c. Selections from the Argumentation of the Defense

_EXTRACT FROM THE FINAL PLEA FOR DEFENDANT SCHROEDER_[47]

* * * * *

I now come to the count of the indictment “Participation of the defendant Professor Dr. Schroeder in the sea-water experiments which were carried out in the Dachau concentration camp.”

In the case of these experiments, Professor Schroeder’s participation has been established, and he has accepted the responsibility as far as the preparation and the planning of these experiments are concerned. Professor Schroeder has mainly been accused by the prosecution of having permitted these experiments to be carried out in a concentration camp. The prosecution in its case against Professor Schroeder further stated that these experiments were not necessary at all, and it drew the conclusion that the experiments had only been ordered in order to torture people and in order to subject them to unnecessary cruelties; it also stated that it was clear that in no case had the experimental subjects been volunteers.

Therefore it is the task of the defense to show in the following paragraphs why from the point of view of Professor Schroeder, as Chief of the Medical Inspectorate of the Luftwaffe, these experiments had to be considered necessary, and just what reasons motivated him to give his approval for the carrying out of the experiments in a concentration camp.

The first question therefore is—why and from what considerations were there experiments ordered at all? It must be stated in advance here, that as far as Chief of the Medical Inspectorate Professor Schroeder was concerned, he did not have to examine the question whether one or the other method for making sea-water drinkable was more suitable; the problem for him existed in its entirety and it could not be divided. It was to rescue shipwrecked persons from death from lack of water and find the best method of protection against this danger. This problem had already been handled by various interested agencies for quite some time, and various individual questions for the solution of this problem had arisen. No method for making sea-water drinkable had been found and it was not clear what procedure should be advocated.

In the course of the year 1943 two methods for making sea-water drinkable were offered almost simultaneously. One of them, the so-called Wofatit method, had been developed by Dr. Schaefer in collaboration with I. G. Farben. Another, the Berkatit method, represented the invention of Stabsingenieur Berka.

It was quite clearly recognized that Schaefer’s Wofatit represented the ideal solution, because this method removed all the salt from the sea-water and changed it into drinking water, while the Berka method let the salt remain in the sea-water and only improved the taste of the sea-water through the addition of various sugar and vitamin drugs. We agree with the prosecution and the expert Professor Dr. Ivy when they state that a chemist in the course of one afternoon could have decided by means of a short experiment whether Wofatit or Berkatit was better. The participating agencies of the Medical Service of the Luftwaffe, Professor Schroeder and Dr. Becker-Freyseng, realized that quite clearly. From the chemical point of view this problem could also have been solved in a simple manner.

The difficulty which existed for Professor Schroeder with regard to this problem, however, lay in another field; this was the shortage of raw materials prevailing at the time, which had arisen in Germany because of the war. This circumstance made it possible for the Technical Office of the Luftwaffe to oppose the introduction of the Wofatit and to consider the Berkatit method, because the raw materials for the latter method could be procured without any difficulty and production could be started right away, since production facilities for the appropriate amounts were already in existence. It was different in the case of Wofatit. Considerable amounts of silver were required for its production, which could not be set aside for the production of Wofatit without damaging other production branches which also needed this metal. The Technical Office of the Luftwaffe, therefore, had already decided in favor of the introduction of Berkatit on 1 July 1944. Professor Schroeder, in his capacity as Chief of the Medical Inspectorate, however, could not have assumed the responsibility for having the units which were entrusted to his professional medical care equipped with the Berka method, because the danger existed that shipwrecked aviators, deceived by the improvement in the taste of sea-water, would drink it in larger amounts and thus increase the danger of their dying of thirst. The question also had to be clarified whether the shipwrecked crew of an airplane completely adrift at sea should go without any food or water whatsoever or whether they should consume a certain amount of sea-water rather than no water at all. This last question could only be clarified by carrying out an experiment on human beings. An experiment on animals would not suffice in this respect, because the distribution of water in the body of animals differs from that in a human being. By proving its medical objections, the Medical Inspectorate would also have been able to make its point of view heard by the Technical Office, if the medical expert, Professor Dr. Eppinger, one of the best known specialists for internal diseases not only in Germany, but in Europe, had not sided with the Technical Office. Professor Eppinger, in the conference at the Technical Office on 25 May 1944, expressly voiced the opinion that the Berka method was suitable, because for a certain time the human kidney could concentrate salt up to 3 percent, and because the vitamins which had been added to the Berka method would be suitable for speeding up the excretion of the salt from the human organism. This opinion was also shared at the same conference by the pharmacologist Professor Heubner, who is still one of the leading specialists in the field today.

Professor Schroeder would not have been able to turn down both methods. He would then have been reproached with the fact that he had not done everything within his power in order to make the position of shipwrecked German soldiers more bearable and to save them from dying of lack of water. It, therefore, becomes evident that these considerations on the part of Schroeder give us proof of his great feeling of responsibility; it was not easy for him to give his approval for the carrying out of such experiments.

Further developments also show clearly that Schroeder, in spite of the fact that he was extremely busy with official matters, devoted the greatest care and conscientiousness to this matter. He did not just decide to select Dachau as the place where the experiments were to be carried out. Originally he did not even harbor such a thought, but he intended to have the experiments carried out as a troop experiment in institutes which were owned by the Luftwaffe. He was primarily considering the Luftwaffe hospital at Brunswick for this purpose. On 1 July 1944 he turned to the chief medical officer of this hospital, who was competent in the matter, who, however, disapproved of it. This becomes evident from the certificate of Dr. Harriehausen, who was a Generalarzt at the time. Now Professor Schroeder began to consider the Military Medical Academy of the Luftwaffe in Berlin, where he intended to use the young cadets in this academy as experimental subjects. An inquiry which he made there was also unsuccessful. The reason why his requests were turned down in each case was that just at this particular time the OKW had issued a strict order to the effect that all convalescents were to be returned immediately from the hospitals to their units, and that the cadets of the academy were to be given a combat assignment. For the same reason, the suggestion of Professor Beiglboeck to carry out the experiments at the Tarvis Field Hospital also remained unsuccessful.

The further possibility of perhaps using German civilians for the experiments was completely out of question because at this time it was not possible to find young men in the age groups necessary in this case among the German civilian population, because all of them had either been conscripted for military service or for labor service. Professor Schroeder, therefore, had no choice but to follow the suggestion of considering Dachau concentration camp for his experimental station.

Professor Schroeder was not informed at all about conditions in a concentration camp. He thought the circumstances in such a camp were no different from those prevailing in a military camp, and only the names Dachau and Oranienburg were known to him as concentration camps. In this connection, it may be pointed out that the SS surrounded events in the concentration camps with an almost impenetrable veil of secrecy. Schroeder never listened to foreign radio stations. In the circles of his medical officers such events were never discussed. I may point out here that an express opponent of National Socialism, no less than the former Prussian Minister of the Interior, Severing, testified as a witness in the IMT trial that he had had no knowledge of the events in the concentration camps, and he had different sources of information at his disposal from Professor Schroeder. If Professor Schroeder had had any idea of what happened in concentration camps while he was away from Germany, then in view of his ideology as a faithful Christian, he would have refused such contact with concentration camps arising out of ordering these experiments. The decisive point in Schroeder’s favor is that the experiments were not to be carried out under the supervision and command of the SS camp leadership but completely separate, under the special leadership of a Luftwaffe medical officer and recognized specialist. As a further consideration, Professor Schroeder had to take into account that a useful result could be achieved in these experiments only if they could be carried out without interruption or hindrance. Because of the then prevalent almost daily air raids over the whole of Germany, no guarantee for an uninterrupted execution of these experiments could be given in any spot in Germany. However, it was known that air raids on concentration camps did not take place. Moreover, the charge cannot be brought against Professor Schroeder that he chose a concentration camp because he then had available defenseless tools who perforce had to subject themselves to the experiments. The very opposite is true. It was clear to Professor Schroeder that if he wanted to be successful he could carry out these experiments only with voluntary experimental subjects, for the director of the experiments was dependent on the willing cooperation of the experimental subjects, since in no other way could usable clinical data be achieved. Every involuntary experimental subject would have had the power to drop out of the experiment prematurely by feigning indisposition or pain, and, in this way, would have caused the director of the experiment to terminate it prematurely.

For the further evaluation of Professor Schroeder’s conduct, his conversation with the Reich Physician SS Grawitz must be considered especially. Professor Schroeder expressed the opinion to Grawitz that he could only work with healthy and voluntary experimental persons, whose age corresponded to that of the pilots under his command, and he made the further condition that the experimental persons should have the same physiological and racial requisites as the members of the German Wehrmacht in question. On direct examination, Professor Schroeder testified under oath that in this connection he talked to Grawitz about dishonorably discharged former members of the German Wehrmacht who, he knew, had been transferred to concentration camps because of the seriousness of their offenses.

Professor Schroeder could not assume, nor was any report on the part of Grawitz or the SS leadership made to him, that the SS leadership did not accept this suggestion and that instead of former members of the German Wehrmacht, gypsies had been decided upon for experimental purposes. Professor Schroeder, from his point of view, could rely on Grawitz to make arrangements according to his suggestions; he had no reason to expect that the SS would decide upon experimental subjects, against his well-founded wish, who, racially and physiologically did not have the prerequisites demanded by Professor Schroeder.

Because of the extremely heavy official duties caused for Professor Schroeder in his capacity as chief medical officer by the imminent collapse of German military resistance, this affair was only a small segment of his official duties and it must be admitted that he could not concern himself further with this affair.

A further consideration which Professor Schroeder had to bear in mind was whether such experiments were dangerous and possibly damaging to the health of the experimental subjects. Professor Schroeder had thoroughly studied this question and contemplated all possible aspects of the problem. Professor Schroeder also knew that sea-water is used by doctors for drinking cures and that the criterion of harmfulness depends on the doses. If there was medical supervision then there would be no danger to health. Therefore, the prosecution’s charge that he failed to take the possible hazards sufficiently into account is not justified.

Nothing shows the high degree of responsibility which characterized Professor Schroeder more than the instructions which the medical inspector issued to the man carrying out the experiments.

Professor Schroeder was convinced that the experiments held no danger to the experimental subjects and he expressed this opinion to Reich Physician SS Grawitz. Such danger was excluded particularly if and when the quantity of sea-water to be taken was regulated in accordance with the best medical experiences, and when it was definitely ordered that the experiments should be stopped at a certain time; and, furthermore, if the selection of the man in charge of the experiments guaranteed, on the basis of professional and ethical standards, that the experiments would be carried out in a humane manner, taking into account all medical and clinical considerations.

Therefore, it is fully justified if Professor Schroeder claims that he, from his position as a physician and a leading medical officer, considered all possible situations and attempted to avert all possible sources of danger as far as humanly possible. His direction to the man in charge to discontinue the experiments as soon as the experimental subject refused to take in further water, and if dangerous injury to the body were recognizable, must be mentioned in Schroeder’s favor. The person carrying out the experiments was furnished with all necessary assistants and a number of special co-workers from medical circles as well as all machinery to carry out his work in an orderly fashion.

The contention that both the planning and preparation of the experiments by Schroeder can stand any examination, that that planning was with full moral responsibility and with a true feeling of duty and humanity was reaffirmed, too, before this Tribunal by Professor Dr. Vollhardt, as well as by the American expert, Professor Ivy. It is simply unthinkable that instructions to one conducting experiments could be more correct from a medical point of view than those which Professor Schroeder worked out.

By this plea and the evidence, all charges against Professor Schroeder in the sea-water complex are refuted.

* * * * *

_EXTRACTS FROM THE CLOSING BRIEF FOR DEFENDANT BEIGLBOECK_

* * * * *

_The Persons Subjected to the Experiments_

As regards this subject [sea-water experiments] I want to put the defendant’s statements first (_Tr. pp. 8703-4_):

“DR. STEINBAUER: Did you have influence on the selection of the experimental subjects?

“DEFENDANT BEIGLBOECK: No. I was told at the Medical Inspectorate that arrangements had been made with the SS, and the SS in accordance with these arrangements would supply the experimental subjects. I did not have to worry about that.

“Q. Did you have orders to find out where the experimental subjects came from and what the specified circumstances and conditions were?

“A. No. That too was not a decision that I could have made, nor could the Luftwaffe.

“Q. Did you know before that gypsies had been used?

“A. I only found out that gypsies were coming into Dachau from the camp commandant. * * * I, therefore, do not feel that I am responsible either for the selection of the place where the experiments were carried out nor for the selection of those persons who were used.”

Defendant Professor Dr. Schroeder states regarding this (_Tr. pp. 3676-7_): [Transcriber Note: The text ends here. No further statement printed in the original text.]

_CROSS-EXAMINATION_

“MR. MCHANEY: Did you say anything to Beiglboeck about the experimental subjects?

“DEFENDANT SCHROEDER: No. We only spoke about the matter as such. I am not quite sure whether the question ‘concentration camp’ was already established at that time. Please, why don’t you ask Beiglboeck himself? I don’t know if it was before or after 1 June.

“Q. You didn’t say anything to Beiglboeck about making sure that only German volunteers were used in the experiments?

“A. That was a matter of course. There was no discussion about it. It was no subject of discussion. There wasn’t anything to be discussed.

“Q. Well, you didn’t tell him that then?

“A. I don’t know. I can’t tell you that under oath. I know that there were volunteers; and I certainly did not say that they had to be German because I didn’t take any other possibility into consideration at all and couldn’t have said it. These are all reconstructions which came up later, but at that time weren’t subjects of discussion at all.”

These were gypsies wearing the black badge of the asocials. The defendant states that the Sturmbannfuehrer in charge of the shipment told him that these persons were all asocials, who were interned on account of punishable offenses and not for social reasons. As we read in Kogon’s book “The SS State”[48] the black badge was in fact the designation of the asocials. We see from Document NO-179, Prosecution Exhibit 135, that SS Gruppenfuehrer Nebe suggested as persons to be used for the experiments asocial persons of mixed gypsy blood in Auschwitz concentration camp, who were in good health but at the same time unsuitable for labor. In the book on gypsies of the Royal Police Directorate Munich 1905, (_Beiglboeck 28, Beiglboeck Ex. 11_), we read:

“The greatest difficulty arises in securing a census of gypsies. The majority of them make every effort to obscure their identity through false statements or through a pretense of ignorance * * *.”

Their asocial character led to a series of police regulations, of which the most important are the following, as far as Germany is concerned:

Decree of 16 May 1938, RMB1.i.V. (_Bulletin of the Reich Ministry of the Interior_) pages 883-4, concerning measures against the gypsy nuisance.

Decree of 8 December 1938, RMB1.i.V., page 2105, concerning measures against the gypsy nuisance.

Decree of 10 November 1939, RMB1.i.V., page 2339, concerning employment records for gypsies.

Decree of 2 September 1939, Reich Law Gazette, I, page 1578. Prohibition of wandering of gypsies in the frontier zone[49] (_Sec. 4 of the ordinance concerning frontier protection_).

The witness Dorn states (_Tr. p. 8618_):

“As far as I know, the brown sign was done away with in Buchenwald in 1940 and all gypsies arrested for racial reasons were asocial. In other words, from 1940 on, there were no gypsies in the camp who were not designated in the filing system as asocial, as unwilling to work.”

The same witness states (_Tr. pp. 8661-2_):

“I can merely say that initially all gypsies were arrested for racial reasons. Later on this was changed. Some of the gypsies who were not declared asocial elements were removed from Dachau to the Labor House in the Rebdorf Bavarian penitentiary.”[50]

The famous Swiss Psychiatrist E. Bleuler, Zuerich, writes in his Textbook on Psychiatry, Berlin, Springer, 1937 on pages 397-400 about:

_Constitutional ethnical deviations_

“* * * A large number of asocials show what type of character they are while still young. Most of them are backward at school, even if their intelligence is good, because they adjust themselves too little and show too little industry and attention. Extraordinary achievements in any single direction are rare. Many of them are lazy, thieving, lying, cruel to animals and people, exacting, often deliberately and negligently damaging their own and others property, vain, unreliable, and egotistical. They cannot submit to authority, run away if they do not like anything; punishments are not respected, altogether neither sugar plums nor the whip have any visible effects. When carrying out mean tricks they develop cunning and energy, soon learn from others what is bad, with difficulty or not at all what is good, have an instinctive inclination for bad company.”

I have not made any special reference to asocial character to point out that we must be particularly careful when estimating their trustworthiness, on account of their tendency to mendacity and because of a certain psychotic cupidity concerning claims for compensation. This is not necessary where the judges are so experienced; I am referring to this fact for _legal_ reasons. It is well known that there is no legal definition of crimes against humanity. According to legal authors, such crimes can only be committed against persons who are persecuted for political, religious, and racial reasons.

To complete this chapter in its legal aspects, I would also like to mention the racial regulation of the gypsy question as far as it can be seen from German legislation. According to the 12th decree implementing the Reich Citizenship Law, dated 25 April 1943 (_Reich Law Gazette I, p. 268_), gypsies who are not yet German citizens cannot acquire citizenship. Section 4 of this decree reads:

“Jews and gypsies cannot become citizens. They cannot become citizens either subject to revocation, or protected persons * * *.”

According to the first decree implementing the Law for the Protection of German Blood and German Honor of 14 November 1935 (_Reich Law Gazette I, p. 1334_), marriage between gypsies and Germans is prohibited. Section 6 of this decree reads:

“A marriage shall furthermore not be contracted if the progeny to be expected from it would endanger the purity of German blood.”

In all fairness, however, one must admit in this connection that in the practice of the Third Reich no strict distinction seems to have been made when gypsies were put in a concentration camp, so that we should need the criminal record and family history of each person subjected to the experiments to be able to ascertain accurately the asocial character of each individual. It is a fact that in the gypsy book mentioned by me, 11 names of persons subjected to experiments are to be found, who must no doubt be characterized as asocial.

_Origin of the gypsies as to nationality_

As I have already mentioned, the gypsies themselves like to leave this point vague. Therefore no point of the evidence contains so many conflicting statements as this particular one. Beiglboeck himself cannot make any definite statements as to this matter, but as he used to speak to all of them, they must all have understood German. Among the names we also find plenty of Slav names, having a Polish, Ukrainian, or Southern Slav sound. In the old Austrian Monarchy, these people were jumbled together a good deal and in their wanderings they also entered German Reich territory. After the break-up of the Monarchy, some of the so-called Carpatho-Russians became citizens of Hungary or Slovakia. In the eastern provinces of the German Reich, there were many Poles or Germanized persons with Polish names. The mere name, therefore, admits of no conclusion as to nationality. The fact, however, that most of them could make themselves understood in the German language allows the conclusion that none of the persons subjected to experiments were imported from the _Allied_ countries.

* * * * *

The witness Fritz Pillwein states in his affidavit (_Beiglboeck 32, Beiglboeck Ex. 21_):

“The experimental subjects in most cases spoke their gypsy dialect. Many of them were obviously of Slav origin. I did not see identification papers, however, as this was quite impossible in a concentration camp and as I did not ask them anything of the kind, I cannot make any exact statement regarding the _nationality_ of the individual gypsies. I did not ask them because the gypsies were very primitive people, and some of them did not even know their own birthdays.”

The witness Mettbach stated when questioned by Dr. Steinbauer (_Tr. p. 9729_):

“DR. STEINBAUER: What language did you speak among yourselves?

“WITNESS METTBACH: Mostly gypsy language.

“Q. What was the citizenship of the individual experimental subjects?

“A. Mostly they were Germans. There were a lot of Austrians and a lot of them came from East Prussia and Upper Silesia and the Burgenland [Province bordering Austria-Hungary].”

When questioned by counsel for the prosecution the witness Mettbach stated (_Tr. pp. 9737-8_):

“MR. HARDY: Were there any foreign nationals—that is, men other than Germans—used in these experiments?

“WITNESS METTBACH: Austrians and Burgenlaender and some from Upper Silesia and East Prussia.

“Q. No Czechs?

“A. No.

“Q. No Russians?

“A. No.

“Q. No Poles?

“A. A couple of them talked Polish but I think they came from Upper Silesia or East Prussia. That very often happens. Lots of Upper Silesians can talk Polish.”

When questioned by counsel for the prosecution the witness Joseph Vorlicek stated (_Tr. p. 9388_):

“MR. HARDY: Do you know the nationality of the various subjects?

“WITNESS VORLICEK: For the most part I do.

“Q. Can you tell the Tribunal the nationality of the various subjects, as near as you can recollect?

“A. There were Czechs, Poles, Hungarians, Austrians, and Germans.”

During direct examination the witness Vorlicek stated (_Tr. p. 9388_):

“MR. HARDY: Well, did they ever volunteer for any special detachment or some such thing?

“WITNESS VORLICEK: Well, this is how it happened. Since I know the Slavonic language, and there were some Czechs among them, I spoke to them.”

Therefore, the defendant’s statement, that the persons concerned were Slovaks from the Bratislava area (Bratislava is the capital of Slovakia) is not without foundation.

_The Rations of the Gypsies_

The defendant states that the persons subjected to the experiments got the Luftwaffe flight rations before the experiments, and the same rations after the experiments, and that there was a hitch only once due to the bombing of the provisions warehouse. During the experiments, the persons got shipwreck rations. The Englishman, Ladell also says that he gave his soldiers shipwreck rations during the experiments. On this point, see extract from Beiglboeck 20, Beiglboeck Exhibit 8:

“* * * In all the experiments the food given was the ‘shipwreck diet’; this comprises 1 ounce each per day of biscuits; sweetened condensed milk; butter, fat, or margarine; and chocolate.”

That food was provided is evident from two documents. (_Beiglboeck 26, Beiglboeck Ex. 13_; _Beiglboeck 27, Beiglboeck Ex. 14_.)

The witness Massion states in his affidavit (_Beiglboeck 31, Beiglboeck Ex. 12_):

“Before beginning the experiment, the experimental subjects were given the same food as that supplied to the flying personnel of the Luftwaffe, that is to say, a very nutritious diet of sardines, butter, cheese, milk, meat, etc. During the experiment, 4 persons assigned to the thirst group received no food whatsoever, the others received sea-emergency rations, with chocolate, etc. I know that on one occasion difficulties arose in the food supply which possibly were connected with an air raid. I was sent to Frankfurt with the urgent order to obtain sea-emergency rations there.”

* * * * *

_The Treatment of Gypsies_

Beiglboeck treated the experimental subjects in a humane manner. It is natural that he insisted the strict observance of the whole experiment was not to be a farce. The whole experiment was a constant struggle against the understandable attitude of the experimental subjects who wanted to save themselves by cheating the director of the experiment (by secretly drinking water and pouring away the urine), and by obtaining special favors, in particular cigarettes, which in 1944 were hard to get—and that not only in the concentration camps.

In regard to this point I refer to a document in which Professor Dr. Dennig writes (_Beiglboeck 29, Beiglboeck Ex. 15_):

“While the people are able for the first few days successfully to fight their thirst with good grace, their strength of will is insufficient during the later stage; they devise extremely subtle means of obtaining water, e. g., the case of Juergensen.”

Witness Ernst Mettbach states in regard to this point when questioned by Dr. Steinbauer (_Tr. p 9722_):

“DR. STEINBAUER: The professor forbade your bringing them water. Did you nevertheless bring them water? Now, be honest.

“WITNESS METTBACH: Several times I brought my relative, Mettbach, water to drink.

“Q. Where did you give it to him?

“A. Sometimes I smuggled it in to the experimental station myself. Sometimes I stuck it through the fly screen on the window which was a little bit loose.”

Later we shall speak in detail about the secret drinking of water. At this point I just want to say in general that every drop of water which was consumed in secret not only diminished the scientific value of the experiments, but is also of greatest significance from the point of view of criminal law, because it decreased the feeling of thirst. As I said before, the treatment of the experimental subjects was a humane one. In regard to this point compare the statement of Dr. Lesse (_Bieglboeck 14, Bieglboeck Ex. 20_):

“Q. What was his attitude to the prisoners in general?

“A. Very humane and benevolent.”

Witness Massion states in his affidavit (_Beiglboeck 31, Beiglboeck Ex. 12_):

“Dr. Beiglboeck treated the prisoners as humanly as ordinary patients. He was rough to them only when they obtained drinking water contrary to orders. I know definitely that none of the experimental subjects were turned over to the SS for punishment because of any offenses.”

Witness Pillwein states in his affidavit (_Beiglboeck 32, Beiglboeck Ex. 21_):

“Q. How did Beiglboeck treat the inmates?

“A. Beiglboeck treated the patients well, which was a striking contrast to the treatment which we inmates received from the SS. Beiglboeck only became very angry when the gypsies lied to him regarding the drinking of water, and when he found out about it from the blood test.”

* * * * *