Every omission must be based on an "expected action". This expected action must also, however, be a "necessary action". Every necessary action is, of course, simultaneously an expected action, but not every expected action is simultaneously a necessary action.
The punishability of an ommission depends on two prerequisites whether it is to be punished depends on a duty to take action and on whether it can be proved that this action would have averted the forbidden consequence. The duty to take action can arise from a legal maxim; in particular, it must be a legal duty to avert a consequence, the proved purpose of which it is to justify criminal liability for the consequence. On the other hand, a mere moral duty does not justify any criminal liability.
duty to act could further arise as the result of the assumption of a special duty, perhaps the assumption of duties on the basis of a legal transaction or a contract. This possibility too is quite out of the question in this case, and the Prosecution has never advanced any facts which might admit of such an assumption.
A further basis for a duty to act would be possible perhaps from the law of Common usage in the sense of a duty based on previous action, but in the present case there is no question of this. Romberg, as has been shown, did not participate in the Rascher experiments either in the beginning or in their further course. Nor did he have any right to dispose of the chamber. Nor did he have any right of supervision of duty of supervision over the chamber. His assignment read to carry out "experiments for rescue from high altitudes", which he did. Nor could the Defendant Ruff be considered obligated from this point of view, since the chamber did not belong to the DVL but to the Medical Inspectorate of the Luftwaffe. Dr. Ruff and Dr. Romberg did not belong to the Luftwaffe, however, but Stabsarzt Dr. Rascher did. Thus, if either of the three had had any right of supervision over the chamber, then it was only Stabsarzt Dr. Rascher, never the civilians Dr. Ruff and Dr. Romberg.
The second condition for the criminality of an offense of omission is that it can be proved that the action demanded would have averted the forbidden consequence. The Prosecution has not brought this proof, either.
It must, rather, be assumed that according to the situation prevailing at the time, any attempt by Romberg to use force would have ended with his death and thus the forbidden consequence would not have been averted.
But in both respects, both in view of a duty to act as well as whether it can be proved that this action would have averted the forbidden consequence, the essential prerequisite is the possibility of undertaking the necessary action and the possibility of having some effect on the undesired consequence. For especially here the principle must prevail; "ultra posse nemo obligatur." Where there is no possibility of averting the consequence, there can be no talk of criminal liability for the consequence. Therefore, conviction for an offense of omission demands that the judge be convinced that there was a possibility of acting.
But this conviction can never be attained after the presentation of evidence. It has been established that a spontaneous action of Romberg's would have meant only an attack on Dr. Rascher. That is certain above all because Rascher obviously ignored Romberg's warnings, because he obviously did not want to conform with Romberg in this point.
I wish to state once again that in view of the over-all situation it was not possible for Romberg to save the experimental subject and thus prevent the awful results. Romberg was a civilian, unarmed, and was in the concentration camp as a non-member of the SS. Rascher was an officer in the Luftwaffe and an SS man. He carried a gun and claimed to be justified in his actions on Himmler's orders. I beg to ask Your Honors how Romberg could, at that moment, have saved the life of the experimental subject.
Military Tribunal II, in its judgment of the Milch case, has recognized the principle of "ultra posse neme obligatur" by saying that legally a man cannot be expected to act like a hero. Had Romberg at that moment assaulted Dr. Rascher, he would not have been a hero but a lunatic. If you cannot expect a man to be a hero, surely you must not expect him to do something out of desperation. There cannot be any doubt that Romberg, had he survived the assault, would not have left the concentration camp again. This may be seen from Rascher's whole attitude as well as from his personal relations to Himmler, of whose staff he was a member. As proved earlier, Romberg did act, and that to a considerable degree. He did not merely save the life of one or three inmates but that of probably a large number when he removed the low pressure chamber from the Dachau camp and kept it away from there. I would like to know whether those who now cast the first stone at Romberg would have acted equally courageously and sensibly at the time as Romberg has been proved to have done.
He has worked on the problem of rescue from high altitudes in a continuous series of experiments on himself in the low pressure and freezing chambers, and given his contributions to the further progress and security of aviation in a number of scientific publications and in unpublished reports on his research work. His scientific achievements and his personal work were recognized through his appointment as head of the department for high altitude research in the Institute (page 20 of original) for aviation medicine of the DVL, he being the youngest among the roughly 40 heads of institutes and departments of the DVL, which employed about 2000 German people.
Dr. Ruff, formerly the chief of my client, speaks about the personal and scientific qualities of my clients, and I draw attention here to pages 6655/56 of the German and pages 6560/61 of the English record, as well as to page 6721 of the German and page 6627 of the English record.
Romberg was and is not a climber or an ambitious man. During the war he did not work for his graduation or aim at publishing as much as possible. He regarded it as his duty, his experiments and research work which served as the security of air crews. That he did not spare his own person becomes clear not only from the affidavits submitted to me, but is also emphasized by all affidavits submitted on behalf of Dr. Ruff where in some cases he is mentioned by name and in some others included as a matter of course among the assistants and their contributions.
Romberg's cooperation becomes particularly clear from the affidavit given by Dr. Voss, also from the affidavit by Engineer Heinz Lesser. I should also like to have reference in this connection to the affidavit by Dr. Otto Gauer; in praising Romberg's attitude Dr. Gauer says:
"At a date later than the Dachau experiments mentioned by the indictment, experiments were carried out in the laboratories of Ruff, Romberg, and Gross which were made in order to clarify the important question of the combined effect of cold and lack of oxygen. In these experiments the experimental subjects were subjected to the lack of oxygen at an altitude of twelve kilometers only after having been exposed until an hour before to a temperature of minus 45 degrees C scantily dressed. Here the severe cold pain and shivering set in and the experimental subject was unable to sit and to write."
And Gauer adds:
"Since Ruff had connections in Dachau through the altitude experiments, it would have been easy for him to obtain concentration camp inmates for these particularly dangerous and extremely painful experiments."
The same must be true for Dr. Romberg. He even was requested by Himmler personally to carry out the cold experiments with Rascher. Romberg's refusal to do this, but rather to carry out these "particularly dangerous" and "extremely painful" experiments - as related by Gauer as experiments on himself, this must be considered a new proof of the high ethical concept of his profession which was Romberg's.
Furthermore, Romberg offered himself as an experimental subject not only in the framework of his own field of activities but naturally in all other experiments of the DLV.
Thus, it is not without the element of the tragic that it should be Romberg, whose only aim it had been throughout all his research work to save human lives by responsible, even often dangerous employment of his own person, that he now should be charged here "to have participated in the National Socialist system of extermination, motivated by an evil spirit under the guise of science".
The affidavits submitted by me certainly demonstrate unequivocally that National Socialism was not the motivating factor for the actions of Romberg. In all, his severe criticism and rejection of the system at the time is emphasized. The fact that one affidavit was furnished by a Jewish family, who were friends of Romberg and his family during the war, characterizes his point of view perhaps most clearly.
Even the prosecution witness Wolfgang Lutz expresses himself in the same sense as to the political attitude of Dr. Romberg. By itself there would not exist any necessity to discuss so much the political position of my client if not the whole trial due to the wording of the indictment and by the publicity in radio and press had been tied up so heavily with politics.
It is absolutely obvious that the experiments carried out by Romberg in no way were the result of a National Socialist point of view. What drove him to undertake all his other work and these experiments was, besides his chosen task of airplane research, the urge to do his duty in a grave war and to help the population of Germany in its defense against a harsh aerial war.
It is true that this is perhaps a political motive, too, but not a National Socialist motive for that reason and not one which deserves such public defamation.
Romberg was given a chance to prove himself personally and in regard to his character, a chance which is granted to almost everyone during one's lifetime, when an unfortunate fate brought him in contact, for the purpose of working, with a man of Rascher's type for the first time. At the beginning of the experiments Romberg had to consider Rascher as an innocent physician and officer of the Luftwaffe because he (Rascher) was introduced to him (Romberg) by many older and more experienced men than he. Already soon thereafter, Romberg changed his opinion of Rascher and already in 1943 he described him to Professor Werner Knothe as a bad man and a pathological liar. That is Document 6 in the Document Book Romberg.
I believe that in the course of these proceedings it has been proved that Romberg did not fail in this test, one of the most severe ever faced by a human being.
Romberg is a quiet man and a reserved one, perhaps somewhat too much so; loud and boisterous talk does not agree with him, and thus he did at the time, without many words, what he considered his duty and what was right.
As soon as he realized that Rascher, on Himmler's orders, was doing things he could not agree to, he discontinued cooperation with him and never re-assumed it.
In Dachau, entirely on his own, supported only by his chief, Dr. Ruff, to whom he was tied closely in comradely collaboration, and covered from a far distance by Hippke, Romberg succeeded with the skill of a diplomat, not only to disassociate himself from Rascher - that might have been relatively easy by pretending illness.
But he did not stop there. He went on and got the low pressure chamber out of Dachau against the expressed, will of Rascher and Himmler.
By doing so, he not only prevented further experiments but he also, by stopping the series of experiments, saved for science the most important results of the experiments and thus gave meaning to the employment of the subjects and himself. For there can be no doubt that if he had only stepped out Rascher would have continued his experimentation in grand style and for a long time, and on the other hand had had no useful report on "Rescue from High Altitudes".
As soon as the necessary completion of the research report was performed, Romberg refused further collaboration with Rascher and above all he cleverly avoided the participation in the cold experiments ordered by Himmler.
By doing so, he faced dangers which today are about to be forgotten and which people from more happy lands can hardly imagine. The former Field Marshal Milch was acquitted under the charge concerning the altitude experiments. Generalarzt Hippke was not even indicted. Should Romberg, last link in the chain, be sentenced for the mis-deeds of Rascher?
Justice demands the acquittal of Romberg.
THE PRESIDENT: The Tribunal will now be in recess until 9:30 o'clock tomorrow morning.
THE MARSHAL: The Tribunal will be in recess until 9:30 o'clock tomorrow morning.
(The Tribunal adjourned until 0930 hours, 18 July 1947.)
Court. 1.
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 1947, 0930 Justice Beals presiding.
THE MARSHALL: Persons in the court room will please find their seats.
The Honorable, the Judges of Military Tribunal 1.
Military Tribunal 1 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, will 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 the presence of all the defendants in court.
The Tribunal will now hear from counsel for the defendant Weltz.
DR. SEIGFREID WILLE: (Counsel for the defendant Dr. August Weltz): Mr. President, Your Honors, my written expose re the case against August Weltz will assume a changed form by appropriate cuts, without, I hope, becoming unconnected. My aim is to present to the Tribunal those parts of my speech which, according to my understanding, seem to be the most important and I wish to do so without haste nor hurry.
I want to achieve to read my statements without hurry to the Tribunal. My written text I shall keep and use as my documentary material. Until today I have not received the closing brief of the prosecution and I should like to say here I shall reply to it at a later stage.
Paragraph 1 of my document:
The handling of the Weltz case on the part of the prosecutor.
It is part of the peculiarities of this trial - unequalled in kind, and scope by any other in legal history that the means of attack and defense and thereby the possibility of finding justice are distributed unequally. This docs not imply a reproach against the court or the prosecution. This is the result of the proceeding historical development. After the collapse of the German front the official German archives were placed in safety by the armed power for the purpose of prosecution. The comprehensive documentary material with which, almost exclusively, this trial is conducted, fell thus to the prosecution.
The inequality between prosecution and defense resulting therefrom was obvious to everyone who was able to follow the course of the trials. It became apparent particularly in the defense of the defendant Professor WELTZ, where it was necessary to establish definite dates, conversations and actions, which happened about 5-6 years ago and of the subsequent importance of which the participants were nut aware at that time.
I, as defense counsel of Professor WELTZ was therefore not in the position to present to the prosecutor not even a single document belonging to the property of the defendant - on the contrary I was forced to contribute to the invalidation of the incriminating factors by taking recourse to the documents of the prosecutor himself and by affidavits collected with great effort.
Not only was it impossible for me to search in the archives for exonerating material. It was just as impossible to produce exonerating documents the existence of which was well-known to me. I give the following examples:
The letter of HIMMLER of 24 July 1941, mentioned in document No. 263, exhibit No. 47, page 59 of the German and page 56 of the English document book.
The letter of the same of autumn 1941, which RASCHER, in the Munich discussion, presented to WELTZ, RUFF and ROMBERG.
For the first mentioned let or it is probable, for the second one certain that it contains a remark of HIMMLER concerning the voluntariness of the experimental subjects, which would have been most valuable.
As is known the whole private correspondence of RASCHER was also confiscated. The prosecutor would certainly have submitted documents from this correspondence, if it had contained incriminating-material. In view of the decidedly bad relations between RASCHER and WELTZ, which was the natural consequence of RASCHER's removal from the institute, it is difficult to imagine that this correspondence should not contain numerous documents exonerating for WELTZ, However, it was not possible for me to get access to this material for the trial.
I am making these introductory remarks before passing on to the defense because I am convinced that the court on duly weighing the matter will consider accordingly the pros and cons of this unequal distribution of strength.
Weltz has been charged with taking part in the altitude and cooling experiments. In my document, I deal with the mate of the legal rights and I come to conditions and to doubt about the Control Council Law. It is sufficient to point out that a direct responsibility of the single defendant is not here concerned. This is on page 3.
I also will do without discussing the term "Crimes against Humanity" and without detailed enquiries into the legal character of the high altitude experiments RuffWeltz, which beyond doubt was permissible and unobjectionable, just as Rascher's experiment on his own person was criminal. This excludes an active participation of Weltz from the charges of the indictment, so that there remains nothing but the charge of abetting. This is a term which I chose myself for certain vague terms of the Control Council Law.
This rather sweeping statement leads me to Number V of my Trial Brief which deals with the first development of the relationship between Weltz and Rascher in order to prove that it was not Weltz himself who approached this favorite of Himmler's. Here also, I can be rather short because it is beyond doubt that it was not Weltz who delivered the lecture on the apes and that he was not the man of the confidential conversation to whom Rascher made the proposal to experiment on professional criminals.
Number VI, equally, this is the conversation in the Preysing Palace, is no longer a decisive subject. I think, it needs no more proof that Weltz was not a man of Rascher's character, and was not in favor of criminal experiments and just this fact was to be proved by the conversation with Hippke.
I shall come to further explanations which are of important character from pages in my document book, which deal with the relationship of Weltz and Rascher. This describes the personal relationship, the relationship which the prosecution deal with, the relations between Rascher and Weltz.
The reason for Rascher's assignment to Waltz's office Rascher's independent experiments were not abetted by Weltz.
I first want to point out that Weltz did not personally order Rascher's assignment to his institute. This was proved by the affidavits of Wendt and Kottenhoff. Weltz had no interest whatsoever, neither in Rascher's person nor in his experiments. For this I shall give the following reasons:
The subjects suggested by Rascher for the experiments were refused by Weltz. The subject "Slow ascent to high altitudes" first suggested by Rascher had been dealt with scientifically by Weltz already at an earlier period. He then had discovered in animal experiments the so-called "adaptation effect". Therefore further experiments were not of particular impotence in view of the phase of the war at that time and the developed technique of the fighter planes. That was the reason, why Weltz objected to this suggestion.
But he also objected to Rascher's second suggestion of conducting freezing experiments. Prof. Weltz certainly was the first who recognized the cold problem with regard to the Luftwaffe. However, he objected to human experiments about the cold problem in this case. He did not consider them as being important, being in a position of getting the necessary result through animal experiments.
As he did not know Rascher personally, he had no reason to call him to his institute.
Therefore the assumption that Weltz himself had ordered Rascher's assignment to his institute cannot be substantiated. To this extent therefore one cannot speak of his abetting Rascher.
The fact, how Weltz treated Rascher and his suggestions still more contradicts the assumption that he wanted to push forward Himmler's protege. The facts prove the contrary.
Here I am referring to an incident that happened later. However in consideration of the connection with the abetting problem, I first want to deal with Rascher's removal from Weltz' institute.
Because of Weltz' refusal of Rascher's suggestions for experiments, Rascher had nothing to do in his institute. Ho therefore continued with his former activity in Schongau, where ho had been stationed before. Since he was seen in Munich, without reporting to Weltz, Prof. Weltz ordered him to report twice weekly at his institute, he further categorically demanded that Rascher reported him on the situation at Dachau. It is known, how Rascher resisted to this order. When reporting for the third and last time in Weltz' institute, Rascher showed Weltz the Himmler telegram ordering secrecy even towards Weltz. This was sufficient for Weltz to apply for his immediate dismissal.
How can the Prosecution in view of this situation speak if Weltz abetting Rascher and his intentions? What advantage would it have been for Weltz? At that time he was one of the best reputed X-ray specialists, whose successes were merely and solely due to his personal achievements. Why should he in contradiction to his have had the character intention to make any profit from the scientific results of one of his assistants, who had but little experience? Frau Nini Rascher however, in Doc. No. 265 and No. 264 of the Reichsfuehrung-SS tried to misrepresent the facts this way, and the prosecution obviously accepted her statements. The incorrectness of this is obvious.
Then I come to paragraph 8 of my plea, Lutz as a prosecution witness I shall not deal with here now. Lutz was a prosecution witness of importance.
No. 9 of my document, I would like to substitute for the following explanations, which I have already submitted to the translators.
Considering the evidence which clarified the facts I am content with stating the following facts in my speech about the origin and the agreement in Adlerhof:
1. Weltz: meeting in Adlershof was neither planned nor prepared.
2. The experimental series was not criminal.
3. Before the beginning of his first collaboration Dr. Rascher's person gave no cause for suspicion, neither personally nor from the medical-ethical point of view.
4. The experiments were approved by the highest authority of the Luftwaffe. Hippke had given his express consent.
Therefore, the conversation in Adlershof is a serious agreement between two physicians of the Luftwaffe about scientific collaboration. The gist has that the two institutes were to be regarded as sponsors. Ruff was to be represented by Romberg who, as far as he was concerned, was to have the immediate direction in Dachau. Since he was a collaborator of long standing one could give him this task with a good conscience.
I now come to Paragraph X:
Penal-juridicial conclusions from the Adlershof agreement. Considering this agreement from the point of criminal responsibility of its participants, we arrive at the following result: Professor Weltz and Dr. Ruff arc the originators of this agreement. They were the first to draft it and to agree on it by mutually talking and thinking it over. Then they called in those persons who were mainly to be entrusted with the carrying out of the experiments and with those, viz.
Romberg and Rascher, they discussed the details and chocked over them. Then they informed the persons in authority in Munich and Dachau, which was Schnitzler and Piorkowski, about the details of the experiments and made sure that the experiments could be conducted under the agreed conditions. This was all the more to be expected since Piorkowski had received the clear order of Himmler to obey these conditions, through Schnitzler.
Therefore no reason can be found anywhere to assume that the two of them had intended to conduct impermissible criminal experiments. This was already set forth before. Just as little it could be their intentions to let Romberg and Rascher make impermissible or criminal experiments. For this reason they familiarized Rascher during the Munich conference with the program of the experiments.
Equally we have to deny the question whether or not Weltz can be held responsible for the criminal experiments conducted by Rascher outside the experimental program "Height" on his own initiative or by order of Himmler. Of the facts stated in Article II, Number 2, of Control Council Law No. 10 only the following can be applied: c) took a consenting part therein), d) (connected with plans or enterprises involving its commission). Only intentional, but not negligent activities arc mentioned here; this becomes clear from he whole exceptional position which the Control Councel Law occupies in the legal life of the occupied territory. The latter fact excludes any other forms of participation, either of German of foreign Criminal law, as a specialist. A criminal responsibility of Weltz and Ruff is out of the question, because their participation and their suggestions extended only to the permissible experiments and not to the experiments outside the series.
Apart from that the Prosecution seems to raise the question whether or not Ruff or Weltz could possibly prevent Rascher's experiments from being carried out at all, either before or after they started. Of which possibilities the Prosecution thinks is not stated clearly. The nature of the questions, however, and occasional marginal remarks in their statement give us a hint. Quite obviously the Prosecution thinks of an offence by ommission, committed by the ommission of possible defensive acts.
As regards Professor Weltz only the following questions can be discussed in this connection:
1. How could Professor Weltz have prevented the getting under way of these criminal experiments of Dr. Rascher's? The Prosecution seems to think of the possibility of preventing them in some form.
2. What could Professor Weltz have done after the beginning of the experiments in order to prevent their further spreading?
In this latter respect, I may make the remark that an intervention against the continuation and the spreading of the experiments on the part of Professor Weltz was outside the reach of possibility, alone because he had no knowledge of the beginning and the conduct of the experiments, presumably not, because Rascher had left his command.
The following paragraph is devoted to throw light on the question; here I am going to toll that Prof. Weltz did everything possible to obtain some knowledge of the experiments without, however, to succeed and took in some knowledge about the experimental subjects without succeeding.
Weltz fights for the supervision of Rascher's experiments.
It is Point 11. The Prosecution did not make it clear how Weltz could have prevented Rascher's own experiments. But from various remarks we can conclude again and again that the Prosecution always starts from the idea which we have today of Rascher, Himmler and the concentration camps. In contrast to this, the defense must point out that this knowledge was lacking at that time. Waltz didn't have it, just it, as little as the groat majority of the Germans did not have it. By virtue of which reasons should Weltz have presumed that Rascher would turn a criminal at some later date? When the preliminary discussions about the Ruff-Romberg experiments were still on, Rascher had not committed a crime at all, as far as we know. Also, no other persons had conducted any criminal experiments in Dachau before that time. For obvious reasons Weltz regarded the close relations to the Reich Fuehrer SS, of which Rascher boasted, as exaggerated pranks of an ambitious assistant. Weltz could in no way expect or foresee that Himmler would give the order to Rascher to start a series of criminal experiments of his own. Weltz only know that experiments were to be carried out in Dachau along the lines of the unobjectionable Adlershof programm. These were to take place under the direction of Ruff and Romberg. Both were from the scientific point of view eminent experts, and from the point of view of character they had the best reputation. How, under those circumstances, could Weltz have had an inkling that Rascher would secretly embark on a second, criminal series of experiments?
Since no period of time was set for the beginning of the experiments, Weltz did not at first notice that Rascher was not in Munich. Ps soon as Weltz learned, however, that Rascher had been seen in Munich, he called him in twice a week to report. Rascher eliminated Weltz by presenting the telegram from Himmler. This was a complete surprise to Weltz, since Rascher had earlier forced himself upon him and laid great value on his collaboration. As is known, Weltz immediately drew the official conclusions from this situation, he had Rascher's assignment to his institute ended and sent a report about this to the Medical Inspectorate. This action was in every respect correct and expedient. This created clear conditions. Rascher was then again under Air Gau Medical Department VII, which thus had the supervisory duty. If today, with knowledge of the further developments, one examines Weltz's action, one can find no better way. Even the Prosecution was not able to tell Weltz of a better way which he could have taken.
XII When was Rascher's assignment to Prof.
Weltz ended?
Rascher doubtless left the institute at the beginning of March 1942, before the beginning of the experiments proper. The Prosecution has attempted, relying on Doc. NO 264 and NO 1359, to set the time he left at the beginning of May 1942 or even later, in order thus to ascribe to Weltz the responsibility for Rascher's own experiments.
To that I can answer the following:
The following considerations show that Rascher's assignment to the Weltz institute ended at the beginning of March 1942:
1. The experiments in Dachau were suspended from about 22 February till 10 March 1942 in order to exclude Weltz. This can be seen from Document N00263, Mrs. Nini Rascher's letter, and from Ruff's and Romberg's testimony. It is just about out of the question that the experiments were again resumed before Rascher and Schnitzler were certain that they had eliminated Weltz' influence.
2. Himmler's telegram which Rascher showed to Weltz is obviously the answer to Schnitzler's question in Document NO-263. Rascher had also shown this telegram to Romberg at an earlier stage in the experiments and it is hardly conceivable that for two whole months Rascher made no use of this telegram.
However, the telegram led immediately, after Rascher had submitted it to Weltz, to the conclusion of Rascher's assignment at the Institute for Aviation Medicine.
3. It can be seen for certain from Document NO-318 that on 16 March 1942 Rascher was no longer at Weltz' Institute. From 16 March until 16 April 1942 he had been transferred directly to Dachau from the Luftgau. The probative value of this document is not violated by the fact that Rascher called his office in Dachau by an incorrect title. From the official military point of view Rascher, at any rate, belonged after 16 March 1942 no longer to Weltz' Institute but to the Luftgau Medical Department VII. For practical purposes it was of no consequence for the Luftgau Medical Department what name Rascher gave to his office when he was assigned to Dachau.
4. From Document NO-296 it can be seen that Hippke had told the Luftgau to extend Rascher's assignment at Dachau by one month. The fact that Hippke gave these instructions to the Luftgau and not to Weltz himself also shows unmistakably that at that time, on 27 April 1942, there was no longer any official connection between Weltz and Rascher. This letter at the same time also refutes the Prosecution's assumption that Weltz had been assigned for the freezing experiments in Dachau because he was still Rascher's superior. Hippke's letter proves the contrary. He must have known that Rascher was no longer with Weltz.
5. That Rascher's assignment to Dachau was a different assignment from his assignment to Weltz' Institute can further be seen from the fact that Rascher's assignments to Dachau were always limited to one month whereas the original assignment to Weltz' Institute was unlimited.
There is, therefore, complete documentary proof that Rascher, at least after 16 March 1942, no longer belonged to Weltz' Institute. Only two file notes stand in opposition to this proof; namely, Document NO-264 and NO-1359. Both file notes originate from the Rascher couple and were set down simultaneously at two different places.
File notes as such do not possess the probative value of the above-mentioned official communications; and one must be really distrustful if such notes originate from the Rascher couple. Among the numerous letters from the Rascher couple which the Prosecution has nut in evidence, there is hardly one which does not contain gross lies and, distortions of the truth. In his numerous letters, reports and notes, Rascher was always pursuing specific ends, and was willing to use any means. He was particularly successful in camouflaging his real official connections, in order to play one office against another. I may simply mention here his negotiations with Grawitz and Gebhardt. One can therefore in this case also readily assume that Rascher was attempting to have his Dachau assignment extended by asserting that Weltz was still trying to eliminate him from Dachau or to hamper him in his work.
I, therefore, maintain that the two file notes were intentionally untrue assertions by the Rascher couple, which were made for a very specific purpose. Rascher falsified the date of events which had in reality taken place two months previously.
During the cross examination the Prosecution also confronted Weltz with a few alleged statements by a certain Miss Frick. These statements were alleged to prove that in April Rascher was still at Weltz' Institute. However, since the Prosecution produced no proof of this, we need not go into the matter any further. Miss Frick was employed at the Weltz Institute before 15 April 1942 and the date of 15 April 1942 which the Prosecution has stressed was only the date when she was finally put on the payroll.
Under these circumstances I need point out only briefly what legal form these matters would take if one assumed that the file notes were true. In this case also the fact would be that Weltz was not informed of the Dachau experiments, although he repeatedly begged for reports. Under no circumstances would Weltz have known that Rascher, in addition to the Ruff-Romberg experiments, was carrying on an independent experimental series of his own on Himmler's orders.