified legally is also valued highly in a moral sense.
It may happen sometimes that of necessity it is not the real attackers who suffer injury. A person warding off an attack may be forced to affect a third innocent party. Provision has been made for this case also in Article 54 of the German criminal Code; it is called necessity. Article 54 reads as follows: "An act does net constitute an offense, if part from instances of self-defense, it was committed in a state of necessity in order the rescue the perpretrator or his relative from imminent danger to life or limb, provided the necessity was caused through no fault of the perpretrator and could not otherwise be averted."
The legal codes of all peoples and all times had to take a stand on this problem of two legally protected interests in conflict with each other, which can only be solved by violating or even destroying one of them. Law cannot insist with extreme consistency that the individual should respect the rights of others under all circumstances and in every situation and sacrifice hos own instead. A Frenchman has the following to say with regard to this point: "This theory is admirable for saints and heroes, but it is not designed for vulgar humanity." Quod non est licitum in lege, necessitas facit licitum is a saying in Roman law and Rossi, a French jurist says:
"The act is excusable only when the agent is yielding to the instinct of self preservation, when he is confronted by imminent danger, when his life is a stake." An old German legal proverb says: "Need knows no law." Finally American Law also deals with this problem under the name necessity-- (Wharton Par. 642) - a literal translation of the German expressions "Not" or "Notstand". Thus under the plea of necessity a shipwrecked person may push his companion in misfortune from a plank which cannot support both, Applied to resistance movements against criminal governments, these principles mean that even third parties may be hurt, if there is no other way out, if the "Not" "Necessitas" necessity it is required imperiously and unavoidably.
Your Honors are called upon to reduce the principles of selfdefense necessity to their common denominator, to apply them to Sievers' case and thus to insert them among the unwritten rules governing international relations of public and international law. Anglo-Saxon legal thinking and the principles of natural law are other legal sources that may be of value to you in arriving at a judgment.
And now I should like to turn to Sievers' case particularly. The following points are of decisive importance in judging the acts of this:
1. Did a German resistance movement exist at all?
2. Did Hielscher's group belong to it?
3. Was this group to be taken seriously and what were it aims?
4. Was Sievers a member of this group and what were his tasks?
5. How did he conduct himself in carrying out his tasks?
6. Did other possibilities exist for him?
It has frequently been asserted that there was no German resistance movement. But, resistance in Germany did exist. I must, however, admit that the question: "Where then was this resistance?" suggests itself to a person not knowing conditions within Germany, particularly during the war. I also have to concede the fact that the public as a whole has not heard of much more than Stauffenberg's bomb plot of 20 July 1944, with its tragic results.
But a person asking this question would completely fail to recognize under what conditions the whole resistance movement was forced to work against the nazi regime he forgets that he too, did not have any idea of the existence of the group around Stauffenberg until this fatal day of 20 July 1944. All the more I am compelled to give a compact presentation of conditions with which everybody was faced who opposed the nazi regime.
The authoritarian regime aspired from the very start to gain complete control over German man, every German woman, over children and over the aged, so as to instruct them along the lines of the new form of government. The demand for absolute authority did not recognize personal freedom. It did away with professional and industrial organizations, with cultural and social institutions, so as to revive them partly in a different shape, completely subjugated to the control of the nazi regime.
On the other hand the battle also set in from the beginning. Nothing would be more wrong, of course, that to imagine that this battle could be fought quite openly, with a great deal of publicity, with the use of physical violence, with fire arms, bombs, war and war cries. Not even the trade unions, the most highly organized and determined opponents of the new regime could afford to adopt this type of warfare in 1933. This regime held the entire public machinery in a firm grip and gained an ever increasing control extending to the spheres of private life, by means of the security service of the SS and the Gestapo organizations. The flexible regulations of the Heimtuecksgesetz allowed for sentences of severe terms of imprisonment even in the case of the pettiest deragatory remarks. Many of harmless remark caused political discrimination and the constant danger of being taken to a concentration camp.
No press could have been found to rebel against the tyrants. If leaflets were secretly circulated whose contents defamed the nazi regime the entire machinery of police, Gestapo, the SD etc. was mobilized.
Posession of arms was certain evidence of acts high treason and resulted in the death penalty for the careless. In addition there was a widespread spy system affecting people's every move. One had to be on one's guard even with one's closest relatives and one's children.
These few words on conditions inside Germany are necessary, however, as a reply to the absurd question the witness Hielscher was asked in Stockholm, namely, "Why do you not speak in public?"
Most striking in their resistance were probably the two great Christian faiths. That was not preached from the pulpits against the Anti-Christ and his false prophets, how many clergy of all denominations went to prison, to penitentiaries, concentration camps, even to death. Of course, the Churches could propagate their views with less restraint than others. After all they did not want to have a part in the over throw of the system by sheer force by the killing of its leaders, and representatives, by armed battle. Those resistance groups outside the Church, however, which had come to realize that without using force the dictator, National Socialism, could never be brought to fall, those who were not held back by the ideological restrictions and inhibitions of the Churches, they must not make themselves known before the day of action dawned. Up to that time they had to keep silent. "Never seek of your aim, but always think of it." If they had forgotten this rule they would have been betrayed by spies and oppressed by the Gestapo. If the Stauffenberg group had not acted in the same way, who knew about it? Who knew of its existence before the bomb burst in Hitler's headquarters on July 20, 1944? The same was the case with all the other resistance groups which unfortunately no longer were in the possibility of acting and part of which had been traced up and secretly killed. The fact that all of them existed is proved, however, by the works of Ford and others.
But downright classical witnesses are the numerous bloody victims sent to concentration camps to death by the Gestapo.
Among these groups was also the group around Hielscher of which the defendant Sievers was a member.
This Hielscher group existed it was a fact, it was an action. Hielscher himself is an unimpracticable witness for that fact. It was the reason for his being under arrest for 3 months subsequent to the 20th of July 1944, for his being one of those who were to be hanged. But Hielscher's underground activity is beyond that substantiated under oath by many equally reliable witnesses. There is, for one, the political emigrant for Dr. Borknau who at least since 1928 was active in the struggle against National Socialism. He had known Hielscher since 1928. He speaks of Hielscher's hostility against National Socialism, of his "sharp attitude at that time, done a great deal of negotiating and conspiring together with Hielscher. Hielscher expounded to him his methods of action. Later on, during the time of his exile after 1933, Dr. Borkenau still watched Hielscher's activity from abroad and convinced himself again and again; Hielscher is carrying on. Such a testimony coming from an emigrant deserves our credence. Another witness who never lost contact with Hielscher is Dr. Topf who himself was active within the resistance movement. He, too describes Hielscher as a violent opponent of National Socialism, and untiring worker and fighter. In addition there are the many affidavits submitted by me and which belong to this context. The fact that Hielscher did not play a bigger part in public does not disprove his activity in the opposition. Camouflage to the hour of decision was the supreme commandment for him also, and Dr. Borkenau considers it a high achievement that he succeeded in this to such a high degree. Sievers was a member of the Hielscher group.
This, too, cannot be any longer subject to any doubt. Apart from the vast amount of testimony given, the whole personality of my client speaks against any National Socialist inclinations on his part. His whole character and temperament and his career were bound to make him a decided opponent of the Hitler system of oppression, murder and terror. His very origin, the interests of his youth took him into an environment which was as far as possible removed from national-socialistic ideas. He, the son of a director of church music, was engaged in studies of history and history of religion. His character make-up led him to the Wandervogel and to the Boy-Scouts; these were interests, activities, inner attitudes which were ridiculed and slandered and violently fought by National Socialism. Everyone who has testified to Sievers' character either in the course of direct examinations or by affidavits knows him as a sincere man with high ideals of deeply felt humanity and a strong sense of right and justice. If you consider this description of Sievers' character given by well-known anti-fascists along with the frequent support which Sievers, as has been proven, gave to the victims of nazism, only a small step is needed to make us certain of the fact that Sievers took part in a resistance movement.
The prosecutor may say: "I don't believe all that; for Hielscher and Sievers did not do anything."
This would be wrong, Your Honors! Other resistance groups have had the same misfortune of not getting a chance to deal a blow. The witness Hielscher has stated the reasons very clearly why, after the unsuccessful plot of 20 July 1942, nothing could be done for a while. Due to the temporary elimination of the Wehrmacht from the plan of Hielscher and his comrades everything had to be started again from the beginning.
Just what was the position of the defendant Sievers within the Hielscher group and what were his tasks? Hielscher himself gives us the answer:
Sievers had two tasks:
1.) Obtaining information from the immediate entourage of Himmler, as basis for the assignment of all the opposition forces as to place; time and manner;
2.) Sievers was not only a spy and a scout; he was appointed, and was ready, to liquidate Himmler at the moment of action;
These tasks demand a double legal clarification:
a) Were they themselves permissible, legal or even in keeping with duty?
The principles which I have developed concerning the concepts of self-defense in the field of political warfare present the answer to this.
b) What measures was he permitted to use? How far was he permitted to venture into this field which was punishable in itself? To what extent could he implicate third parties who were not involved, but even victims of National Socialism?
The rules of necessity point out the way to a decision and solution of this problem.
If I now turn to the first problem, I can deal with it relatively briefly.
According to everything that we know today, it is an incontrovertible fact that Hitler and his accomplices terrorized the German people and the entire world in a criminal manner and with criminal means, that from the very beginning they constituted a direct danger to peace and to all civilization, and that finally the worst fears on this score became a horrible reality. The primary condition for defense, self-defense, is beyond all doubt, the following: an imminent illegal attack upon the highest possessions of mankind. This was, to use the language of the German Reich Penal Code, the "danger" which was to be "guarded against".
We know, however, that this defense could not be carried out by the normal means of a democratic parliamentary system. I have described the truly devilish organization by which the application of these means had been made impossible.
From this, it becomes apparent that only the elimination of Hitler and his confederates was the one way by which this system could be broken and smashed. Less stern and violent means were not available.
With that, however, the Hielscher Plan to remove Himmler had become sanctioned and obligatory for anybody who had the opportunity to act according to it. According to the statement of Hielscher and other credible witnesses, it cannot be denied that Sievers received that assignment.
If the removal of Himmler was justified, so was also, by the same token, the preparatory activity as a spy and informer which went with it.
Before turning to the answer to the question as to how far Sievers' activity could affect third persons, I feel it necessary to draw a short outline of Hielscher's plan of action and the position of Sievers.
It was not in vain that Hielscher gave us ample information on this subject. We have also heard other witnesses as Dr. Borkenau, Dr. Topf. Sievers gave us a clear outline of his tasks. All these depositions show a degree of agreement and unanimity which excludes any doubt in their truth.
Hielscher was one of the first of those few men who realized that action against the system could come only from the very ranks of the NSDAP. He had realized that only the removal of the top men of the NS-regime and the seizure of the government right at the top held out any prospects of success, and that no hopes, no hopes at all, should be placed upon a revolutionary development coming from below, from the rank and file of the people. Such a revolution would, within a short time, have been drowned in streams of blood without achieving anything.
This realization, however, made imperative four groups of measures upon which Hielscher has elaborated on 15 April:
(a) Preparation of the action by a well-camouflaged organization of trusted representatives and spies within the NSDAP, the Trojanhorse policy.
(b) Placing qualified men of courage as closely as possible in the entourage of leading personalities of the NS among which Himmler was the most dangerous one.
(c) Removal of Himmler and other top men upon a given signal.
(d) Seizure of the government by an organization kept in readiness for this purpose.
Hielscher also had realized that despite a certain freedom of action for his activists, success could only be hoped for if and when each man obeyed his orders exclusively and in a spirit of strict discipline. Only thus could he keep everything in his hand and give the signal at the proper time. And in this connection I must emphatically stress the fact that Sievers, in accordance with that necessity of discipline, acted always in full agreement with Hielscher; that he secured orders from Hielscher at every important moment after giving him an exact situation report, and that in this manner Hielscher was kept closely informed about the game in which Sievers was involved and the hand he played in it. Sievers was nothing but the tool in the hand of the head of the movement. Therefore, I want to submit to the court that your verdict on Sievers will fall with the same weight upon his guiding spirit, Hielscher. Hielscher will be sentenced with Sievers, he will be acquitted with him. And thus Hielscher could at the conclusion of his examination declare with the same courage which he showed when deploying Sievers and other men of his in dangerous positions that he not only accepted but demanded to bear the sole responsibility for everything his follower Sievers was charged with in this trial.
Hielscher gives the following outline of Sievers' assignment:
He was to work within the Trojan horse, i.e. in the disguise of a zealous and enthusiastic collaborator, by (a) acting as an informer and spy, (b) using his influence in order to place others for the same purposes in similar positions or in positions where their work would not be interfered with, (c) covering up for, or if possible, rescuing members of the resistance movement when they were in danger;(d) and finally, removing Himmler when the moment for action had come.
This last point, however, was the very core of my client's assignment.
Everything also was subordinate to this aim, this order, and was subservient to its preparation and furtherance. From this point his whole conduct can be grasped and his actions judged.
And what did Sievers do within the scope of this assignment?
I can't, at this moment, reiterate in detail the arguments I elaborated upon in the first part of my plea. I have arrived at the conclusion that Sievers did not act as a participant in or accessory to the crimes under indictment. However, if one does assume that Sievers has to be found guilty on some of the counts as charged by the Prosecution, it will be my task to find the justification of this conduct before a forum of natural law, as transcending human law, and to place it before the court.
What is the explanation for the fact that Sievers remained at his post even after 1942 when the society "Ahnenerbe" became involved in medical experiments which possibly were to assume a criminal character. We should keep in mind that Sievers was assigned to effect the removal of Himmler and that he was the only person within the Hielscher group who had a chance of success. Thus he held the actual key position within the Hielscher movement, a position on which depended success or failure of the whole action.
His destiny was, from the beginning to the end, only in his hand; for Himmler was the most dangerous man in the Nazi system, since he as the chief of the German police and commander of the home army had all domestic armed forces at his disposal and thus was in a position to crush every uprising in its earliest stage. Himmler was able to run the government without Hitler, but not Hitler without Himmler. The removal of this man therefore came first, both in importance and in urgency. If the person of Himmler was overlooked or if he succeeded in escaping somehow, everything else became problematic. We may therefore use Himmler's importance as a yardstick for the importance of Sievers who was kept ready to strike in the former's closest entourage. To ask the question whether that position could be abandoned, would mean to answer that question in the negative.
Sievers was aware of the far-reaching consequence of such a decision. In this moreover he became involved in the deepest inner conflict of his life. It was a question of avoiding the greater of two evils and accepting the lesser, or of circumventing both. The latter would have been the easiest way out. The fact that Sievers became involved in this conflict bears witness to his sense of responsibility, his feeling for right and humane value. To be sure, he was not able to handle that conflict by himself. Too much depended on his decision, affecting not only himself but the whole of the resistance movement. We must put ourselves into the plane, into the soul, of a man who, on the one hand, felt the pressure of a revolting inner abhorrence of the things which he felt were in the making; but who, on the other hand, was aware of the fact that he would no longer be able to complete his task at the post assigned him, if he allowed himself to be guided by his personal feelings. Perhaps Sievers would have had the possibility of disappearing from his post without much ado and with no great disadvantage for himself.
Could he not have retired to a position with some harmless research undertaking? But by doing that Sievers would have become a deserter.
In this inner conflict he turned to Hielscher, and Hielscher decided after thorough deliberation and consultation:
Sievers remains at his post!
For it appeared impossible to forego the position in the entourage of Himmler. If Sievers left his post, he had to be placed in another position close to Himmler, or to be replaced by another man with the same tasks. Was that possible? Wouldn't he have arrived at the same crossroads again and again if he remained close to Himmler? Was it to be expected that another man would succeed, was there time to wait until he could succeed? Was Sievers not likely to arouse suspicion even if he took all possible precaution when motivating his resignation? For it had been stark lunacy to do it openly and under protest. Just imagine the danger in which such an act would have involved himself and his comrades. And who would have had any advantage from his resignation? And, another question: If Sievers' resignation could have prevented the human experiments at all, that still would have been only an insignificant partial success. As far as the entity of the great objective, the removal of Himmler and the NS-regime, was concerned, nothing would have been gained, nothing but a further postponement of the decision or altogether the impossibility of reaching such a decision owing to the loss of the actual key position. The consequence would have been still more victims of the NS-regime. Thus a partial success had to be sacrificed in the interest of the great objective.
If the members of the court will review all these questions, in their minds, it will become dear beyond any doubt that the decision taken by Hielscher was the only one possible.
And with that I arrive at the final, most important part of my defense plea, the question:
What was the line of action Sievers had to take at his post?
Doubtlessly he had to make certain concessions, i.e. he had to adjust his behavior to that of the persons he planned to remove. Every spy has to use camouflage and I an not telling a secret if I say that many a spy has donned the enemy's uniform in order to complete such an assignment in war times.
It is a known fact that the French general Giraud made good his escape from a German camp in 1942 wearing the uniform of a German General.
Everything Sievers did - his membership in the NSDAP from 1929 to 1931, his renewed membership in the NSDAP and SS at a later time, his high position within these organizations, his tenure of office as the business manager of the "Ahnenerbe" and his acceptance of a high rank in the SS, - was no doubt part of the camouflage which according to Hielscher, Dr. Borkenau, Dr. Topf and others was a necessary prerequisite, a camouflage used in the line of duty for the completion of the task of the defendant Sievers.
Obviously, no one will try to maintain that this camouflage which were used to approach a lawfully approved, aye, even desired aim, are as such criminal and non-permissible. The fact that the outward membership in the SS held by the defendant Sievers is therefore ipso facto excused by its purpose of camouflage. He can not be blamed, either, for posing at certain occasions as a good Nazi party member. That was part of his duties according to Hielscher's orders.
The career of the organiser or of an activist in the German underground movement would have found an immediate end if he had not acted a Nazi in every word and in every movement.
I have to give even greater consideration to Sievers' consent and his further participation in the experiments with human beings and in the organization of the skelton collection which involved injuries to third persons:
Only here the question arises: where are the limits of emergency, if it involves actions which in themselves are criminal acts. The answer to this question is the main point of the trial against Sievers:
And here the legal systems all over the world have the same principle:
The right violated by an act of emergency must be relatively more valuable than the protected or saved right.
What rights are competing with each other in the case of Sievers? On one side there is the existence of the civilization of the world, peace on earth, humanity, life and existence of millions of people who, through Hitler's criminal domination, were directly endangered or already violated. The new international law calls such actions crimes against peace and against humanity and threatens them with the most severe punishment. The Allied nations held these rights valuable enough to have their soldiers fight and die for them with enthusiasm.
On the other side we have the life of individual human beings, their physical safety, respect and deference for their personality, their freedom and free will which, too, certainly constitute rights of high value. There may have been hundreds of victims who had to suffer in this connection. However, it was a negligibly small number in comparison with the masses which Himmler, Hitler and their accomplices had already murdered or intended to murder.
I now ask:
Which of the two contesting fights is the more valuable one, in the sense of proportionality?
It shall be far from me to excuse or belittle the horrible things which have happened in the concentration camps, but inspite of all horror which I feel, I can only answer the question as follows:
The protection of civilization and of humanity is to be put above the life and health of single individuals, as much as one may pity these inevitable victims. And, therefore, it was necessary, absolutely necessary, to accept the violation of the less valuable rights characterized above, in order to save the more valuable ones, the great entirety. It was necessary for Sievers to remain in his position at the "Ahnenerbe" in order to be able to liquidate Himmler.
It would be easy to state now, afterwards, that Sievers could have acted differently, that he didn't have to go that far. But there is nobody who has told us so far: how. Now even the prosecutor attempted to or was able to make a concrete proposal to that effect. And even if it should be possible, even if today on calm reflection, a possible way out could be found, it cannot be hold against the defendant Sievers if he did not think of it at that time. One can really put oneself in his situation at that time and take its psychological effect into consideration. Only then can one imagine what amount of reflection, what amount of keenness in selecting his means could be asked of him. This, too, is a recognized principle and explained in detail at Wharton, article 621. Everybody must, admit, however, that it was enormously difficult to find one's way in this labyrinth of demands and sentiments, to keep exactly to the right path, and not to overstip, not even by a hair's breadth, the fluctuating limits of emergency. And we also know how much Sievers fought with himself for a solution of this problem. If afterwards you state that only in the choice of his means did he make a slight mistake, he is, after all, fully excused through the psychological effects of situation at that time; one must not ask too much of one who was to act in a dangerous situation.
Honored Judges, others, too, faced the same question Sievers had to face. What for instance would you do with the camp doctors who knew about those experiments in the concentration camps and prepared them and assisted the doctors accused here? Would you sentence these people for complicity? What does for instance, the witness Neff say on 18 December 1946?
"I am aware of the responsibility and of the consequences. It was not only the court martial, not only the fear of Dr. Rascher, but the duty placed upon me by my comrades to hold out there, in order to prevent what I could".
Would you sentence the Lieutenant of the Ghetto, Rosenblatt at Litzmannstadet, who, according to the testimony of the witness Hielscher was forced, personally to select the inmates of the ghetto for the gassing? Would Rosenblatt claim in vain, that, after hard struggles with himself, he accepted the duty placed upon him by his comrades to hold out in order to precent even worse things.
We see, that in the last analysis made exactly the same decision Sievers made.
And still Sievers tried to make up for all he had to tolerate and witness by helping in other ways. Did he not save many? Sievers participated in a decisive way in the prevention of further experiments with low pressure chambers, with dry cold in the mountains, in the prevention of the application of the "n" substance and others. He saved three hundred Norwegian students from the concentration camp at the last moment. By warning him in time, he helped a Dutch professor to floe to Sweden. He alleviated the fate of many others These, however, are only a few examples to which I don't want to add any more for lack of time. You have learned of many more through the affidavits submitted.
And especially I don't want you to forget, honorable judges, that Sievers not only had to witness the sufferings of other, he was also ready to put his own life at stake and to sacrifice it in case of failure.
Put yourself in his position, and you will admit enormous courage and readiness for sacrifice were needed to hold out in the position of the defendant Sievers and to carry through. Did he not see how almost daily other men from the resistance movement were hunted down by the Gestapo, by the Security Service and the People's Court? Did he not have to fear the same fate every hour of his life, and was it not likely that daily temptation to withdraw from this dangerous task would assume gigantic forms?
Gentlement of the high Tribunal, As far as it was possible in this short period of time, I have attempted to demonstrate the actual and legal side of Siever's activities in the Heilscher resistance group. Even if Sievers should be found guilty of participation in inadmissible experiments on human beings, it must be taken into consideration that he did no more that what he was forced to do by his orders. In no place and at no time did he do anything which went beyond the orders given to him. What he did, he had to do, in order to fulfill the great and high task which fate had assigned to him. You, gentlemen of the tribunal, with your impurterbable sense of justice will weigh all pros and cons of the Sievers case, and I am firmly convinced that your verdict in the case of Sievers will be one of "not guilty", for which I plead herewith. Thank you.
THE PRESIDENT The Tribunal will now be in recess until 0930 tomorow morning.
Official Transcript of the American Military Tribunal in the matter of the United States of America against Karl Brandt, et al, defendants, sitting at Nurnberg, Germany, on 16 July, 0930, Justice Beals presiding.
THE MARSHAL: 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, you ascertain if the defendants are all present in court.
THE MARSHAL: May it please your Honor, all defendants are present in the court.
THE PRESIDENT: The Secretary-General will note for the record of presence of all the defendants in court.
The Tribunal will now hear arguments on behalf of the Defendant Mrugowsky.
DR. FLEMMING (Counsel for the Defendant Mrugowsky): Mr. President: The Prosecution said in its arguments: If Grawits were still alive he would sit here as one of the principal defendants on the defendants' bench. This is certainly true. But Grawitz passed sentence on himself. And what is the Prosecution doing? It indits Mrugowsky instead of Grawitz. It does not consider in its arguments that Mrugowsky was not a private person but a Medical Officer in the Waffen - SS, so a soldier, and that Grawitz and Himmler were his military superiors. It speaks of conspiracy but it does not examine thereby to what extent a conspiracy may be conceived when military subordination plays its part. The Prosecution advanced in its summing - up documents and in its orals arguments only original allegations of the indictment. It did not discuss at all the evidence brought by the defendants for their discharge. It just pointed out a bit scornfully that this evidence is mostly composed of affidavits. But this is no facult of the defendants'. They would have preferred to be able to produce countproofs taken from their records.
But all the documents of the defendants and of other offices, where the evidence brought in by the Prosecution is taken from, are in the hands of the Prosecution. It selected parts of them hich, separated in part from the content, seem to incriminate the defendants. But it made it impossible for the defendants to find the records which are in connection with the evidence produced by the Prosecution and would bring about a complete elucidation.
I would ask the Tribunal to consider in particular this difficult position of the defendants with regard to evidence. It compels to an increased extent to the old legal principle that the defendant is considered as not guilty before his guilt has not been proven and that the Court is to judge in favor of the defendant if the case is doubtful.
The charges against Mrugowsky are composed of three groups: (1.) The typhus experiments and the execution carried through with aconitine where volunteers were not in question. The Tribunal will have to consider in these cases if the emergency of the State contended by Mrugowsky really existed and if it justifies the typhus experiments and the execution by aconitine. If answered in the affirmative, neither the typhus experiments nor the aconitine execution are criminal since there is no objection raised on the way they were carried through. If the question is denied it is to be considered if and to what extent Mrugowsky partook in them and if he is responsible under criminal law.
(2.) The second group are the acts of Ding which he committed arbitrarily, e.g. his participation in a killing by phenol and the special experiment on 6 persons.
(3.) The third group are the protective vaccinations for which volunteers were available according to the evidence produced by the Prosecution.
The defendant Mrugowsky is indicted first of all for his alleged participation in the experiments with typhus (spot fever) at Buchenwald and in other medical experiments. When submitting evidence the Prosecution treated these experiments as criminal and as experiments carried through by physicians. Also when interrogating the experts Professor Leibbrand and Professor Ivy the Prosecution treated these medical - experiments as experiments made by physicians and asked the experts if these experiments were to be considered as admissible from the point of view of medical ethics.
I am convinced that the experiments to which the Prosecution refers as to the base of its indictment are not at all experiments which originated from the initiative of the executing physicians. They really are research work necessitated by an uncommonly urgent emergency of the State and ordered by the highest governmental authorities competent for it.
Also Professor Ivy admitted that there is a fundamental difference between the physician as a therapeutist and the physician as a scientific research worker. When asked by Dr. Tipp: "So you admit that for the physician as a therapeutist, the physician who cures, other rules and therefore other paragraphs of the oath of Hippocrates are in force?" he gave the answer; "Yes, I do so without any doubt."
Consequently experiments on human beings carried through for cogent reasons of a public character and ordered by the competent authorities of the State cannot simply be considered as criminal only because the experimental persons chosen by the State for the research work were not volunteers.
The Prosecution ought to have shown in addition with regard to the individual experiments for which reasons they were criminal apart from the fact that the experimental persons were not volunteers.
The largest space in the indictment against Mrugowsky is taken up by the typhus experiments at Buchenwald.