DR. WILLE: Those ready are Romberg, Pokorny, Beiglbock and Schaefer.
THE PRESIDENT: The Tribunal had been advised that none of those translations were ready. If those translations are ready so the Tribunal may have them on the bench, then this afternoon we will proceed to hear counsel for Pokorny, Beiglbock and Schaefer. I presume that arguments on behalf of Ruff and Romberg should be presented in sequence if possible. If there is further time available this afternoon, then we will proceed with some other arguments. The translators have all the translations even if they are not ready for the Tribunal. This afternoon we will proceed, if the translations are available, with the arguments for the defendants Beiglbock and then Pokorny.
THE INTERPRETER: This is the interpreter. The translation of the Beiglbock plea is not yet completed, perhaps it would be best to put that at the end.
THE PRESIDENT: Very well, we will proceed then with the arguments for Schaefer, Pokorny and Beiglbock if these translations are ready.
The Tribunal will now be in recess until 1:30 o'clock.
(a recess was taken until 1330 Hours.)
Afternoon Session.
THE MARSHALL: The Tribunal is again in session.
THE PRESIDENT: The Tribunal will now hear from counsel for the defendant Schaefer.
DR. PELCKMANN: (Counsel for the defendant Schaefer) Mr. President, Your Honors: I need not deal with the questions why the general, political and organizational back-ground as alleged by the prosecution does not apply to Schaefer. I need not do this as, for legal reasons, the legal term conspiracy is not applicable in the Trials before Military Tribunals in Nurnberg.
In the question which concerns us solely, namely whether Schaefer has been guilty of a crime against humanity as listed under Control Council Law 10, we must take into consideration the principle of all civilized nations quoted repeatedly in the verdict of the I.M.T. Guilt under criminal law is a personal one. Therefore no punishment without guilt.
In view of the vagueness of the definitions of participation listed under Art. II, 2 a legal bridge can only be established through a very strict subjective commission of an act, by a very strict examination of the whole of the evidence as to whether and why the defendant can be found guilty, and whether and why a charge can be raised against him from a given situation taking into consideration all circumstances which have had influence on his psychology, his acts and commissions. Finally, the question has to be investigated whether - provided the defendant has conducted himself in the manner he is now expected to - other consequences would have resulted, i.e. the actual event could have been prevented.
What do we find? if we examine such facts as are applicable here?
Schaefer, called up as a soldier in 1941 and promoted to Unterarzt, i.e. not an officer, was given the order of dealing with problems connected with Sea-Distress and in particular with the problem of thirst.
It was with great pleasure that he carried out that order because he knew that to solve that problem would once and for all finish the tortures suffered by all shipwrecked people all over the world.
He settled down to his work with that scientific thoroughness for which I have offered detailed proof. By reading the entire literature for months it became possible for him, at the orders of the Chief of the Medical Inspectorate to hold a lecture on thirst and the fight against thirst in Sea-Distress at the Nurnberg Conference of 1942. The lecture was a purely academic one and not a report on experiments on human beings. The prosecution, it is true, alleged on 12 December 1946 the opposite, but the complete document #401, Pro. Exh. 93, proves that this allegation is wrong. (re: Schaefer Exh. #17). I should like to mention here that no proof has been furnished for the fact that Schaefer has heard, or heard about Holzloehner's and Rascher's lectures at that meeting.
In dealing further with the sea-water problem, Schaefer made Investigations, which had already been made by I.G. Farben. Through scientific collaboration with that firm a method was finally found which made sea-water drinkable without any injury to health. Many chemical and pharmacological investigations and experiments lead to this result. There was no need for experiments on human beings, because on the basis of all known scientific methods of research, Schaefer realized that this method was entirely innocuous.
The method was called "Wofatit SW", "I.G. Method" or "Schaefer Method".
In principle and its composition it is, with a very few small deviations the same method as invented by the American Dr. Ivy and used by the U.S. Forces. This was confirmed by Dr. Ivy as a witness.
The Schaefer-Method was completely finished by the end of 1943 and the Inspector of the Medical Service of the Luftwaffe, Schaefer's highest superior wanted to introduce it in the Luftwaffe.
The Technical Office, another branch of the Luftwaffe opposed the introduction, giving as a reason that there was not sufficient silver available to produce the method.
The important men in the technical Office, Oberstingenieur Christensens and Stabsingenieur Schickler insisted on the introduction of a method invented by Berka. This consisted of food-sugar which removed or lessened the salty taste of sea-water, but made no change in the salt-contents.
I have proved how Schaefer, since the beginning of this plan fought against the "Berka-Method" as a piece of sharlatanism.
He wrote a damning report on the results of experiments carried out by Oberstarzt von Sirany on behalf of the Technical Office on voluntary patients of a Luftwaffe hospital with the "BERKA-METHOD". Schaefer had been ordered to carry out this examination by his superior officers in the Medical Inspectorate.
The result of Schaefer's attitude was that the Technical Office and officers of the Luftwaffe suspected him of being saboteur.
SCHAEFER realized what that accusation meant in the third Reich and the fifth year of the war.
He knew of cases where Medical Experts were persecuted by the R.S.H.A. (i.e. the Gestapo) merely for deviating scientific opinions in important military matters.
Nevertheless he explained his opinion that the "BerkaMethod" was pointless in the conferences of 19 and 20 May, when the suggestion was made to test that method on concentration camp inmates. As an extreme warning he explained that the Berka-Method would lead to death on the 12th day at the latest. This has been proved by prosecution document #177, Exh. #133 and Schaefer Document, Exh. #19.
That was all he could do in his position as noncommissioned officer, as the smallest among the resplendent uniforms of the 13 higher officers.
Schaefer does not make a decision in that conference. That is not done in military circles. The highest office chiefs order and command. The defendant Schaefer does not receive the order to make experiments on concentration camp inmates. He is not even being sent to joint the commission investigating the conditions of the experiments, because he is well known as an opponent of the whole affair.
Another chance to prevent these completely senseless experiments, as Schaefer saw it, on human beings with the "BurkaMethod", be it in concentration camps, be it in Luftwaffe hospitals, passes by. On 25 May 1944 the world famous Prof. Eppinger of Vienna stated that Burka's idea, regarded as utterly absured by Schaefer namely that his (Burka's) method, would dr-ive sea-water through the body without any harm, was not entirely wrong. Three other professors, famous medical experts, concurred in Schaefer's opinion. This is proved by Schaefer documents Exh. 19, 35, 36.
This lost Schaefer another medical reason openly to oppose the carrying out of these experiments.
No law in the world can demand that Schaefer should have done more than he has done, if one takes into consideration the situation in Hitler Germany and Schaefer's particular position, and his rank in a correct and understanding manner.
Never was there in the conferences mentioned in the prosecution documents a word said or an order issued that the Schaefer method was to be tested on concentration camp inmates. Only for that would Schaefer have been responsible. In view of the excellence of his method he would not have shied clear off that medical responsibility although he would not have approved of using concentration camp inmates.
The experiments with the "Burka Method" for which he was not responsible were carried out without his help and his knowledge. It is therefore not incriminating for him that he listened to the lecture of Prof. Beiglboeck which completely revealed the uselessness of the BurkaMethod.
I make the motion therefore to acquit defendant Schaefer and release him from custody.
THE PRESIDENT: The Tribunal will now hear from counsel for the defendant Beigelboeck.
I would ask that some German counsel kindly notify Dr. Sauter that his argument on behalf of the defendant Ruff will be called following the argument submitted by Dr. Steinbauer.
DR. PELCKMANN: May I add something else, Mr. President, my colleague Gawlik has asked me to report to the High Tribunal that the time which has not been used up by my plea, he would like to use up himself.
THE PRESIDENT: That is probably true, but the Tribunal does not extend the time saved by one counsel to any other particular counsel.
DR. STEINBAUER: For the defendant, Beigelboeck:
Mr. President Your Honors Paragraph 5 of the Law for the Protection of Animals of 24 November 1933, Reich Legal Gazette I 987 prohibited interference with or treatment of living animals for purpose of experiments which are connected with considerable pain or damage to them, for the territory of the German Reich in it's entirety.
While thus protecting horses and dogs, cats and rabbits, for reasons of humanity one did not shrink at the same time and at the same place from doing such things on human beings. According to the indictment, human beings were cruelly murdered by the tens of thousands in the extermination camps, and all this was diabolically done in the name and under the cloak of science or misusing a method connected with science. And there was the aggravating circumstance that most of the victims were defenseless people whom political fanaticism or the war had led into the hands of their torturers.
It is therefore not to be wondered at that all these cruelties which in addition have been exploited by propaganda in some countries produced new ways of contempt and indignation and fanned the thoughts of hate and vengeance smouldering below the coals to bright flames!
Under such circumstances it is made very difficult for the judge, who is only human, after all, to arrive at a just judgment. That is where the defense must come in, and where it will be their high moral duty to contribute their share to scrutinize with dispassionate objectivity the subject of this trial, which is so rich in horrors, and to arrest the glance of the eye for the guilt and for the responsibility of each one of the 23 defendants. The external circumstances alone entail the great danger that the deep shadows which seem to fall on the one or the other of the defendants will equally darken the whole lot of them.
The Chief of Counsel, however, said in his opening speech: "We cannot be content with proving that these crimes have been committed and that certain people committed them. Our deep responsibility towards all peoples of the earth is to show why and how these things occurred." As a defense counsel, I profoundly agree with the Chief of Counsel. This trial, with its toil and labor, must not be confined to the mere purpose of punishment, it must also contribute to making such crimes impossible forever and everywhere by exposing their causes and connections. The Chief of Counsel, however, sees the cause in National Socialism alone, the criminally demented error which has wormed its way into every sphere of German life, and the consequences of which were devastating. Though it is correct that National Socialism magnified certain pathologic degenerations of our Western form of society up to paraxism, it is not the only cause and the evil springs from much deeper sources.
To expose them all would go far beyond the frame of this trial. we have to be content with drawing a sketch of the situation. We all feel we are treading on swaying ground and are in the midst of a serious crisis of our order of society. Its causes are twofold: spiritual-moral and social economic which overlap, supplement and connect one another. The heirloom of our forebears seems to be used up: scepticism steps into the place of faith, nihilism enters the place of reverence, a certain spiritual vacuum is seemingly bridged by activism, but everything becomes relative and the denial of all metaphysics is called positivism. Man is only a conglomeration of bones, nerves and muscles, and entirely relinquishes his place as a soul-endowed individual. He marries according to selective breeding, he nourishes himself with vitamins and calories, his sensual life is hormone content, and his ethics is psychoanalyzed. The masses with their lack of judgment and their intrusion step into his place and show their preference for the super-dimensional. Everything becomes unique and great! The economic consequences are proletarianization and mechanization. But human dignity and real freedom step into the background. Technique celebrates triumphs, but therein lies the danger.
And science? It also celebrates triumphs. Natural science has reached undreamt of heights. Man tears asunder the veils of nature, penetrates into the stratosphere, smashes the atoms, creates nitrogen out of the air and uses it to fertilize the soil, and synthetically produces fuel, gold, and jewels. Aye, the science of our time has become void of poesie and void of soul.
It has offered but little resistance to its subjection to politics, and the Austrian Wilhelm Roepke, who lectures at the University of Geneva, is justified to quote from Rabelais in his book "The Social Crisis of our Time.":"Une science sans conscience n'est que ruine de l'ame.'
The German people, after so many years of suffering and a long way of the end of its trials, refutes the cruelties as set forth in the indictment and speaks with Montaigne: Je hais cruellement la cruaute! "I cruelly hate cruelty!" Therefore it would understand if the mouth of the victors would pronounce a severe judgment also in this trial, but it demands that the millennium-old commandments of the Decalogue should also elsewhere be valued more highly than the biologism of our present day. For, while talking of peace, the scientists of the world are mobilized to create newer and more effective weapons, millions of Germans expelled from their native soil err hither and thither, hungry and cold, whilst woman and children who were frozen to death were carried out of the unheated refugee trains from the East, and millions of prisoners of war suffer a fate which is one single outcry of violated human dignity.--
All this had certainly to be contributed to the question put by the Chief of Counsel.
Before I go into the details of the charges against my client Dr. Beigelboeck, I would like to talk shortly about two problems which seem to me important for the judgment.
1) The legal basis of the indictment, and
2) the question of the medical-ethical basis of this trial, or, in short, the relationship : Physician and research-worker.
But one can go a step further and determine whether the Control Council law as a whole can form a basis for the indictment. When the law was published it aroused a lively discussion, and I remember that the American chief prosecutor in the IMT trial, Justice Jackson, severely criticized the law.
For Control Council Law No. 10 is a law of the occupying powers and goes back to international law. The Prosecution even refers to this law in this trial, when they accuse the defendants in Count 10 of violations of international agreements, especially the Hague Convention of 1907 and the Convention on the Treatment of Prisoners of War (Geneva 1922). With respect to the justification of the Control Council in issuing this law, it has been pointed out that through the unconditional surrender and the termination of the Reich government, the rights of sovereignty were transferred to the occupying powers. (Kelsen) Others refer to the French principle: Ou est le drapeau, est France, that is, the occupying power brings its own law into the occupied territory.
On the other side, it can be said, that even in case of an unconditional surrender the vanquished does not lose all rights. On the contrary, one reason for surrendering unconditionally may be that even in that case the standards remain which the civilized peoples of the earth have established to regulate international relations, such as those on the treatment of prisoners of war, protection of private property, etc.
This to refer to a particular case, also results from the Rules of Land Warfare of the United States of America. The German laws offer sufficient means and ways of punishing war crimes and crimes against humanity committed.
It contradicts his legal regulation to create new laws, without military necessity and about acts alien to the laws of the country.
Furthermore, it is impossible to return to acts and deeds of the past. In Proclamation No. 3 of 20 October 1945 of the occupying powers about the principles of reconstructing justice in Germany, it is expressly stated in II, paragraph 2, "Punishable responsibility only exists for acts declared punishable by law." This is, therefore, a solemn proclamation of the principle nulla poena sine lege.
In addition to that, the legal concept of conspiracy is entirely alien to our continental legal system. It is of American origin and originated from the fight against gangsterism.
But there is still some more to it: my client had nothing to do with the planning of a conspiracy, not even according to the indictment. Perhaps one might allege that by carrying it out he became an accessory later on and took a consenting part in it. Now Beigelboeck was a medical officer in the rank of lieutenant. Well, you can't call a soldier who carries out a military order of his superior a conspirator, if he remained at the place accorded to his rank. He did not make any plans with his superiors, but he only did within the framework of military regulations what his rank demanded of him. His activity during the war was governed by regulations from above which were independent of his own will. This fact alone speaks against the assumption of a conspiracy. What may be of interest to us from a penal-legal point of view is the question where are the limits which call a halt to the military power of command.
And thus I arrive at the second important legal question of this trial, as far as it concerns my client on the question of "higher order" I submitted proof that the defendant, Dr. Beigelboeck, has carried out the experiments against his will by order of his military superiors and as a soldier, and in my opening speech I referred to the judgment of the In-ternational Military Tribunal in Nuernberg, which created a precedent in this respect.
In this present case, however, this question is of such decisive importance that it is absolutely necessary to discuss it once again in detail. To arrive at a correct solution we have to inquire how this question is regulated in the Military penal codes of important civilized countries. Since the defendant was a member of the German armed forces, let us start with German law. The problem is regulated in the German Military Code of 10 October 1940, Reich Legal Gazette I, p. 1347, Par. 47. Heading Par. 47 is the principle: "If by the execution of an official order within the frame of official competence a penal law is violated, the commanding superior is alone to be held responsible." If we take a look at the laws of other countries, we have first of all Art. 114 of the Code penal which says that a civil servant is excused if he acts by orders of his superior within the frame of his competence, where he is in duty bound to obey within the hierarchical system. Further let me refer to Art. 122 of the Italian Military Penal Code, to Art. 30 of the Swiss Military Penal Code, and to No. 11 of the 3rd Chapter of the British Handbook of Military Law.
Since the defendant is on trial before American judges, we would like to make an inquiry which point of view the American Law takes with regard to this question.
The official "Military Law and Precedents" by Colonel William Winthrop, Washington, Government Printing Office 1920, 2nd edition, says the following on page 296:
"Though obedience of subordinates is the basic principle of military service, it is till required that only a lawful command should be obeyed. Should the subordinate, however, be required to judge whether or not an order given by his superior is lawful, it would if adopted as a general principle, in itself overthrow all military discipline.
Exceptions are only cases of obvious violations of law, which, however can occur only seldom. Should the subordinate suppose that the order was lawful and authorized and consequently obey it, he can expect to be justified before a court-martial." Further Oppenheim International Law (London 1935) Vol II, p. 453 and further: Ernst J. Cohn "The Problem of War Crimes today in Transactions of the Grotius Society Vol. 26 (1941) pp. 125, 144.
Therefore, we say that in the interest of the striking power of the armies unconditional duty of obedience is the main rule is all military laws and only in very few exceptional cases can we depart from it. In addition to that we have to consider the quite unique conditions which the dictatorship in the Third Reich created during the war. It is evident from the documents submitted by the Prosecution that, next to Hitler, Himmler was the most powerful man in the Third Reich particularly during the last years of the war, and exercised unlimited mastery over life and death. Concerning experiments on human beings, he declared expressly that people who refused to carry out such experiments are "traitors to King and Country".
Whoever has been during the dark years in silence in the greater German Reich of Adolf Hitler, the landmarks of which were barracks, wooden huts, concentration camps and slaughter houses for humans, whoever has been within Heinrich Himmler's sphere of power, whoever went through the prisons and the interrogations of the Gestapo, whoever was frightened when his doorbell rings at an unusual hour, only he can full grasp what it means to offer resistance to such an expressly emphasized will of Heinrich Himmler.
In agreement with the Charter of August 1942, Article 2, 4 b of Control Council Law No. 10: "The fact that any 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." Already in my opening speech I referred to the judgment of the International Military Tribunal with reference thereto. It means that the law intends to say: The more excuse with an order is insufficient; it has, however, to be considered as regards the measure of punishment, whether or not somebody commits a crime on his own initiative or receive an order to that effect. Responsibility would be the greater, the higher one stands on the rungs of the ladder of the hierarchy of the State. The soldier who is order to take part in a firing squad will hardly be held responsible for the sentence of the court martial. Unlike par 52 of the Reich Penal Code or Par. 2 of the Austrian Penal Law, this passage of Art. II, 4 b, does not exclude the general extenuating and mitigating circumstances. It will, however be decisive whether or not somebody blindly obeyed the order or tried to evade it with all his power. For this reason the American Court in Dachau acquitted members of the guard of the concentration camp who volunteered for front-line service in order to get rid of an infamous job.
Professor Donnedieu de Favre, one of the main trials of this law, says: "If you act this way then in the sense of individualism, the presentation of the International Laws, it is charged with incrimination to point out the discipline which is necessary for the State. Such laws should only be used with precaution.
If nowadays, in the midst of peace one would say "Beiglboeck should have shot himself rather than going into a concentration camp and making sea water experiments then this is a very cheap banality. It was Himmler who reigned in 1944 and apart from personal prosecution there was also the so-called next of kin responsibility. Beiglboeck didn't only have the responsibility for himself alone but also for his wife and children.
Here I can only repeat what the American Judge Musmanno said in his dissenting vote in the trial of Field Marshal Milch (page 96): It never was our intention and it never was suggested that he (Milch) should have chosen a way which might have ended with the loss of his life."
The Prosecution alleges the commission of war crimes by the defendant. Though this question is of no importance to my client outside the scope of conspiracy, because war crimes can only be committed on nationals of the Allied nations, I would still like, in principle, to draw a short sketch of the problem.
The law of nations is a legal system between states up to the present day. It serves the balancing of interests in international relationships. Violations of the law of nations can only be committed by states towards other states.
Finally, the indictment speaks of crimes against humanity. The charter and the judgment of the International Tribunal confine these crimes to the period of the war and to their connection with the aggressive war, and in this point Control Council Law. No 10 obviously transgresses its own basis and powers. Control Council Law No. 10 states in its preamble: "In order to give effect to the terms of the Moscow Declaration of 30 October 1943 and the London Agreement of 8 August 1945, and the Charter issued pursuant thereto......in order to establish a uniform legal basis in Germany....."
Serious offenses against human dignity particularly cruelties and oppressions which cause general indignation and are usually organized from above according to plan and in great numbers, can therefore be regarded as crimes against humanity.
They can be committed both in war and in peace. It is however, questionable, who and which law is applicable to punish this offense in each individual case. According to the judgment of the International Military Tribunal in Nurnberg, the application of Control Council Law No. 10 seems to be excluded.
If we return to the experiments indicted and consider what is said above we have out of sheer respect for ourselves to exclude those activities, the aim of which was, as the prosecution alleges, not to cure but the extermination of human life. But the great majority of the experiments were evidently intended - this can't be seriously denied - to find new ways to cure diseases which hitherto had been a partinacious scourge of mankind. The success connected with the experiments did not only bring a chance of recovery to the individual patient, but also meant a step forward in medical art and therefore a service to humanity, and therefore, an act of humanity. By the enumeration of a long series of experiments of the same nature the defense has proved that the Allies themselves were busy with the same problems. He who carefully followed the trial will therefore state the fact that the point of gravity has been shifted from the experiments themselves to the question of the execution and particularly to the kind of experimental subjects. Therefore, the object of experiments on human beings steps into the foreground as the most important criterion for the judgment according to criminal law. If we therefore inquire whether or not these are crimes against humanity, we have to answer a further question, leaving out for the time being, narrower medically ethical points of view; how far is it legally decisive whether or not the experimental subjects are volunteers? Volunteer means to commit or to omit an act according to one's own will. The decision is up to the individual as an emanation of his freedom.
As long as mankind can remember, freedom was the goal of human hope, longing and desire, sometimes also a goal of human planning and activity.
But somewhere even freedom must have its limits. Emilion Bonaudi of the University of Perugia says in his book "Of the limits of the individual freedom. More than all it cannot be doubted that the limitations of individual liberty must be determined by the reasons of the society". It may be a democratic or an authoritarian state, the freedom of the individual finds its limits within the sphere of power of the state.
These limits will be drawn wider or narrower as the system of the state may be. Just now the commission for human rights of the United Nations is in session presided over by Mr. Eleanor Roosevelt. It is charged with forging the rights of man into the form of a law, which is to be accepted and ratified by all member states. The World Code is not only to define the rights of the individual, but also to limit the power of the state over the individual. What conclusion can we draw from that? In general, we have to refuse experiments on human subjects who are not volunteers, particularly on prisoners of war, the latter if only it goes counter to the clear standards of recognized international law. And still we will be permitted to discuss whether or not there are exceptions to this fundamental rule. The state which limits the freedom of the individual in order to make an orderly communal life possible has moreover the task of protecting the freedom of the individual. If this state should, however, find itself in a state of emergency, if it fights in a total war until the complete exhaustion of man and material for its very existance, then the limits of its power must be extended and in some cases different measures have to be applied than in peace. Before me I have tragic report: "Mission in the Fire of the Atom Bomb". And still the United States went this way in order to shorten the war considerably and prevent their own citizens from indescribable suffering. Now, I have submitted evidence that in the case of my client the experimental subjects were volunteers. The prosecution alleges in principle, that people can't volunteer in a concentration camp because the people were deprived of their liberty and were no longer able to freely determine their own will. But this is incorrect. For then it would not be permissible to carry out the numerous experiments which were mentioned by other defense counsels, in American penitentiaries and mental institutions without constituting crimes against humanity. There, too, the experiment subjects were not at liberty, in spite of volunteering.
The surroundings will always have a great influence on every determination of will and motives of the most heterogeneous nature (promise of freedom, pardon, improvement of food, etc.) will play a very important role.
I want to demonstrate this to a Military Tribunal by means of an example from military life. A Company Commander is given the order to take an enemy trench with an assault squadron. Since nobody volunteers for this duty, he chooses ten men. A younger man asks to be taken in the place of a selected married comrade. He is accepted. The entire assault squadron is killed. Here we have similar conditions. None of the soldiers were volunteers. Each one of them was under the compulsion of the permanent life danger in war, just even within this sphere of freedom of choice an act of voluntariness was possible.
As in count 15 of the indictment also the national criminal laws of those countries in which such crimes against humanity were committed are referred to, I shall at the end of my arguments briefly define the position of German criminal law applicable also for the Austrian Beiglboeck in his capacity of a Wehrmacht member, with regard to the question of experiments. Since no deaths resulted from the experiments, the laws concerning murder and manslaughter naturally are eliminated, and we are only concerned with the laws concerning bodily injury.
Paragraphs 223 and 229 of the German criminal code contain the laws to be consulted in connection with this case.