Mr. President! Your Honors!
The Defendant GENZKEN was Chief of the Medical Service of the Waffen SS from the time it was organized. He was in change of all the medical care of the troops of the Waffen SS, that is to say medical, dental, pharmaceutical, and hygienic care of the four original and later 36 divisions of the Waffen SS. In his capacity as Chief of the medical Service of the Waffen SS he had no scientific research problems to solve, never actually raised such problems himself nor ordered their execution. Scientific research and planning were not, as the evidence will clearly show, in the hands of the Defendant GENZKEN, but exclusively in the hands of the Reich Physician SS and Police Dr. GRAWITZ. The sole and exclusive task of the Defendant GENZKEN was the medical care of the fighting units of the Waffen SS at the front and their reserves at home. At the end of the war the Waffen SS comprised about 900,000 men, the medical personnel alone amounted to over 40,000 persons at the end of 1944. GENZKEN alone was responsible for the professional direction and personal management of this personnel, the 61 hospitals and the medical units, and finally for the medical care of the entire Waffen SS. It is clear that this huge and extensive task, led and directed by him alone, left him no time to take even a superficial, not to mention a detailed interest in any scientific research or planning.
In the presented of my evidence I shall first, by examining the defendant as well us the witnesses whom I have called, present to the Tribunal evidence of GENZEN's non-participation in the alleged conspiracy of the defendant. In particular, I shall prove that GENZKEN was in a very tense relationship with GRAWITZ as well as HIMMLER, that he had considerable controversies with both, and that consequently both of them considered him "persona ingrata et incerta", and so that for this reason alone it must seem improbable that GRAWITZ and HIMMLER would initiate him into the experiments an concentration camp inmates which those two planned and ordered, or would even inform him of these experiments. If even the originators of these experiments did not want the Defendant GENZKEN to be informed about their experiments, the executing agents could certainly not have done so. I shall furthermore prove, through the defendant, that with one single exception he did not discuss the experiments with which he is charged with any of his co-defendants or with other persons, and that he did not request or receive any scientific reports or carry on any correspondence about these experiments.
Aside from this general point of view of conspiracy and membership in the SS, GENZKEN is charged with special responsibility for alleged participation in the sulfonamide, typhus, phosphorus, and poison experiments. He is not charged with active participation in these experiments. It is only asserted that, in spite of allegedly complete knowledge, above all of the typhus experiments; he did not do anything against them. Dr. DING; the director of the Section for Typhus and Virus Research in the Buchenwald concentration camp, and the latter's superior, the co-defendant MRUGOWSKY, are alleged to have been his subordinates. It is asserted that GENZKEN carried on continuous correspondence with DING and was therefore accurately informed about the typhus experiments; also that he consciously tolerated and promoted the sulfonamide, phosphorus, and poison experiments. The Prosecution attempted to prove its assertions regarding participation in the typhus experiments by submitting affidavits of the co-defendants HOVEN and MRUGOWSKY, by submitting the DING diary, and through the witness Dr. KOGON I shall on the other hand bring proof, by examining the defendant and through defense witnesses, that no such criminal responsibility of GENZKEN can be assumed. It will, in particular, appear from the evidence that GENZKEN did not suggest, tolerate, or know any details about either the establishment of the research institute or the execution of experiments on human beings. The evidence will show that Reich Physician GRAWITZ ordered the experiments without any previous or subsequent participation of the Defendant GENZKEN!
It is true that GENZKEN know Dr. DING. He did not, however, order Dr. DING's assignment to Buchenwald, and he never requested scientific reports from him or received such reports unsolicited; he never accented DING's occasional invitation to visit him in Buchenwald.
What GENZKEN know of Buchenwald was merely the fact that a station existed for the production of the typhus vaccine which was urgently needed by the units or the Waffen SS, and that from about the Spring of 1943 approximately 30,000 doses of vaccine were to be produced monthly.
He never learned anything about deliberate causing of infections, series of experiments, or deaths running into several digits, nor has the Prosecution been able to present any conclusive evidence to this effect. Whether and to what extent the purely formal relationship of subordination of the co-defendant MRUGOWSKY and the deceased Dr. DING to GENZKEN incriminates the latter in the sense of being criminally punishable will also be clarified in the course of the presentation of evidence.
As for the sulfonamide experiments, the Prosecution believed that it could deduce criminal participation of the defendant by proving that the bacteria cultures used for this purpose in Ravensbrueck and even the wood and glass particles needed for the artificial contamination of the wounds were delevered by the Hygienic Institute of the Waffen SS.
I shall prove through defense witnesses that the execution of these sulfonamide experiments was no more on the field of work of the Medical Office of the Waffen SS than the typhus experiments, the question of whether the experiments are punishable remains open. Moreover I shall prove that nothing was known about these experiments in the Medical Office of the Waffen SS either to the Defendant Genzken in particular knew nothing about them. Whether, beyond that, the shipment of gangrene cultures, etc., from the Hygienic Institute of the Waffen SS to the concentration camp Ravensbrueck in itself constitutes punishable action of the defendant Genzken will also be cleared up in the course of my presentation of evidence. Moreover, the Prosecution has not been able to present any evidence here, either, to the effect that Genzken himself had anything to do with the delivery of the cultures.
The Prosecution, further to support its charges against Genzken, refers to the East meeting at the Military Medical Academy in Berlin in May 1943 and in this connection presented an affidavit by the co-defendant Fischer stating that Genzken was present at this meeting and heard Fischer's report on sulfonamide experiments.
Fischer is mistaken. He will not only correct this testimony in this respect himself, but, moreover, the defendant and witnesses will prove that Genzken did not hear Fischer's report. Whether or not the conclusions drawn by the Prosecution from participation in this meeting are at all pertinent from a legal point of view or not, these arguments do not apply to the Defendant Genzken because he did not participate in the meeting.
Finally, as to counts 6 K and 6 L of the indictment, namely poison experiments by administering poisoned food, etc., and experiments with phosphorus incendiary bombs, I am completely at a loss to see how the defendant could have had anything to do with these experiments, which took place in the concentration came Buchenwald beginning in the late fall of 1913.
It has already been established and will be emphasized once more during the presentation of evidence that from 1 September 1913 the Hygienic Institute was no longer under the defendant Genzken, but under the Reich Physician SS Grawitz. The same is true of the subordination of the co-defendant Mrugowsky. The Prosecution's contention that Mrugowsky, whom the Prosecution attempts to make primarily responsible for these experiments, was Genzken's subordinate is incorrect in this respect. For these experiments took place at a time when the Hygienic Institute under Mrugowsky had already been taken away from the defendant Genzken.
Nor did Genzken have any knowledge of these experiments; he learned of them only through the Indictment. This will be shown unequivocally by the evidence.
The evidence in the Genzken case will show that it was not the duty of the defendant to conduct scientific research or experiments on prisoners, but only to give medical care to the troops of the Waffen SS.
The case for the Prosecution may at first give the impression that Genzken, at least by tacit toleration, participated in experiments. The case for the Defense, on the other hand, will show that is not so; it will show that the Defendant neither ordered such experiments nor tolerated them, nor knew anything about the methods used in such experiments, but that he worked only as a physician, seller, and organizer in the medical service of the Waffen SS.
THE PRESIDENT: The Tribunal will now be in recess for a few minutes.
(A recess was taken to 1515)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: Counsel for Defendants Gebhardt, Oberheuser and Fischer may proceed.
DR. SEIDL: For the Defendants Dr. Karl Gebhardt, Dr. Herta Oberheuser and Dr. Fritz Fischer.
Mr. President, Your Honors: The experiments carried out on behalf of the German Wehrmacht represent in the indictment a separate group which has nothing to do with the other actions forming the grounds of the indictment. Although it may be true that the individual experiments differ considerably in method, and scientific result, and consequences, one point is common to all of them: they were brought about by the necessities of the war, and their results were to help the hard-fighting armies and the nation, which was involved in a life and death struggle.
The defendants represented by me are accused of special responsibility for all or some of these experiments. In view of that, I shall deal only with that part of tne indictment and testimony, and shall pay no attention to the other points of the indictment.
Nevertheless it seems necessary to begin with a few fundamental remarks with respect to the statement of the Chief Prosecutor.
The prosecution emphasized that tne Tribunal has a twofold responsibility in this case. On the one hand the defendants must have a fair trial and a just sentence, which responsibility, however, is borne by every regular court. But also, it was stated -- and this is much more important -- the incredible facts and ideas and motives must be established which moved these defendants. The insane and vicious doctrines of National Socialism have to be brought to light; otherwise there is the danger of a repetition of such misdeeds, which could not be survived by the civilized world.
There can be no doubt that this intention is a source of considerable danger for an objective and just verdict. The purpose of all criminal proceedings is the discovery of the material truth. The first prerequisite for the discovery of tne truth in a court trial is the impartial establishment of the objective facts.
This includes all the circumstances, which are in direct connection with the deed itself. It is necessary to establish these objective facts to solve the problem of the illegality of the action and the guilt of the defendants, and to apply the law.
It goes without saying that the motives that led to the actions of the defendants must also be thoroughly examined. The defense too is particularly interested in clearing up these facts.
It seems, however, superfluous, and imperils the finding of a just verdict, to include as one of the points of the trial the general political and philosophical principles, which allegedly had the actions of the defendants as their consequence. In this trial we cannot place the political and philosophical principles independently beside or above the accused persons.
The object of the trial is specific actions and not the examination of the question whether a political or philosophical conviction might generally be apt to result in criminal actions or in a certain type of crime.
There is all the more reason to point to this peril since in another trial, which dealt with similar problems, the tribunal apparently did not limit itself to the ascertaining of the facts which formed the basis for the indictment and the legal guilt of the accused, but in addition passed judgment also as basis for the verdict. I refer to the review of proceedings of the General Military Court at Dachau vs. Schilling et.al. (Document NO856), which the prosecution submitted as Exhibit No. 125 in the course of the testimony on the malaria experiments and where it says literally in Paragraph XIV:
"In many respects the accused Schilling was the most reprehensible. He voluntarily came to Dachau fully cognizant of the nature of the work he intended to perform. Being the educated and learned person that he was, Schilling undoubtedly must have realized the manner in which his work suited the needs of the Nazis. Although his personal motives may have stemmed from the desire to aid humanity, he permitted himself to utilize Nazi methods in contrast to other eminent German artists and scientists who either fled or refused to make themselves a part of the Nazi system."
I believe it is generally accepted that the value or truth of a philosophic system or a specific "Weltanschauung" cannot be ruled on by a court of law. Whatever our opinion may be of the value of the National Socialistic theories, there can be no doubt that legal proceeding can no more pass judgment on the value of this philosophic and political program than it can on the value and truth of historical materialism or any similar doctrine. A legal proceeding can only concern itself with the investigation of concrete acts and with the application of the law to these acts. No vital importance can be attached to National Socialist ideology in the solution of the problem whether or not a specific act or failure to act on the part of these defendants is illegal and punishable and hence of the nature of a crime.
The introduction of philosophic and political principles in a criminal proceeding is always a threat to the finding of factual truth and to the passing of a just verdict - a threat to which no tribunal should expose itself without compelling cause.
There is likewise just as little reason to examine in this trial fundamental problems of medical ethics. Opinion will actually differ only very little here. The pledge of Hippocrates, "primum non nocere", is a fundamental part of any medical activity, and no arguments on the principle are necessary. The problem of this trial is not whether the physician, according to the viewpoint of his profession, is justified in carrying out experiments on living people, and if so, to what extent. The problem is rather: does the law, with regard to specific emergencies caused by the war mention special extenuating circumstances which, as an exception, exempt an other wise forbidden operation from punishment. This, however is not a problem of medical ethics but solely a legal problem. This Question will have to be discussed more thoroughly after all the evidence has been presented.
It would be well also to call attention now to a third peril which could, under certain circumstances, jeopardize the finding of the factual truth with respect to the defendants, and that is the only problem with which the present proceeding is concerned - and the ascertaining of the guilt of the defendants. I am referring to the conditions in the concentration camps.
It is true that the experiments were carried out almost exclusively in concentration camps. Evidence regarding these camps has already been submitted in the proceedings before the International Military Tribunal. In this connection I refer mainly to the testimony of the witness Dr. Morgen (page 14846 of the German transcript). Documents were also submitted to this court which among other things describe the general conditions in these camps. Witnesses were also heard on this subject. The indictment does not assert that the defendants are responsible for the conditions in these camps. Nevertheless the danger cannot be denied that the impression of the conditions in these camps could only too easily affect the ascertaining and evaluation of the guilt of these defendants.
This is another reason for limiting the subject of this court examination to the facts for which the defendants are made accountable in the indictment. The general conditions in the concentration camps were entirely outside their sphere of authority. They were the responsibility of agencies which had no organizational connection with the Wehrmacht or the Medical Service of the Waffen SS.
At the end of the war the defendant Gebhardt had the rank of Major General of the Waffen SS in the Medical Service of the Waffen SS. After 1 September 1943 he was chief clinician of the Waffen SS. The indictment accuses him of special responsibility in the carrying out of the medical experiments alleged by the prosecution.
In several of these experiments the prosecution was not able to present documents or witnesses that could prove a special responsibility of the defendant Gebhardt with regard to these experiments. I shall discuss the resulting legal problems, particularly with respect to Point I of the indictment, in my summing up after the hearing of the testimony.
In other experiments the prosecution could submit several documents which show at least that the defendant had an organizational or other connection with the experiments. In part the documents themselves show that the defendant Gebhardt learned of these experiments only after their completion. From other documents it is obvious that the intended experiments were not carried out at all that the planned experiments came to a standstill at an innocent preparatory stage. All the resulting legal problems I shall also discuss in my summing up.
The essential point of the accusations against the defendants Gebhardt and Fischer are the experiments which were made to test the effectiveness of the sulfa drugs. The defendants do not deny having carried out these experiments themselves. In doing so the defendant Fischer acted on orders of his superior Gebhardt. I shall discuss later the part which the defendant Oberhauser had in these experiments.
It can of course not be my task to show in detail at the present stage of the proceedings; the reasons which made these experiments necessary. Nevertheless a few indications seem to be pertinent at this time.
The sulfa drugs are a German discovery and were introduced into therapeutics; along with Protosil, in 1932. This was preceded by nine years of evolutionary research by the German scientist Domagh. The success of the therapy was demonstrated by bacteriological considerations and proofs. The diseases were classified according to their type of virus; end the therapeutic possibilities were judged from this viewpoint. It appeared that diseases caused by an infection through streptococcus; staphilococcus, meningococcus, pneumococcus, and gonococcus offered the best prospects for cure. This was the opinion of the German military physicians at the beginning of the war in 1939.
Although a final clarification of the value of the sulfa drugs had not yet been established, especially with regard to wound infections caused by streptococcus and staphylococcus or by the virus of gas gangrene - it was nevertheless clear that these drugs were a very considerable help in the battle against wound infection. The experiences during the first war years seemed to confirm absolutely the correctness of this opinion. These favorable results led to the publication of many treatises in medical literature, and the publications of professor Schreus and his disciples found special attention, they asserted the absolute effectiveness of the sulfa drugs against the abovementioned viruses as wound infectors and against gas gangrene.
Others, however, warned against overrating the sulfa drugs in the treatment of wound infection. Until 1941, nine years of clinical experience and bacteriological research in vitro had thus not sufficed to arrive at a uniform opinion on the value of a group of drugs with which the entire medical profession occupied itself intensively in research and practice.
Though during the first two years of the war the surgical installations of the field army and the chemico-therapy that was coming into use had been sufficient to meet all demands, tne experiences of the 1941/42 winter period in Russia, which saw tne German armies at tne gates of Moscow, were to bring up again tne discussion of the efficacy of the sulfa drugs as a remedy for wound infections. It had appeared that even three years of war medical experience had not been able to clarify this question fully. But it had also appeared that tne fate of hundreds of thousands of injured soldiers might depend on the right and timely solution of this question. The situation was becoming all tne more difficult as there was no hope of solving this question in a short time through clinical observation in army hospitals. For, under the war conditions at the front, the number of unknown factors became many times higher than in peacetime. And the fact that in the meantime a new sulfa preparation, Ultraseptyl, whose efficacy some people estimated very highly, had been developed, complicated the problem still more.
The final clarification of the efficacy of the sulfa drugs for wound infections had thus become a military-surgical and chemico-therapeutic question of vital importance. It was a matter of course that the state had no press for the fastest possible solution of the problem because of the great losses to be expected during the coming winter. Indeed, the decision whether it would be necessary to reinforce the front-line surgical installations or whether, in view of the favorable results of an intensive sulfa treatment, the wounded soldiers could be expected to make the long trip back to the rear-area army hospitals, depended on it.
The Reich SS physician Grawitz had been commissioned to carry out the experiments concerned. The hearing of the evidence will show in detail under what circumstances the defendant Dr. Gebhardt became connected with these experiments.
Let us point out right now, however, that it was due exclusively to the defendant Gebhardt that the experiments were not conducted under the condition which had originally been ordered by the Reich SS physician Grawitz. The orders for these experiments provided that the test persons were to be shot at. The purpose was to cause wounds under warlike conditions and to work on them with sulfa drugs. There is no doubt that in view of infection through clothes particles and earth the experiments would have been far more dangerous than under the conditions under which they were actually conducted. Instead of earth sterilized pulverized glass was used. Uniform and clothes particles were replaced by sterilized cellulose.
As the evidence has shown, female members of the Polish resistance were used as test persons. All the test persons had been sentenced to death by courts-martial because of their activity in the resistance movement. We shall submit evidence with reference to the legal principles of these proceedings, which were instituted in accordance with a decree of the Governor General for the Polish occupied territories. We shall submit further evidence showing that the records of the people sentenced to death by courts-martial had been referred to a special pardon, board in the Government General, which decided on the final execution of the sentence. In the legal evaluation of these fact I shall examine the status of these prisoners with regard to international law and also raise the question what hearing the fact that these test persons had or had not volunteered has on the illegality of the experiments.
Furthermore, it is the purpose of the submission of evidence to give the court a clear idea of the manner by which the experiments themselves were carried out, as well as of the individual series of experiments and of their results. Lastly, the scientific knowledge gained from them and their pratical effects will be shown, particularly in connection with the two reports of the defendants Gebhardt and Fischer, presented at a conference at the Army Medical Academy in May 1943.
The directives issued on the basis of these experiments for the treatment of wound infections will be submitted in the course of the arguments.
But now we should like to point out an error that the chief prosecutor made in his description of the sulfa drug experiments in his opening statements. He asserts that during the many sulfa drug experiments some test persons were wounded, but were not treated with sulfa drugs. These experiment were conducted for the purpose of comparing the course of the infections treated with sulfa drugs with infections which had not been chemicotherapeutically treated. This statement is not correct if it is intended to mean that these persons were not treated at all. Rather, the facts are that all the test persons were treated and, if necessary, surgically. It was also observed in a great man cases of women treated with sulfa drugs that this was not sufficient to stop a general sepsis and that surgical treatment was necessary.
In this connection we may point to the statement of the expert witness, Dr. Alexander, who condeded that the large scars observed on test persons were caused by surgical operations to combat inflammations threatening the test persons' lives.
Evidence will further show that, while it is true that the defendants Gebhardt and Fischer carried out the experiments, they did everything they could, to save the lives of the test persons and to minimize the anticipated harmful effects after the introduction of the bacteria culture. If deaths occurred nevertheless they occurred owing to circumstances that could not be fully foreseen. Fewer deaths were to be expected since the defendants Gebhardt and Fischer or other surgeons of the Hohenlychen hospital stood ready at all times in order to perform operations at once, should occasion arise. Evidence will show as well that experiments were discontinued at once if deaths occurred. The defendants were the more ready to make this decision as the experiments carried out up to that time were sufficient to provide a clear solution to the problems raised and to suggest guiding principles that would serve as a sufficiently firm basis for military surgery and for the treatment with sulfa drugs.
I shall now deal briefly with the activity of the defendant Oberheuser in these experiments. Statements made in this connection by 4 witnesses examined in court were on the whole in agreement. According to them, the activity of this defendant was essentially confined to carrying out the preliminary examinations of these test persons, changing their dressings in accordance with directives of her superiors and taking the suitable chemico-therapeutic measures. Evidence will further show that the defendant Oberheuser came accidentally into contact with these experiments because her ward in the hospital of the camp was directly adjacent to the operating room, and because, in connection with the experiments, she had to vacate several rooms, in which the test persons were lodged. Since it was also her duty to treat test persons, and to care for them, she had to be personally present during the operatings in order to be familiar with the course of the surgical incision, as, otherwise, it would have been impossible for her to eliminate any congestion, for instance, which might be caused by the bandages.
Judicial scrutiny of the entire evidence must answer the question whether the conclusion can be drawn from these facts that the defendant Oberheuser wanted these experiments personally; whether, that is, in the sense of the law, she acted deliberately with regard to these experiments.
In the indictment the defendant Oberhouser is also accused of special responsibility for performing sterilization experiments. The prosecution was not in a position to present any evidence in support of this charge. Therefore, it will not be necessary to deal further with this point of the indictment in the case of the defendant Oberhouser.
Your Honors, I believe that what I have said will suffice to show you the aim of our defense. It cannot be up to me at the present stage of the proceedings to draw the legal conclusions that result from the application of the commonly recognized doctrines of international law and the general principles that derive from the criminal law of all civilized nations to the entire body of these facts.
This will be possible only in my summation, after the presentation of all the evidence. In doing so we shall have to take our point of departure from facts that do not first have to be proven, because they can be accepted as already known to the Tribunal. This is particularly true of special conditions brought about through the war.
But we must state at this time that the defense cannot shun its duty to examine in detail whether certain criminal laws mentioned in the indictment can be applied to the facts of this trial. This holds true for Decree No. 7 of the Military Government for Germany, as well as for Law No. 10 of the Control Council. In this connection I point out Article I of Decree No. 7. According to this provision the military courts established on the basis of this decree are not only competent to try and punish persons who are accused of having committed a punishable act designated as a crime in Article II of Law No. 10 of the Control Council, Rather, their competence is to extend also "conspiracy to commit such a crime," that is to say, to the fact of the conspiracy, as set forth in detail in Point I of the Indictment under the heading, "the Common Conspiracy."
Further, may I point out at this time the fact that Article II of Law No. 10 of the Control Council constitutes a considerable amplification of the concept of conspiracy as it is to be found in German criminal law. It is my opinion-which I shall substantiate later in detail - that as a basic principle the conduct of the defendants is to be judged according to German criminal laws. They were living under this law at the time in question and it is this law that was valid for them. In other words: it must be inquired.
whether the above-mentioned regulations do not violate a principle which is the essence of every modern system of penal law and which is expressed in the proposition, "nulla poona sine lege." A crime can be punished only when the criminality and punishment were loyally valid down before the act was committed. This principle is valid not only for the individual legal facts but also for the circumscription of the legal liability and for the regulation that determine the defendant's responsibility for a crime committed by another.
Furthermore, of special importance will be the examination of the question to what extent the fact that the defendants acted upon orders and in a special military capacity, exonerates then or at least serves as a mitigating circumstance. In this connection the relation between Article 47 of the German Military Criminal Code and the relevant provisions of Law No. 10 of the Control Council will have to be investigated.
The crux of the legal evaluation of the facts that the evidence has established will, however, be the scrutiny of the question whether the special war conditions under which the crimes were committed will also justify the assumption of special extenuating circumstances.
DR. SAUTEL: (Counsel for Defendant Dr. Kurt Blome) Your Honors, it is my duty to explain to you in what way the defense of Dr. Blome will be conducted.
1) The Subject of the Indictment against Dr. Blome is his alleged participation in the following complexes:
1) The Malaria Experiments, cf. Section 6C of the Indictment (Dec.
Book 4)
2) The Lost Experiments, cf. Section 6D of the Indictment (Dec.
Book 13)
3) The Sulfonamide Experiments, cf. Section 6E of the Indictment 2193 (Dec. Book 10)